Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA328655, William Sterling, Judge.
Law Offices of Allen G. Weinberg and Allen G. Weinberg for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendant and appellant Carlos Calderon guilty of the first degree murder of Emilio Perez, in violation of Penal Code section 187, subdivision (a). The jury found true the firearm allegations, including that defendant personally and intentionally fired the gun that caused the victim’s death (§ 12022.53, subds. (b)-(d)), and that the murder was committed to benefit a criminal street gang (§ 186.22, subd. (b)). Defendant was also convicted of the attempted murder of Mario Rendon (§§ 664, 187, subd. (a)) with the additional findings that the attempted murder was willful, deliberate, and premeditated (§ 664, subd. (a)), that defendant personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (d)), and did so to benefit a criminal street gang (§ 186.22, subd. (b)). The trial court imposed a sentence of 25 years to life in state prison for the first degree murder, consecutive to a term of 25 years to life for the personal firearm use enhancement. For the attempted murder, defendant received a life term under section 664, subdivision (a), plus 20 years for the firearm enhancement.
All further statutory references are to the Penal Code unless noted otherwise.
In his timely appeal, defendant contends (1) his federal due process rights under Brady v. Maryland (1963) 373 U.S. 83 (Brady) were violated by the prosecution’s failure to disclose material evidence; (2) the trial court erroneously, prejudicially, and in violation of due process instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (2008-2009) CALCRIM No. 306 that the defense had provided late discovery; (3) there was constitutionally insufficient evidence to support the findings that the crimes were committed to benefit a criminal street gang; and (4) the trial court violated defendant’s due process rights by denying his petition to release juror identification information and his request to contact an individual juror pursuant to Code of Civil Procedure section 237.
STATEMENT OF FACTS
In a outburst of gang violence, defendant, a member of the Street Saints gang, shot at rival gang member Mario Rendon of Primera Flats, but missed and killed Emilio Perez, a young man who went to Trinity Park to play basketball.
Officer Paul Miller testified as a gang expert. He was a member of the gang enforcement detail assigned to monitor the Street Saints, Primera Flats, and four other gangs. He had received training in gang culture and additional training in gang graffiti and had investigated hundreds of gang crimes and interviewed hundreds of gang members. He was personally familiar with the Street Saints gang, which had approximately 40 documented members. It claimed a specific territory, which it marked with gang graffiti, in which its members felt free to commit their crimes because they had placed the residents in fear of testifying against them. The gang was responsible for committing a variety of crimes, ranging from vandalism to narcotics sales to robberies, shootings, and murder. On March 22, 2007, Officer Miller recorded information from defendant on a field identification (FI) card, in which defendant admitted membership in the Street Saints gang and its 21st Street clique. Defendant said his gang moniker was “Drowsy.” A photograph taken at that time showed defendant’s face and the officer testified that he was “a little thinner” than he was at the time of trial.
Officer Miller also testified as to predicate criminal acts by members of the Street Saints. Iman Johnny Buckley was convicted of assault with a deadly weapon that occurred in August 2005. David Zepeda was convicted of a shooting offense. Both were members of the Street Saints.
The expert was familiar with the Primera Flats gang. It has approximately 150 documented members in the Westside faction of the gang. Primera Flats and the Street Saints are rival gangs. Members of those opposing gangs will typically “hit up” or challenge rival gang members. It would be rare—and an act of disrespect—for a Street Saint to venture into Primera Flats territory because the gang member would be putting himself at risk. Officer Miller knew Mario Rendon as an active and self-admitted member of Primera Flats. He had stopped Rendon for possession of alcohol and drugs, and for traffic violations.
Trinity Park is located near the center of Primera Flats territory. Members of that gang commonly meet and “hang out” there. They also conduct narcotics sales, possess weapons, and commit acts of vandalism. The park is “gang infested.” The gang members hide their guns in the sand in the playground where the neighborhood children play. Neighborhood children typically play basketball in that park.
In street gang culture, a common rule proscribes gang members from assisting authorities in the investigation of any gang crime, even one committed by rivals. To violate that basic rule is to become a “rat,” which makes the person subject to violent or fatal retribution. Members of one’s own gang would beat, or possibly kill, a gang member who assisted law enforcement or testified against another gang member. Gang members will review the record of trial proceedings to identify “rats.”
