Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07901449. John F. Vogt, Judge.
Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Holding a shotgun in his hand, Anthony Orona told Candice Clark that he and Oscar Ballesteros wanted her boyfriend Carlos Gonzalez’s truck. He threatened to kill her and her friend Elizabeth Hendricks if she did not tell Gonzalez to pick her up in his truck, but he promised not to hurt anyone if she cooperated. Clark called Gonzalez and asked him to pick her up in the alley down by the tracks, where Orona and Ballesteros went after putting on gloves and bandannas. As Gonzalez drove up in his truck, Clark waved him away, Orona and Ballesteros ran toward him, and he started to drive away. A shot was fired. He died of a gunshot wound to the head.
A jury found Ballesteros guilty of first degree murder during the attempted commission of a carjacking for the benefit of a criminal street gang (count 1; Pen. Code, §§ 186.22, subd. (b)(1), 187, subd. (a), 190.2, subd. (a)(17)(L)) and guilty of active participation in a criminal street gang (count 2; § 186.22, subd. (a)). The court, inter alia, sentenced him to a term of life without the possibility of parole on the special circumstance murder and a 10-year term on the gang-benefit enhancement (count 1) and imposed and stayed a three-year term on the gang-participation charge (count 2). We reverse the judgment as to the count 2 gang-participation charge for insufficiency of the evidence, strike the count 1 gang-benefit enhancement from the judgment for lack of statutory authorization, modify the judgment to correct sentencing errors involving a probation revocation fine and custody credits, and otherwise affirm the judgment.
Later statutory references are to the Penal Code unless otherwise noted.
The jury returned like verdicts as to Orona, who was tried jointly but who appeals separately. (People v. Orona (F057931).) Later references to the count 1 criminal street gang allegation and enhancement (§ 186.22, subd. (b)(1)), respectively, are to “gang-benefit allegation” and “gang-benefit enhancement.” Later references to the count 2 substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)) are to “gang-participation charge.”
BACKGROUND
On August 22, 2007, the district attorney charged Ballesteros by information with murder (count 1; Pen. Code, § 187, subd. (a)) and active participation in a criminal street gang (count 2; § 186.22, subd. (a)) and alleged, as to the murder, inter alia, personal and intentional discharge of a firearm by a principal proximately causing death (§ 12022.53, subds. (d), (e)(1)), commission of the murder in the attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)), commission of the murder in the attempted commission of a carjacking (§ 190.2, subd. (a)(17)(L)), an intentional killing by an active participant in a criminal street gang to further the activities of a criminal street gang (§ 190.2, subd. (22)), and commission of the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)) on February 17, 2007. On September 4, 2007, he pled not guilty and denied the allegations.
On May 19, 2009, a jury found Ballesteros guilty of first degree murder (count 1; § 187, subd. (a)) and the gang-participation charge (count 2; § 186.22, subd. (a)) and found true both the allegation of commission of the murder in the attempted commission of a carjacking (count 1; § 190.2, subd. (a)(17)(L)) and the gang-benefit allegation (count 1; § 186.22, subd. (b)(1)). The jury found not true the allegations of personal and intentional discharge of a firearm by a principal proximately causing death (§ 12022.53, subds. (d), (e)(1)), commission of the murder in the attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)), and an intentional killing by an active participant in a criminal street gang to further the activities of a criminal street gang (§ 190.2, subd. (22)).
The jury made no finding on the allegation of personal and intentional discharge of a firearm proximately causing death (§ 12022.53, subd. (d)) and found the other three allegations – personal and intentional discharge of a firearm by a principal proximately causing death (§ 12022.53, subds. (d), (e)(1)), commission of the murder in the attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)), and an intentional killing by an active participant in a criminal street gang to further the activities of a criminal street gang (§ 190.2, subd. (22)) – not true.
On June 17, 2009, the court imposed a term of life without the possibility of parole on the special circumstance murder (count 1; §§ 187, subd. (a), 190.2, subd. (a)(17)(L)), imposed a 10-year term on the gang-benefit enhancement (count 1; § 186.22, subd. (b)(1)), and imposed and stayed an aggravated three-year term on the gang-participation charge (count 2; § 186.22, subd. (a)).
ISSUES ON APPEAL
Ballesteros argues that (1) an insufficiency of the evidence of the gang-participation charge and the gang-benefit allegation is in the record, (2) the denial of his motion to sever the gang-participation charge and bifurcate the special-circumstance gang allegation and the gang-benefit allegation prejudiced him, (3) the denial of his motion to dismiss the entire venire on the basis of comments by prospective jurors during voir dire prejudiced him, (4) CALCRIM No. 226 prejudiced him on a record with no evidence of any witness’s character for truthfulness, (5) CALCRIM Nos. 334 and 335 prejudiced him by requiring him to prove that a witness is an accomplice, by permitting the jury to use accomplice testimony against him if slight supporting evidence connects him to the crime, and by failing to inform the jury that corroborating evidence must tend to connect him with the commission of the crime in a way that reasonably satisfies the jury the accomplice is telling the truth, (6) CALCRIM No. 370 prejudiced him due to the absence of an admonition to the jury not to apply the instruction to the gang-benefit allegation, (7) the omission of sua sponte instruction on second degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included offenses prejudiced him, (8) the omission of sua sponte accomplice instruction as to a specific witness prejudiced him, (9) reversal of the judgment is imperative since prejudicial error arose from the cumulative impact of individual errors, (10) the imposition of a 10-year term on the gang-benefit enhancement is not statutorily authorized due to the imposition of a term of life without the possibility of parole on the special circumstance murder, (11) the imposition of a $10,000 parole revocation fine is not statutorily authorized due to the imposition of a term of life without the possibility of parole on the special circumstance murder, and (12) the court awarded him two days fewer than the number of days of presentence custody credits to which he is statutorily entitled.