Graffitti in Primara Flats territory and on the border area shared by the Street Saints showed that Primera Flats and the Street Saints were rivals engaged in “an ongoing war.” Other graffiti in the Primera Flats territory signified that the Street Saints were accused of being “rats.”
On August 5, 2007, 17-year-old Emilio Perez, his older brother Oberl, and his cousin went to Trinity Park in Los Angeles to play basketball as they often did. They were not gang members. They took a break and Emilio went to the drinking fountain. Suddenly, there were gunshots in the park. Oberl saw Emilio clutching his stomach. He had received a fatal gunshot wound to his abdomen and chest.
Rendon was 17 years old at the time of trial. He joined the Primera Flats gang when he was 14 years old. His gang moniker is Dusty. In August 2007, he lived near Trinity Park. On August 5 at approximately 7:50 p.m., he was in the park, sitting on a bicycle and “talking to a girl.” Rendon testified that he heard approximately five gunshots and ran away. He saw that “a kid” had been hit by a gunshot. Rendon testified that he did not see the shooter, nor did he get a good view of the getaway vehicle. However, he admitted giving descriptions of the shooter and getaway vehicle to the investigating officers. He described the shooter as being “a heavyset male Hispanic,” nearly six feet tall, 20 to 21 years old with a dark complexion, wearing a black hat, and striped shirt. At trial, however, Rendon testified that the shooter was someone else.
Rendon admitted choosing the shooter’s photograph from a six-pack photographic lineup in August 2007, but claimed at trial he was “spooked” when making the identification. He also admitted telling the officers that a photograph of a white van with red and grey stripes “look[ed] like the same car that [sic] shot at [him].” At the preliminary hearing, Rendon testified that defendant “looks like” the shooter. But claimed he did so because he saw that person at the park and mistakenly assumed he was the shooter.
When Detective Thompson interviewed Rendon a month after the shooting, Rendon said he saw a white van with a red and gray stripe along its side pull up to the park. A male Hispanic with a shaved head jumped out of the van, approached him, said, “Fuck Flats,” and began firing his gun. Rendon did not know the shooter, who got back into the van, which drove northbound on Trinity Street, a street adjacent to Trinity Park. Rendon chose defendant’s photograph out of a six-pack photographic lineup as being the shooter. Rendon identified the still photograph of the van as being depicting the getaway vehicle. He had seen the van parked near 21st Street and Trinity Street, close to the location where the detective found it two days after the shooting. Defendant was living on 21st Street, a few houses away from where the van was parked. Rendon also told the detective that Primera Flats member Jairo Valente was in the park at the time of the shooting.
The prosecution gang expert testified that the phrase, “Fuck Flats,” when directly preceding a shooting and stated by a member of the Street Saints in Primera Flats territory during a period of warfare between those gangs,would signify a gang challenge—that the shooter was identifying himself as a gang rival.
The recanting witnesses’ prior statements to the officers were admitted as prior inconsistent statements.
Valente testified that he was at Trinity Park on the evening of the shooting. He was 15 years old. He denied being associated with Primera Flats and having the moniker, “Little Scrappy.” When interviewed after the incident, he told the officers that he had been “hanging out with another Primera Flats gang member” known as “Stalker.” He recanted that statement at trial and denied making others concerning his description of the getaway vehicle and of the shooter. With regard to his written statements identifying the van, he testified that the officers told him what to write. He also recanted his identification of defendant from a photographic lineup.
When Detective Thompson interviewed Valente, the witness said he was at the park with other Primera Flats members, when he saw a van pull up. A male Hispanic got out and tried to shoot a person Valente knew as Dusty. Valente admitted being associated with Primera Flats and having the moniker “Little Scrappy.” Valente described the van as being white with a gray and red stripe. He also identified it as being the one in the photograph taken by the detective.
Officer Cesar Chavez responded to the shooting scene at approximately 7:53 p.m. Bullet casings were found at the scene. Officer Chavez spoke to a young man named Frank Duran, who told Officer Chavez that he saw a male Hispanic enter a white Chevrolet Astro van after the shooting. The van had a silver and white stripe. The male was approximately five feet, ten inches tall, “about 200 pounds, wearing a white shirt.” The officer relayed the vehicle description to another officer over the police radio.
Duran testified that he was playing football in the street near the park at the time of the shooting. He heard approximately five gunshots from the direction of the park. Duran denied telling a police officer anything about a description of the getaway car and the person who got into it after the shooting. Detective Thompson testified that when Duran was interviewed after the incident, the witness verified that his initial report to the police was accurate—he saw a male Hispanic with a shaved head at the time of the shooting, who got into a white van with red stripes and drove away.
Detective Thompson testified that Primera Flats and the Street Saints were gangs operating in the vicinity of the shooting. Based on the description of the getaway vehicle (a white van with red and grey striping), the detective went to California Lithographs, a business on South San Pedro Street, within a quarter of a mile of the shooting scene. A vehicle travelling from Trinity Park northbound on Trinity Street would pass the business in less than a minute if it made the right turn on 23rd Street. California Lithographs had video surveillance cameras that faced the street. The detective verified the video time stamp and obtained the video recording for the approximate time of the shooting. That videotape, time-stamped 7:50 p.m., showed a white GMC Safari van with markings like those described by witnesses.
The Astro and the Safari have the same body style.
Two days after the shooting, Detective Thompson and his partner drove through surrounding areas claimed by Primera Flats’ rivals. On Trinity Street, north of 21st Street, they found a van matching the one on the videotape. Comparing the videotape from California Lithograph to the van, the detective noted additional similarities. Not only was the striped graphic the same, but the van had the same crack on the left rear taillight depicted in the videotape. Defendant was living on 21st Street, a few houses away from where the van was parked.
During a search of defendant’s residence a month after the murder, police recovered a box of nine-millimeter Luger bullets bearing the F.C. brand name, the same as the bullet casings found at the shooting scene. The box was found on top of a shed in the back yard area.
Based on a hypothetical statement of facts analogous to that of the prosecution case, Officer Miller opined that the shooting would have been committed for the benefit of the Street Saints because the shooting was preceded by a derogatory statement against the rival gang that asserted control over the park. A shooting in a rival’s territory enhanced the reputation of the Street Saints as a violent gang and instilled fear of retribution in the community. Witnesses would fear reporting crimes or testifying against gang members. Additionally, the shooter would enhance his own reputation within the gang by demonstrating his willingness to kill for the gang.
Defense
Juana Caprio, Valente’s mother, testified that she went to the police station after her son had been taken there to be interviewed. She told the person at the station’s front desk that her son had a learning disability and difficulties with speaking and learning. He was in special education class at school. The police did not let her talk to her son or enter the interview room.
Detective Thompson testified that he was not informed that Valente’s mother wanted to be present during the interview. The detective had received permission from Valente’s father to conduct the interview.
Defendant’s uncle, Jose Ramon Zepeda, testified that he lived at the same address as defendant. Zepeda lived in the back house; defendant lived in the duplex in front. When the police searched the properties in September 2007, Zepeda had weapons inside his house and ammunition in a storage shed outside. The box of nine-millimeter bullets taken by the police was Zepeda’s. However, he did not have a firearm for those bullets. Zepeda produced a receipt for the ammunition, showing he purchased it in November 1998. He planned to take the box of nine-millimeter ammunition to his brother in Mexico. Zepeda’s son also testified. He had seen the box of nine-millimeter ammunition in the storage shed for many years prior to the shooting.
Defendant’s father, Martin Calderon, Sr., testified that every Sunday he and his sons visit the gravesite of his wife, who died in 2003. They would visit for two to three hours and return home to cook a meal. On the Sunday evening of the shooting incident, the Calderon family held a party. A female guest and her son needed a ride home, so he drove her in his van. It was parked on Trinity Street and he drove her through the intersection of 23rd Street and San Pedro Street (past California Lithographs). It was approximately 6:00 or 6:30 p.m. He “heard shootings.” When he drove back home, he saw patrol cars.