Ballesteros joins in the issues on appeal in People v. Orona (F057931) and requests that we take judicial notice of the briefing in that case. We grant his request. (Evid. Code, § 452, subd. (d).)
DISCUSSION
1. Sufficiency of the Evidence
Ballesteros argues that an insufficiency of the evidence of the gang-participation charge and the gang-benefit allegation is in the record. The Attorney General argues the contrary.
First, we turn to the gang-participation charge. The parties stipulated “as follows: One, the Lewis Street Bulldog gang is a criminal street gang as defined in Penal Code Section 186.22. It’s further stipulated that Anthony Orona and Oscar Ballesteros are members of the Lewis Street Bulldog gang.” Ballesteros argues that despite his stipulation “there was insufficient evidence to support the knowledge element of the offense.”
The gang-participation charge “has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element, ” our Supreme Court observes. (People v. Lamas (2007) 42 Cal.4th 516, 523.) “The second element is ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity, ’ and the third element is that the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’” (Ibid., citing § 186.22, subd. (a).) The Attorney General argues that the stipulation “appears to resolve the claim here” not only by requiring “the admission or agreement that members of the Bulldogs engage in a ‘pattern of criminal gang activity’” but also by necessitating “knowledge – that is, he knew members of the Bulldogs engage in a pattern of criminal gang activity.” We disagree.
In relevant part, the statute provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished….” (§ 186.22, subd. (a), italics added.)
The scope of the prosecutor’s burden of proof was broader than the scope of Ballesteros’s stipulation. “‘When a defendant who has asserted and received his right to trial, and has waived none of his constitutional rights, elects to stipulate to one or more, but not all, of the evidentiary facts necessary to a conviction of an offense, ’” our Supreme Court observes, “the prosecutor still was required to prove the remaining elements of the offense.” (People v. Newman (1999) 21 Cal.4th 413, 421-422, italics in original and italics added.) As Ballesteros argues, he “stipulated that he was a member of the Lewis Street Bulldogs, a criminal street gang” but “did not stipulate that he actively participated in the gang with knowledge that members of the gang engage in or have engaged in a pattern of criminal gang activity.” (Italics in original.) As our Supreme Court observes, the gang-participation charge “limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang’s pattern of criminal gang activity.” (People v. Castenada (2000) 23 Cal.4th 743, 749, italics added.)
“A gang engages in a ‘pattern of criminal gang activity’ when its members participate in ‘two or more’ statutorily enumerated criminal offenses (the so-called ‘predicate offenses’) that are committed within a certain time frame and ‘on separate occasions, or by two or more persons.’” (People v. Zermeno (1999) 21 Cal.4th 927, 930, quoting § 186.22, subd. (e).) Here, as Ballesteros argues, the record shows one actual perpetrator and one aider and abettor committing one predicate offense on one occasion. (Cf. Zermeno, supra, at pp. 931-933.) The Attorney General does not argue the contrary. Instead, he argues that Ballesteros’s “verbal and physical conduct” establishes “ample circumstantial evidence” from which a reasonable inference could arise that “Bulldog members engage in a pattern of criminal gang activity.” Yet the stipulation established only that the Lewis Street Bulldogs specifically, not that the Bulldogs generally, were a criminal street gang. On that record, “only the [Lewis Street Bulldogs], and not some larger [Bulldog] group, may be considered in assessing appellant’s claims of evidentiary insufficiency.” (People v. Williams (2008) 167 Cal.App.4th 983, 989.)
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence – credible and reasonable evidence of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318 (Jackson); People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).) That standard, which applies to circumstantial and direct evidence alike, requires us to presume in support of the judgment the existence of every fact a reasonable trier of fact reasonably could have deduced from the evidence. (Prince, supra, at p. 1251.) By that standard, our review of the record persuades us that an insufficiency of the evidence of the gang-participation charge is in the record. (Ibid.) Further proceedings on that charge are barred by the double jeopardy clause (U.S. Const., 5th Amend.) under the rule of Burks v. United States (1978) 437 U.S. 1 and Greene v. Massey (1978) 437 U.S. 19. (People v. Pierce (1979) 24 Cal.3d 199, 209-210).
Our holding moots Ballesteros’s argument that CALCRIM No. 1400 prejudiced him due to the omission of the statutory definition of “pattern of criminal gang activity.”
Second, we turn to the gang-benefit allegation. With commendable candor, Ballesteros acknowledges the sufficiency of the evidence that the crimes were “done in association with the gang” but argues that the crimes “were not done to facilitate other gang activity.” (Italics in original.) The core of his argument is a Ninth Circuit case, Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), which a later Ninth Circuit case characterized as concluding “that the specific intent required under § 186.22(b) must be to facilitate other criminal activities by gang members.” (Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1079, fn. 3 (Briceno), citing Garcia, supra, at pp. 1103-1104, italics in original.)
Several Court of Appeal opinions have repudiated the Ninth Circuit’s reasoning in Briceno and Garcia. (See People v. Romero (2006) 140 Cal.App.4th 15, 19 (disagreeing with and declining to follow “Garcia’s interpretation of the California statute”); People v. Hill (2006) 142 Cal.App.4th 770, 774 (observing that Garcia “misinterprets California law”); People v. Vazquez (2009) 178 Cal.App.4th 347, 354 (rejecting “the Ninth Circuit’s attempt to write additional requirements into the statute”). After briefing by the parties here was complete, our Supreme Court, expressly agreeing with Romero, Hill, and Vazquez, held “that the scienter requirement in section 186.22(b)(1) – i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang members’ – is unambiguous and applies to any criminal conduct.” (People v. Albillar (2010) __ Cal.4th __, __ [2010 Cal. LEXIS 13054, 39-40], italics in original.) Ballesteros’s argument is meritless.
2. Motion to Bifurcate
Ballesteros argues that the denial of his motion to sever the gang-participation charge and bifurcate the special-circumstance gang allegation and the gang-benefit allegation prejudiced him. The Attorney General argues the contrary.
Ballesteros uses “bifurcate” to refer to the special-circumstance gang allegation, the gang-benefit allegation, and the gang-participation charge alike, but “bifurcate” refers to allegations and “sever” refers to substantive charges. (See People v. Burnell (2005) 132 Cal.App.4th 938, 946, fn. 5.)
On April 15, 2009, both parties filed documents addressing the gang evidence issue. The prosecutor’s trial brief announced his intent to call a police gang expert to testify about the Lewis Street Bulldog gang, Orona’s and Ballesteros’s membership in the gang, documented ties of others to the gang, and conduct showing the involvement of Orona, Ballesteros, and others in the gang. “Gang evidence will be central in this case” to prove the criminal street gang charge, the criminal street gang special circumstance allegation, and the gang-benefit allegation, he argued, and “will play a prominent role in establishing a motive for the carjacking that led to the homicide” on the theory that Orona and Ballesteros targeted Gonzalez after Clark disrespected them “in the heart of Lewis Street Bulldog turf.” A defense motion in limine, which sought to sever the gang-participation charge, the special-circumstance gang allegation, and the gang-benefit allegation, argued that the gang evidence was “so minimally probative” but “so inflammatory” as to threaten “to sway the jury to convict regardless of [his] actual guilt.”
On April 16, 2009, the court held a hearing on the gang evidence issue. The prosecutor argued that the evidence was essential to the jury’s understanding of why Orona and Ballesteros felt disrespected when Clark, a 15-year-old group home runaway, showed “attitude” when she asked why Orona wanted to know where Elizabeth was. “Nigger, I’m an east side Bulldog. You’d better not scrape me off, ” he replied. The prosecutor argued that not allowing “some 15-year-old girl to mouth off to them” was “really what prompts what happened” and that “people who are not gang members” would have “simply brushed off” a similar exchange. Orona and Ballesteros were “teaching her a lesson, ” the prosecutor emphasized, not only by “going after her boyfriend” but also by “drawing her into it.” In reply to the court’s questions, the prosecutor stated that neither Ballesteros nor Orona knew Gonzalez and that both Clark and Elizabeth “entered pleas to carjacking, stipulated nine-year terms.”
For brevity, not from disrespect, references to the two witnesses with the same last name – Elizabeth Hendricks and her former husband Matthew Hendricks – are solely by first name after initial references by both names.
The defense argued a different interpretation of the facts – that three times before the shooting Clark went to Elizabeth’s house (where she did drugs and was “totally in the conversation about what’s going to happen”), “voluntarily” called Gonzalez to tell him where to meet her, and showed that “people who are very young can be very wicked” (contrary to the prosecutor’s portrayal of her as a “little girl who did not know what was going on and who was being made to do things by the gang”). After Orona asked Clark where Elizabeth was, she told him, “You just better leave me the fuck alone, ” and he replied, “All right. You’ve got balls.” The defense argued that a detective’s notes “reflect that in fact little Miss [ ] Clark was the one who instigated any talk of carjacking her boyfriend.”
In a series of rulings, the court denied the defense motion, acknowledged a standing objection to the gang expert’s testimony on statutory and constitutional grounds alike, accepted the stipulation that the Lewis Street Bulldogs were a criminal street gang of which Orona and Ballesteros were members, and denied later motions to reconsider. Denying one motion to reconsider, the court noted, “The ruling originally was predicated on, among other things, the cross admissibility of evidence on the issue pertaining to gang activity and the events relating directly to the homicide.” Denying a later motion to reconsider, the court observed that “case law is on the side of not bifurcating.” We agree.
“In cases not involving the gang enhancement, ” our Supreme Court held, “evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez), italics in original.) On the other hand, since “evidence of gang membership is often relevant to, and admissible regarding, the charged offense, ” evidence such as “the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries…can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime, ” the court noted. (Ibid.) Insofar as “the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050.)