Maria Zepeda, daughter of Jose Ramon Zepeda, testified that on August 5, 2007, a Sunday, she and her sisters went to the cemetery to take flowers for her mother. Maria returned home at approximately 3:00 p.m. An hour later, there was a barbecue at the house. Defendant was present. The party lasted until 8:00 or 9:00 p.m. Defendant was in the backyard at times during the party. Maria’s sister Norma recalled the cemetery visit and the barbecue. At one point during the barbecue, Norma heard defendant’s voice.
Investigator Richard Santiago testified that, following a lead from defense counsel, on July 2, 2008, he went to an alley off of Trinity Street near the park and found a white Chevrolet Astro van with red and silver strips. Department of Motor Vehicles (DMV) records showed the van’s owner purchased the vehicle in August 2004 and lived close by on East 24th Street. The van matched the description of the getaway car as set forth in the witness reports. On July 8, while looking for that van, the investigator came upon a GMC van with red and silver stripes parked nearby on Trinity Street between 23rd and 24th Streets. DMV records showed that vehicle was registered to a person who lived close to Trinity Park at the time of the shooting. It too matched the witness descriptions. The investigator did not attempt to contact the registered owners of either vehicle to find out where the vans were at the time of the shooting or whether the owners had gang connections.
The trial began on June 25, 2008.
Dr. Robert Shomer testified as an expert in eyewitness identification. He testified that a body of research indicates that eyewitness identification of strangers is highly unreliable. Generally speaking, the better a witness’s view and the longer a person witnesses an event, the more accurate his memory will be. Memories fade as time passes. It is more difficult to identify a person when the witness is experiencing a stressful situation. A witness’s confidence in his identification has no bearing on whether his identification was accurate. More specifically, witnesses tend not to understand or follow police admonitions regarding objectivity prior to participating in lineups. Showing the witness only one photograph of a vehicle for identification purposes is inherently suggestive. Using an outdated photograph of a suspect in a photographic lineup tends to increase the likelihood of misidentification, especially if the suspect has lost weight since the time the photograph was taken.
Rebuttal
Detective Thompson testified that he searched for a van matching the witness descriptions in territories claimed by rivals of the Primera Flats gang, not in territories claimed by Primera Flats, because the shooter’s statement before the incident indicated he was hostile to Primera Flats. Twenty-third Street between Trinity Street and San Pedro is not territory claimed by the Street Saints. In contrast, 21st Street, where he found the striped van, is within Street Saints territory, and specifically that of the 21st Street clique.
During the search of defendant’s residence, the officers recovered a baseball cap with Street Saints graffiti written on the bill. A shoe box was marked with the moniker, “Torro” and “21,” indicative of affiliation with the 21st Street clique.
DISCUSSION
Brady Error
Defendant contends the prosecution’s failure to disclose favorable, material discovery—a written report by Officer Chavez relating a description of the shooter by witness Duran—amounted to Brady error. As we explain, the claim fails because defendant does not demonstrate the report was material in the sense that its untimely production “‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ [Citation.]” (Strickler v. Greene (1999) 527 U.S. 263, 290 (Strickler).)
Due process requires the prosecution to disclose exculpatory material evidence to the accused. (Brady, supra, 373 U.S. at p. 87; People v. Jenkins (2000) 22 Cal.4th 900, 954.) Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57; People v. Jenkins, supra, at pp. 952, 954.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings.” (People v. Jenkins, supra, at p. 954.) “A prosecutor’s duty under Brady to disclose material exculpatory evidence extends to evidence the prosecutor—or the prosecution team—knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. [Citation.]... The scope of the prosecutorial duty to disclose encompasses exculpatory evidence possessed by investigative agencies to which the prosecutor has reasonable access. (People v. Robinson (1995) 31 Cal.App.4th 494, 499.)” (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314-1315.) On the other hand, “‘[a]lthough the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant’s investigation for him. [Citation.] If the material evidence is in a defendant’s possession or is available to a defendant through the exercise of due diligence, then... the defendant has all that is necessary to ensure a fair trial....’ [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1134, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant’s Brady claim surfaced after the verdicts had been rendered. As part of its new trial motion, the defense argued the prosecution failed to produce an FI card that Officer Chavez prepared, memorializing Duran’s statements on the night of the shooting. At the posttrial Brady hearing, it was established that the FI card was contained in the prosecution’s investigative materials, referred to as the “murder book.” Due to an oversight, that single-page document had not been copied and provided to the defense by the prosecutor. Detective Thompson testified that the FI card contained a description of the shooter, with his age being in the 30’s and his weight being 250 pounds. However, when the detective interviewed Duran after the incident, the witness was unable to identify defendant from a photographic lineup. Duran explained that the description he had given to Officer Chavez “came from his uncle.”