The scope of the court’s discretion in ruling on a motion to sever a substantive count and in ruling on a motion to bifurcate a special allegation is broad. “Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime, ” our Supreme Court observed, “a court may still deny bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1050.) “In the context of severing charged offenses, ” the court elaborated, “‘additional factors favor joinder. Trial of the counts together ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials, ’” the court added. (Ibid., quoting Frank v. Superior Court (1989) 48 Cal.3d 632, 639 (Frank).) So “when the evidence sought to be severed relates to a charged offense, the ‘burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’” (Hernandez, supra, at p. 1050, quoting Frank, supra, at p. 938.) Our review of the court’s rulings persuades us Ballesteros fails to satisfy his burden.
“Even if a trial court’s severance or joinder ruling is correct at the time it was made, ” however, “a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’” (People v. Mendoza (2000) 24 Cal.4th 130, 162, quoting People v. Arias (1996) 13 Cal.4th 92, 127.) That is not the state of the record here. The gang expert testified about the importance to the gang of establishing territorial dominance over an area, instilling fear by acts of violence, and retaliating against anyone who cooperates with law enforcement and against anyone outside the gang who disrespects anyone inside the gang. He opined that the attempt to carjack Gonzalez benefitted the gang’s members by showing their willingness to commit serious crimes for each other and could benefit the Lewis Street Bulldogs, too, by creating fear of the gang in the community.
The evidence that the court’s rulings denying severance and bifurcation brought into Ballesteros’s trial was not markedly inflammatory. Conspicuously absent was any evidence that he or Orona committed any violent crime other than the charged offenses. “Of course, because the culture and habits of gangs are matters which are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact’ (Evid. Code, § 801, subd. (a)), opinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper.” (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9, citing People v. Gardeley (1996) 14 Cal.4th 605, 617.) The gang expert’s testimony was admissible on the issue of motive.
Even so, Ballesteros focuses on the court’s comment about the “unusual number of for-cause excuses, ” “anecdotal statements about knowledge of certain types of gang-related crimes, ” and “anecdotal experiences involving murder, ” on the basis of which he argues that “the jury selection process demonstrated a high degree of anti-gang prejudice in the local community.” Yet he cites no authority for the premises implicit in his argument that seating a fair jury is impossible in a gang case and that the rules of law governing severance and bifurcation are inapplicable to gang cases. To the contrary, as the court thoughtfully added, a ruling in his favor on his motion ultimately could not “accomplish anything” since “the jury is going to have to deal with…gang activity being factually at issue.”
Relying on People v. Albarran (2007) 149 Cal.App.4th 214, a case in which “the gang evidence was not sufficient to prove the gang allegations” (id. at p. 226), Ballesteros quotes the opinion to argue that the “paramount function” of the gang evidence “was to show [his] criminal disposition” (id. at p. 228). The paramount function of the gang evidence here was not to show his criminal disposition but to prove the gang-participation charge, the special-circumstance gang allegation, and the gang-benefit allegation. Though not sufficient to prove the gang-participation charge or the special-circumstance gang allegation, that evidence was sufficient to prove the gang-benefit allegation. (Ante, part 1.) Albarran is inapposite.
“The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913, citing Estelle v. McGuire (1991) 502 U.S. 62, 70.) The court’s rulings denying severance of the gang-participation charge and bifurcation of the special-circumstance gang allegation and the gang-benefit allegation did not render the trial fundamentally unfair.
3. Voir Dire
Ballesteros argues that the denial of his motion to dismiss the entire venire on the basis of comments by prospective jurors during voir dire prejudiced him. The Attorney General argues the contrary.
The foundation of Ballesteros’s argument is that during voir dire “several [prospective] jurors spoke about their feelings about gangs, ” “a newspaper article was published about an incident in which a Bulldog gang member held down his seven-year-old son while another gang member tattooed the child with a gang tattoo, ” a prospective juror who knew the gang expert said he “would tend to believe him, ” and a prospective juror who was a retired police officer said he “would be biased toward both defendants.” By the time two-and-one-half days of voir dire had elapsed, he argues, “over 50% of the people on the jury panel referred to gangs and stated that they couldn’t be fair.”
Thumbnail sketches of colloquies between counsel and four prospective jurors on voir dire illuminate Ballesteros’s argument. Defense counsel asked one, “Are you telling me that just the status of my client being a Bulldog gang member is all you need to hear to convict him without hearing any evidence from the district attorney?” The prospective juror replied, “No, but it does weigh, you know, heavily in some of my views, personal views.” His attorney asked, “How heavily?, ” to which the prospective juror replied, “Very.” His attorney asked, “That you can’t put it aside and give my client a fair trial?, ” to which the prospective juror replied, “Possibly, yes.”
Defense counsel asked whether another prospective juror was going to hold against her client “that some supposed Bulldog member made his seven-year-old son get a tattoo, ” to which the prospective juror, acknowledging the news had nothing to do with her client, nonetheless commented about how “you hear it so much that, you know, have this concept of they’re all like that. Why are they in the first place in gangs, you know.” Yet another prospective juror disclosed that he was the gang expert’s coach in college during the “‘93 and ‘94 seasons at Fresno State” and stated the belief he could fairly and impartially assess his testimony but candidly replied, “Yes, ” to the question whether he “would tend to believe him.” A different prospective juror disclosed that he was a retired police officer whose motorcycle officer neighbor almost lost his life in a shooting, who himself suffered bruised ribs and a lacerated liver in an assault by a gang member, who was “not very fond of gang members, ” and who “would probably be definitely biased” against both defendants.