At the hearing, Detective Thompson testified that the FI card was shown to defense counsel during or just after Officer Chavez testified. Defense counsel represented that he did not recall any such disclosure. The trial court did not make a finding on that point.
At trial, Duran denied giving the investigating officers any description of the shooter or the getaway car. He would admit only that he was playing football in the street near the park at the time of the shooting and heard approximately five gunshots from the direction of the park. Officer Chavez, however, testified Duran stated that he saw a male Hispanic enter a white Chevrolet Astro van with a silver and red stripe. According to Duran, the male was approximately five feet, ten inches tall, “about 200 pounds, wearing a white shirt.” Additionally, Detective Thompson testified that when Duran was interviewed at the station after the incident, the witness verified that his initial report to the police was accurate.
The prosecution’s two eyewitnesses as to the shooting itself were Rendon and Valente. Rendon had described the shooter as being “a heavyset male Hispanic,” approximately five feet, eleven inches tall, 20 to 21 years old, with a dark complexion. That was largely consistent with the description Detective Thompson used in conducting his investigation. There was no evidence as to a description of defendant’s age or build by Valente. The prosecution’s case for identification was based on those witnesses’ identifications of defendant in court at the preliminary hearing and from photographic lineups, and corroborated by the evidence showing the van owned by defendant’s father and parked outside defendant’s residence was the getaway vehicle. To the extent the defense presented alibi evidence, it was weak and inconclusive.
The discovery materials provided to the defense contained a summary of witness statements, including information from Duran that the shooter was “25 to 30” years old and his weight was 185 to 190 pounds. In fact, defendant was 17 years old. There is no definitive evidence of defendant’s weight at the time of his arrest. Detective Thompson testified that information provided at that time showed defendant’s weight as 215 pounds, but it was likely based on defendant’s representation. At the time of defendant’s prior arrest, one year before the Trinity Park shooting, defendant’s weight was listed as being 230 pounds.
The trial court found no Brady error, concluding the defense had failed to establish the FI card’s materiality. Among other things, the convictions were not attributable to Duran’s description, which apparently was based on an observation by his uncle. Further, the defense had information that the witness had described the person who drove away in the van as being 25 to 30 years old, which was not significantly different from the information in the FI card.
Those findings are supported by the record, and our independent review leads to the same conclusion. It is highly doubtful the timely production of the FI card would have affected the verdict. At no time did Duran state that he had seen the shooting itself. Indeed, since Duran was playing football in the street, there is no reason to think he had a good view of the face of the person he saw getting into the van. Any description Duran might have given of that person’s age would therefore be of little probative value. Moreover, the prosecution primarily relied on Duran’s description of the getaway vehicle, not his description of the person who got into it after the shooting. The prosecution case for identity hinged on the eyewitness identifications by Rendon and Valente, and neither would have been substantially undercut by the information from Duran in the FI card. Duran’s representation of defendant’s height and weight was consistent with that given by Rendon as to the shooter’s height and build, and there was no such evidence from Valente. Nor was Officer Chavez’s testimony concerning Duran’s estimate of defendant’s weight significantly different from that on the FI card—“about 200” pounds as compared to 250 pounds. Impeachment based on the 50-pound difference would have had negligible effect, given that Duran’s description was necessarily approximate and was consistent with Rendon’s description of a heavyset shooter. Further, records that defendant weighed 230 pounds a year before the shooting and 215 at the time of the shooting would undercut the potential impeachment value of the information in the FI card.