The court excused all four of those prospective jurors, along with eight others, for cause. Orona and Ballesteros moved to discharge the entire venire. The court rhetorically inquired of counsel, “How do you propose selecting a jury in an absolute factual vacuum where the issues of gangs are not brought up?” The court declined counsel’s invitation to revisit the issue of severance and bifurcation and denied the motion to discharge the entire venue.
The standard of review of the court’s ruling is abuse of discretion. (People v. Medina (1990) 51 Cal.3d 870, 889.) Our Supreme Court emphasizes that a court has “broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required” and that “discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.” (Ibid.) Ballesteros argues that, on the record here, discharge of the entire venue was imperative. We disagree.
The broad swath of destruction that criminal street gangs wreak on everyday life is indisputable. The Legislature has found “that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods” and whose “activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected.” (§ 186.21.) So the notion that voir dire in a gang case might present challenges absent from a non-gang case should be no surprise. “Just as a finder of fact is in a better position than the reviewing court to judge the credibility of a witness, the trial judge is in a better position to gauge the level of bias and prejudice created by juror comments.” (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466.) Our review of the record satisfies us that the court did not commit an abuse of discretion in denying Ballesteros’s motion to dismiss the entire venire. Since we reject the statutory premise of his constitutional argument, his due process claim likewise fails. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3 (Sanders).)
4. CALCRIM No. 226
Ballesteros argues that CALCRIM No. 226 prejudiced him on a record with no evidence of any witness’s character for truthfulness. The Attorney General argues that Ballesteros forfeited his right to appellate review and, in the alternative, that the instruction did not prejudice him.
Preliminarily, we address the Attorney General’s forfeiture argument. Ballesteros cites to nothing in the record showing an objection to, or a request for modification of, CALCRIM No. 226. Nor does he argue that the instruction misstates the law. Instead, he argues that a single sentence in the instruction “was incorrect because the evidence did not support it and the jury could have misconstrued the instruction to [his] detriment.” His failure to request modification of the instruction forfeits his right to appellate review. (People v. Guerra (2008) 37 Cal.4th 1067, 1138.)
The sentence in CALCRIM No. 226 to which Ballesteros now objects reads, “If the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.”
Even if Ballesteros had not forfeited his right to appellate review, his argument is incoherent. He argues that he suffered prejudice “because the prosecution offered no evidence regarding its witnesses [sic] reputation in the community” even though the sentence he challenges applies by its own terms only if “the evidence establishes that a witness’s character for truthfulness has not been discussed.” (Italics added.) Absent evidence to the contrary, the jury is presumed to have followed the charge to the jury. (People v. Mendoza (2007) 42 Cal.4th 686, 699 (Mendoza).) His assertion that the sentence he challenges “permitted the jury to presume the witnesses’ credibility from the absence of evidence and gave unwarranted support to the credibility of the prosecution’s witnesses” is meritless.
5. CALCRIM Nos. 334 & 335
Ballesteros argues that CALCRIM Nos. 334 and 335 prejudiced him by requiring him to prove that a witness is an accomplice, by permitting the jury to use accomplice testimony against him if slight supporting evidence connects him to the crime, and by failing to inform the jury that corroborating evidence must tend to connect him with the commission of the crime in a way that reasonably satisfies the jury the accomplice is telling the truth. The Attorney General argues the contrary.
First, we address Ballesteros’s burden-of-proof and slight-supporting-evidence challenges. Solely with reference to Maritanya Cardiel, the focus of his disagreement with CALCRIM No. 334 (“Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice”) is the sentence, “The burden is on [him] to prove that it is more likely than not that Maritanya Cardiel was an accomplice.” As to Cardiel, Clark, and Elizabeth, the focus of his disagreement with both CALCRIM No. 334 and CALCRIM No. 335 (“Accomplice Testimony: No Dispute Whether Witness Is Accomplice”) is the following:
The quoted text is from the reporter’s transcript of the court’s instruction to the jury with CALCRIM No. 334, which is substantially the same as the reporter’s transcript of the court’s instruction to the jury with CALCRIM No. 335 and as the written versions of both instructions in the clerk’s transcript.
“Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendants are guilty of the charged crime[] and it does not need to support every fact mentioned by the accomplice in the statement or about which the accomplice testified.
“On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. Supporting evidence must tend to connect the defendant to the commission of the crime. The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice.”
The instructions Ballesteros challenges correctly state the law. Section 1111 prohibits conviction on the testimony of an accomplice without corroboration by other evidence tending to connect the defendant with the commission of the crime. (See People v. Zapien (1993) 4 Cal.4th 929, 982.) “In enacting section 1111, the Legislature intended to eliminate the danger of a defendant being convicted solely upon the suspect, untrustworthy and unreliable evidence coming from an accomplice, who is likely to have self-serving motives that affect his credibility.” (People v. Belton (1979) 23 Cal.3d 516, 526.) Corroborating evidence that tends to implicate the defendant “‘and thus relates to some act or fact that is an element of the crime’” is sufficient even if slight and entitled to little consideration when standing alone. (People v. Richardson (2008) 43 Cal.4th 959, 1024, quoting People v. Avila (2006) 38 Cal.4th 491, 563 (Avila).)