Accordingly, there is no reasonable probability that timely disclosure would have led to a different result. (See People v. Jenkins, supra, 22 Cal.4th at p. 955.) The FI card did not disclose evidence such as could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. (Ibid., citing Strickler, supra, 527 U.S. at p. 290.) Defendant’s mere speculation as to materiality will not suffice under well established due process standards under the Brady line of cases. (E.g., Wood v. Bartholomew (1995) 516 U.S. 1, 5.)
CALCRIM No. 306
Defendant contends the trial court erroneously, prejudicially, and in violation of due process, instructed the jury pursuant to CALCRIM No. 306 that the defense had provided late discovery. That instruction, as given to the jury, provides: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. The attorney for the Defense failed to disclose: Receipt for ammunition, pictures of Astro Van and GMC Safari, and DMV printouts within the legal time period. In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. However, the fact that the defendant’s attorney failed to disclose evidence within the legal time period is not evidence that the defendant committed a crime.” As we explain, the trial court’s ruling was reasonable and supported by the record. Further, the pattern instruction at issue does not suffer from the potential constitutional infirmities identified in other versions of the instruction.
Section 1054.3 imposes the reciprocal discovery obligation that the “defendant and his or her attorney... disclose to the prosecuting attorney: [¶] (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial... [and] [¶] (b) Any real evidence which the defendant intends to offer in evidence at the trial.” Under section 1054.7, “[t]he disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred.” Section 1054.5, subdivision (b), sets out various means for enforcing these obligations and provides that the trial court “may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” A trial court’s ruling on matters regarding discovery is reviewed for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299.) There was no such abuse here.
On the afternoon of July10, 2008, in the second week of trial, the defense sought to present photographs of two white vans, similar to the one owned by defendant’s father. Trial counsel represented that both were parked near Trinity Park and DMV records showed them owned by persons in that neighborhood. The prosecution objected on the ground of unfair surprise. One photograph had been produced to the prosecution earlier that week; the other that day. Accordingly, the prosecutor did not have the opportunity to investigate whether the owners of the vans knew their vehicles’ whereabouts on the relevant date and time. Defense counsel asserted that he had acted in good faith: Within a week of July 10, trial counsel fortuitously stumbled upon the evidence when viewing an aerial photograph of the location near the park. He saw a white van and requested his investigator to find out whether it was still there. In the process of doing so, the investigator found that van and the other one.
The trial court ruled the evidence admissible, finding it relevant. However, it also found the defense had violated its discovery obligations by the last minute production and caused unfair surprise to the prosecution because it would not have time to conduct an adequate investigation. The trial court reasoned that any significant delay in the trial would cause hardship to the jurors, as the matter had already gone past the anticipated date of completion, and the trial court was in danger of losing jurors. Accordingly, rather than declare a mistrial, the trial court ruled that it would give a late discovery instruction to the jurors.
The trial court inquired of the jury and was informed that many jurors had important commitments that would render additional service a hardship.
The defense objected to the instruction, arguing that counsel disclosed the information as soon as he learned of it. The trial court, however, found a lack of good cause for the delay because a reasonable investigation could have discovered the information in a timely manner. Additionally, trial counsel’s admission that he had made no effort to contact the vans’ owners and had no intention of doing so, supported a finding that the last minute production would unfairly disadvantage the prosecution. In any event, even accepting as true the explanation that counsel’s discovery was fortuitous, the trial court found no good cause because the defense had reason to look for similar vans in that vicinity during the investigative phase of the case, but had made no such effort. The record supports those findings. The trial court’s finding of a lack of good cause is not inconsistent with acceptance of trial counsel’s representation. The salient fact is not whether counsel was telling the truth about how he came upon the evidence, but rather that no investigative efforts to find such evidence were made until trial had begun and the discovery deadline had long passed.
We see no basis for defendant’s appellate assertion that the trial court’s ruling was based on annoyance with trial counsel, rather than a good faith application of the relevant legal standards. To the contrary, our review of the record shows the trial court’s ruling was well-informed and even handed. There can be no serious dispute that the disclosure of ammunition receipts and the information concerning the two vans was in violation of the statutorily imposed reciprocal discovery deadline. Nor can it be disputed that the late discovery rendered it all but impossible for the prosecution to conduct an investigation into relevant matters such as the whereabouts of the vans at the relevant time.