In relevant part, the statute provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (§ 1111.)
The federal due process clause “‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’” (Martin v. Ohio (1987) 480 U.S. 228, 231-232, quoting In re Winship (1970) 397 U.S. 358, 364.) The corroboration requirement “in section 1111 has no bearing on the prosecution’s proof of any element of the charged crime, ” however, so “there is no constitutional impediment to placing on a defendant the burden of proving, by a preponderance of the evidence, a witness’s status as an accomplice.” (People v. Frye (1998) 18 Cal.4th 894, 968 (Frye), overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 420 (Doolin).)
On the premise that Carmell v. Texas (2000) 529 U.S. 513 (Carmell) holds that a state corroboration requirement is part of the quantum of evidence necessary to convict, Ballesteros argues that CALCRIM Nos. 334 and 335 lowered the prosecution’s burden of proof in violation of due process by permitting the jury “to find corroboration based on slight evidence.” Our reading of Carmell differs from his.
The issue before the United States Supreme Court in Carmell was whether a state statute that required both a rape victim’s testimony and corroborating evidence to convict at the time of the rape at issue but that later required only a rape victim’s testimony alone to convict could “be applied in a trial for offenses committed before the amendment’s effective date without violating the constitutional prohibition against state ‘ex post facto’ laws.” (Carmell, supra, 529 U.S. at p. 516, italics in original.) The opinion characterized the statute as a “‘law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.’” (Id. at p. 522, quoting Calder v. Bull (1798) 3 Dallas 386, 390, italics in original.) Since the statute “changed the quantum of evidence necessary to sustain a conviction” so that “petitioner could be (and was) convicted on the victim’s testimony alone, without any corroborating evidence, ” the high court held that the amendment violated the ex post facto clause. (Carmell, supra, at pp. 530, 552.) Carmell neither held nor intimated that a state corroboration requirement is part of the quantum of evidence necessary to convict.
Here, the court instructed the jury with CALCRIM No. 220 on the prosecution’s burden of proof beyond a reasonable doubt. Absent evidence to the contrary, the jury is presumed to have followed the charge to the jury. (Mendoza, supra, 42 Cal.4th at p. 699.) No evidence to the contrary is in the record. The court gave no instruction authorizing the jury to convict on the basis of “slight” supporting evidence connecting him to the crime.
Second, we address Ballesteros’s corroborating-evidence challenge. He is correct that corroborating evidence must “‘connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth’” (People v. Lewis (2001) 26 Cal.4th 334, 370 (Lewis), quoting People v. Fauber (1992) 2 Cal.4th 792, 834), but he is mistaken in his belief that section 1111 requires the court to instruct that corroborating evidence must connect the defendant with the commission of the crime and satisfy the jury that the accomplice is telling the truth. The statute requires nothing more than that accomplice testimony “be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.” (§ 1111.) Since other evidence tending to connect the defendant with the crime also corroborates the accomplice’s testimony, the jury needs no additional instruction to infer that the accomplice is telling the truth.
6. CALCRIM No.370
Ballesteros argues that CALCRIM No. 370 prejudiced him due to the absence of an admonition to the jury not to apply the instruction to the gang-benefit allegation. The Attorney General argues the contrary.
The court instructed the jury with CALCRIM No. 370 on motive and the charged crimes as follows:
“The People are not required to prove the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.” (Italics added.)
The court instructed the jury with CALCRIM No. 736 on the special-circumstance gang allegation in relevant part as follows:
“The defendants are charged with the special circumstance of committing murder while an active participant in a criminal street gang. [¶] To prove that this special circumstance is true, the People must prove that: [¶] One, the defendant intentionally killed Carlos Gonzalez. [¶] Two, at the time of the killing the defendant was an active participant in a criminal street gang. Three, the defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity. And, four, the murder was carried out to further the activities of the criminal street gang.” (Italics added.)
The court instructed the jury with CALCRIM No. 1401 on the gang-benefit allegation in relevant part as follows:
“If you find a defendant guilty of the crime charged in Count One, you must then decide whether the People have proved the additional allegation … [¶] … that: [¶] 1. The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; [¶] and [¶] 2. The defendant intended to assist, further, or promote criminal conduct by gang members.” (Italics added.)
The crux of Ballesteros’s argument is that “CALCRIM No. 370 conflicts with CALCRIM Nos. 1401 and 736, because motive is an element of actively participating in a criminal street gang, furthering the activities of that gang, or committing a felony for the benefit of that gang.” With commendable candor, he acknowledges that we have decided the issue adversely to him in People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes)but even so invites us to reconsider Fuentes on the ground that “gang statutes define the intent or motive as the same – to further gang activities or to benefit the gang.” We decline to do so.
As CALCRIM No. 370 applies only to the gang-participation charge, so CALCRIM No. 736 applies only to the special-circumstance gang allegation and CALCRIM No. 1401 applies only to the gang-benefit allegation. The law is settled that we must look to the entire charge to the jury, rather than to merely one part, to determine if error occurred. (Sanders, supra, 11 Cal.4th at p. 535.)