We turn to defendant’s challenges to the instruction itself. While defendant correctly points out that appellate courts have criticized a different pattern instruction concerning late production of discovery (a prior version of CALJIC No. 2.28) (People v. Lawson (2005) 131 Cal.App.4th 1242, 1247-1249 (Lawson); People v. Saucedo (2004) 121 Cal.App.4th 937, 942-943 (Saucedo); People v. Cabral (2004) 121 Cal.App.4th 748, 752; People v. Bell (2004) 118 Cal.App.4th 249, 256-257 (Bell)), those criticisms do not apply to CALCRIM No. 306 in the circumstances before us.
The decision in Bell is representative. (Bell, supra, 118 Cap.App.4th 249.) There, the appellate court gave four reasons why the trial court should not have given the instruction. The primary reason was the Bell court’s finding that there was nothing in the record to show that the defendant bore responsibility for the discovery failure, which was attributable solely to counsel and his investigator. As such, it was misleading to suggest that “the defendant” was responsible for the failed compliance. (Id. at pp. 254-255.) Bell also criticized CALJIC No. 2.28 because (1) the instruction allowed the jury to speculate that the prosecutor was actually harmed by the late discovery without any information regarding this purported disadvantage; (2) it implied that the jurors should “‘do something’” without clarifying how they should approach the late-discovered evidence and without any guidance on what remedy they should apply; and (3) it failed to caution the jury that untimely discovery, standing alone, was insufficient to support a guilty verdict. (Bell, supra, at pp. 254-256.)
In contrast, CALCRIM No. 306 is phrased so as not to blame the defendant for counsel’s omissions. Moreover, it admonishes the jury that “the fact that the defendant’s attorney failed to disclose evidence within the legal time period is not evidence that the defendant committed a crime.” (CALCRIM No. 306.) That same admonition resolves the Bell court’s concern that the instruction permitted the jury to rely on the discovery violation as the sole basis for reaching a guilty verdict. Additionally, as our Supreme Court recently explained, CALCRIM No. 306 contains language to limit the inferences a jury can draw from the discovery violation by directing the jury that it could consider such a violation in assessing the weight of the particular items of belated discovery. (See People v. Riggs (2008) 44 Cal.4th 248, 307 (Riggs).)
Defendant is mistaken in asserting that CALCRIM No. 306 invites the jury to speculate about facts never admitted into evidence. Indeed, the Riggs court made it clear that there is nothing improper in permitting a jury to draw a negative inference as to the probative force of late discovered evidence. “Were a jury to find a defendant had failed to disclose evidence to the prosecution in an attempt to hide the evidence until the last minute, the jury could reasonably infer from the fact that the defendant thereby violated his or her duty under the discovery statutes that even the defense did not have much confidence in the ability of its own evidence to withstand full adversarial testing. Whether or not the prosecution was actually impaired by the attempt to conceal the evidence would not change the circumstance that defendant tried to inhibit the prosecution’s efforts. In other words, while not constituting evidence of the defendant’s consciousness of his or her own guilt, the fact of a discovery violation might properly be viewed by the jury as evidence of the defendant’s consciousness of the lack of credibility of the evidence that has been presented on his or her behalf.” (Riggs, supra, 44 Cal.4th at p. 308, fn. omitted.) That is precisely the direction given by CALCRIM No. 306.
Far from showing anything improper, review of the parties’ closing arguments demonstrates that the pattern instruction allowed both sides to present their cases fairly and effectively. The prosecution did not mention the late discovery in his opening argument. The defense attacked the strength of the prosecution case by pointing out that two other vans matching the witness description were owned by persons living nearby the shooting location and also fashioned a “rush to judgment” theory by arguing that the recent defense discovery of the vans showed the prosecution had prematurely curtailed its investigation as soon as it found circumstantial evidence tying defendant to the distinctive van. In rebuttal, the prosecutor argued it was a dubious tactic to present the late discovered evidence as impugning the investigative efforts of law enforcement. In so doing, the prosecutor pointed to two reasons to discount the probative force of the evidence as to the other vans. First, as established on cross-examination of the defense investigator, the defense investigation made no effort to contact the vans’ owners and, second, as Detective Thompson testified, the police had a credible reason for not looking in the locations where the other vans were found—they were parked in Primera Flats territory.