In Fuentes, we held that “[a]n intent to further criminal gang activity is no more a ‘motive’ in legal terms than is any other specific intent. We do not call a premeditated murderer’s intent to kill a ‘motive, ’ though his action is motivated by a desire to cause the victim’s death.” (Fuentes, supra, 171 Cal.App.4th at p. 1139.) Here, as in Fuentes, the instructions required the prosecution to prove the defendant intended to further gang activity and not to show the motivation of “his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it.” (Id. at pp. 1139-1140.) Absent evidence to the contrary, the jury is presumed to have followed the charge to the jury. (Mendoza, supra, 42 Cal.4th at p. 699.) Our review of the entire charge to the jury persuades us there was no danger that the absence of a limiting instruction could have misled a reasonable juror. (See Sanders, supra, 11 Cal.4th at p. 535.)
7. Sua Sponte Lesser Included Offense Instruction
Ballesteros argues that the omission of sua sponte instruction on second degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included offenses prejudiced him. The Attorney General argues the contrary.
The crux of Ballesteros’s argument is that, even though the prosecution relied on “a felony murder (robbery/carjacking) theory, ” substantial evidence of “an alternate theory” – not of “a carjacking attempt” but of “an assault against the victim for personal reasons” – is in the record. He contends that “evidence of first felony degree murder [sic] was weak” and that “lesser offenses were far more appropriate.” The Attorney General, on the other hand, claims that “all of the evidence pointed to an attempted carjacking.”
Consistent with the Attorney General’s argument, the evidence overwhelmingly shows a first degree murder in the attempted commission of a carjacking. Clark testified that Orona told her “to take Carlos to the back of the alley to jack his truck.” Elizabeth testified that she saw Orona holding a gun, heard him telling Clark “he wanted to take the truck, ” and heard Clark telling Orona she was going to call Gonzalez and “lure him down there.” Matthew testified that he heard Orona saying he and Ballesteros “were gonna jack that fool for his truck” and Clark saying she “was going to be the bait.” Alex Huerta testified that Orona was the first person he heard say anything about a robbery and that Clark fingered “‘that dude in the truck’” as the person they were going to rob.
With commendable candor, Ballesteros concedes that Clark, Elizabeth, Matthew, and Huerta testified in support of the prosecution theory “that the attack was an attempted carjacking, ” but he nonetheless argues, “There was ample reason to doubt all four of those witnesses.” He points to Elizabeth’s testimony that Clark was not a truthful person and to Clark’s testimony that she heard evil voices telling her what to do and cites People v. Gurule (2002) 28 Cal.4th 557, which observes that “the mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness’s ability to perceive, recall or describe the events in question.” (Id. at pp. 591-592.)
Additionally, Ballesteros emphasizes Clark’s testimony that Elizabeth supplied methamphetamine to her three or four times a week and forced her into prostitution and Elizabeth’s testimony that people gathered in her home to smoke methamphetamine. He cites People v. Wheeler (1992) 4 Cal.4th 284, which observes that misconduct involving moral turpitude “may suggest a willingness to lie.” (Id. at p. 295.)
Ballesteros also emphasizes the instruction identifying Clark and Huerta as accomplices as a matter of law and cites People v. Belton (1979) 23 Cal.3d 516, which observes that an accomplice’s testimony is “suspect, untrustworthy and unreliable.” (Id. at p. 526.) He focuses, too, on Matthew’s testimony that he had three felony convictions and lied to an investigator about hearing nothing on the night of the shooting, and he cites People v. Santos (1994) 30 Cal.App.4th 169, which observes that a witness’s credibility is “severely undermined” by multiple felony convictions. (Id. at p. 180.)
Ballesteros argues other parts of the record as well, but we need not address each and every one, since his alternative theory – that “[Clark], who was angry and upset with [Gonzalez], lured him to the end of the road to confront and have it out with him while [Orona and Ballesteros] backed her up, and that [Gonzalez] was accidentally killed in the confrontation” – is conjecture. “‘Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense.’” (People v. Sakarias (2000) 22 Cal.4th 596, 620, quoting People v. Wilson (1992) 3 Cal.4th 926, 942.)
Our duty on a challenge to the absence of a sua sponte instruction “on an assertedly lesser included offense” is to apply “the independent or de novo standard of review.” (People v. Cole (2004) 33 Cal.4th 1158, 1218.) In light of the rule that “‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, ” a court’s duty to so instruct arises only if there is substantial evidence that the accused committed not the greater offense but only the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman), italics in original.) “If we were to adopt [Ballesteros’s] argument, lesser included offense instructions would be warranted in every criminal prosecution as the jury is always entitled to believe all or part of the prosecution’s evidence.” (People v. Acevedo (1985) 166 Cal.App.3d 196, 201, italics added.)
Ballesteros’s argument is essentially a request that we second-guess the credibility of the prosecution witnesses whose testimony led to his conviction of first degree murder in the attempted commission of a carjacking. That we cannot do. Even if the court had instructed sua sponte on second degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included offenses, a guilty verdict of a lesser homicide was not reasonably probable. (Breverman, supra, 19 Cal.4th at p. 178, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
8. Sua Sponte Accomplice Instruction
Ballesteros argues that the omission of sua sponte accomplice instruction as to a specific witness prejudiced him. The Attorney General argues the contrary.
Huerta testified that, shortly before the shooting, Orona said he wanted to rob somebody; Elizabeth asked Clark if she knew anybody; Clark replied, “Some guy in a truck”; Clark said she wanted to use his cell phone to call her boyfriend; Elizabeth asked to use his cell phone; and he let her. Gonzalez’s home phone showed a 5:00 a.m. call from Huerta’s cell phone. At 5:12 a.m., patrol officers received a call about the shooting.
On that record, Ballesteros argues that substantial evidence showed Huerta was “an accomplice to robbery/carjacking as a matter of law” or “at least an accomplice as a matter of fact.” With commendable candor, the Attorney General characterizes the issue as “a close question” and acknowledges that Huerta “assisted” by letting Elizabeth use his cell phone “before or at the time” he “knew of the intention/plan to carjack someone” but argues that no accomplice instruction was necessary.
The law is straightforward. An accomplice’s liability “depends on whether he [or she] promotes, encourages, or assists the perpetrator and shares the perpetrator’s criminal purpose.” (People v. Sully (1991) 53 Cal.3d 1195, 1227 (Sully), italics in original.) A person who “merely gives assistance with knowledge of the perpetrator’s criminal purpose” is not an accomplice. (Ibid.) “Whether a person is an accomplice within the meaning of section 1111 presents a factual question for the jury ‘unless the evidence permits only a single inference.’” (People v. Williams (1997) 16 Cal.4th 635, 679 (Williams), quoting Sully, supra, 53 Cal.3d at p. 1227.) “Thus, a court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness’s criminal culpability are ‘clear and undisputed.’” (Williams, supra, at p. 679, quoting People v. Rodriguez (1986) 42 Cal.3d 730, 759.) “When there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices.” (Frye, supra, 18 Cal.4th at pp. 965-966, disapproved on another ground by Doolin, supra, 45 Cal.4th at p. 421, fn. 12.)
On the law and the record, we agree with the Attorney General that the issue is “a close question” and agree with Ballesteros that the court breached a duty to instruct sua sponte on Huerta as an accomplice. The only remaining question, then, is whether the omission was prejudicial. A “failure to instruct on accomplice liability under section 1111 is harmless if there is ‘sufficient corroborating evidence in the record.’” (Avila, supra, 38 Cal.4th at p. 562, quoting Lewis, supra, 26 Cal.4th at p. 370.) The testimony of both a detective and Gonzalez’s mother corroborated Huerta’s testimony that Clark used his cell phone to call Gonzalez. Corroborating evidence is sufficient even if slight and entitled to little consideration standing alone. (Sanders, supra, 11 Cal.4th at p. 535.) All that the law requires is that the evidence tend to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury the accomplice is telling the truth. (Ibid.) That is the state of the record here. Sufficient corroboration of Huerta’s testimony is in the record. The omission of the accomplice instruction was harmless.
9. Cumulative Prejudice
Ballesteros argues that reversal of the judgment is imperative since prejudicial error arose from the cumulative impact of individual errors. The Attorney General argues the contrary. Our reversal of the judgment as to the count 2 gang-participation charge cures the error of law of the insufficiency of the evidence. (Ante, part 1.) The only other error was the omission of sua sponte accomplice instruction as to Huerta, an error that was harmless. Ballesteros’s cumulative error argument is meritless. (People v. Heard (2003) 31 Cal.4th 946, 982.)
10. Criminal Street Gang Enhancement
Ballesteros argues, the Attorney General agrees, and we concur that the imposition of a 10-year term on the gang-benefit enhancement is not statutorily authorized due to the imposition of a term of life without the possibility of parole on the special circumstance murder. (People v. Fiu (2008) 165 Cal.App.4th 360, 390, citing People v. Lopez (2005) 34 Cal.4th 1002, 1004; § 186.22, subd. (b)(1)(C).)
11. Parole Revocation Fine
Ballesteros argues, the Attorney General agrees, and we concur that the imposition of a $10,000 parole revocation fine is not statutorily authorized due to the imposition of a term of life without the possibility of parole on the special circumstance murder. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186; § 1202.45; cf. People v. Le (2006) 136 Cal.App.4th 925, 932-934.)
12. Presentence Custody Credits
Ballesteros argues, the Attorney General agrees, and we concur that the court awarded him two days fewer than the number of days of presentence custody credits to which he is statutorily entitled. (People v. Bravo (1990) 219 Cal.App.3d 729, 731-735, citing People v. Smith (1989) 211 Cal.App.3d 523, 527; § 4019.
DISPOSITION
For insufficiency of the evidence, the judgment is reversed as to the count 2 gang-participation charge (§ 186.22, subd. (a)). For lack of statutory authorization, the 10-year term on the count 1 gang-benefit enhancement (§ 186.22, subd. (b)(1)) and the $10,000 parole revocation fine (§ 1202.45) are both stricken from the judgment. The judgment is modified to change the award of presentence custody-credits (§ 4019) from 825 days to 827 days. The matter is remanded with directions to the superior court to so amend the abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation. Ballesteros has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) In all other respects, the judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.