When the prosecutor referred to the new evidence as a “stunt,” the defense objected, and the trial court instructed the jury that its “ultimate” obligation was “to consider... the convincing force of the evidence. You can consider the late discovery and give it whatever significance you believe it has, but your job... ultimately and always is to analyze the testimony and physical evidence, apply the law, and make your conclusions based on what you believe has either been proved or not proved.”
Thus, under the particular facts of this case, the trial court’s discretionary resort to CALCRIM No. 306 was particularly appropriate. Not only did it permit defendant to present belatedly discovered evidence that was relevant to the defense theory, but in doing so, it avoided the real danger of a mistrial that would arise if the trial were delayed to afford the prosecution the opportunity to investigate the new evidence, and took account of the likelihood of prejudice to defendant if the evidence were excluded.
Nor do we accept defendant’s argument that giving CALCRIM No. 306 amounted to constitutional error. As the Riggs court explained in rejecting an analogous argument: “The fact that defendant failed to comply with his obligations under the discovery statutes by presenting these surprise alibi witnesses near the end of the trial was relevant evidence the jury could consider in assessing the credibility of their testimony. The trial court was authorized by statute to ‘advise’ the jury of this fact (§ 1054.5, subd. (b)), and its instruction to that effect properly explained that it was for the jury to determine what, if any, weight and significance the discovery violation carried in resolving the credibility of the alibi testimony.” (Riggs, supra, 44 Cal.4th at p. 310.) As we have explained, the pattern instruction did not place blame on defendant for the discovery violation. Nor did it operate as a mandatory presumption of culpability because it did not require jurors to find any fact, much less an elemental fact. Nor did it direct a finding on defendant’s misidentification defense. (See Ibid.; Saucedo, supra, 121 Cal.App.4th at p. 941 [construing prior version of CALJIC No. 2.28].)
Finally, this type of instructional error is subject to harmless error analysis under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether there is a “reasonable probability that an outcome more beneficial to him would have been achieved in the absence of the instruction.” (See Riggs, supra, 44 Cal.4th at p. 311; Lawson, supra, 131 Cal.App.4th at p. 1249, fn. 7.) As our foregoing analysis makes plain, any such error in this case would have been harmless under that standard or the standard for constitutional error under Chapman v. California (1967) 386 U.S. 18, 24.
As in Riggs, “reliance on the instruction regarding the discovery violation was but a small part of the prosecution’s devastating arguments concerning the credibility of” defendant’s misidentification and alibi testimony. (Riggs, supra, 44 Cal.4th at p. 311.) Neither the ammunition receipt nor the evidence of the other vans significantly undercut the prosecution case. The significance of the ammunition was that it showed defendant had access to the same kind of bullets used in the shooting incident. From the defense perspective, the key point was that the ammunition was kept in the Zepeda property. That Jose Zepeda could prove he owned the ammunition had no significant bearing on that fact. Similarly, showing the existence of other vans matching the witness in the neighborhood did not go to the heart of the prosecution case. Not only did the defense fail to establish the whereabouts of those vans at the relevant time, but the jury had the California Lithograph videotape and the photographs to compare and determine whether the additional similarities, such as the cracked left taillight, established the vehicle’s identity as the one owned by defendant’s father. “In sum, there is no reasonable possibility or probability that the challenged instruction, even if erroneous, affected the outcome or fairness of defendant’s trial.” (Ibid.)
Gang Enhancement
Defendant contends the gang enhancements must be stricken because there was no substantial evidence to support the jury’s findings as to the “primary activities” element of section 186.22, subdivision (b). According to defendant, Officer Miller’s expert testimony was too vague, weak, and conclusory to establish that members of the Street Saints consistently and repeatedly committed crimes listed in the gang statute. As we explain, the prosecution presented solid, credible evidence from which the jury could reasonably infer the chief component of the Street Saint’s existence was the commission of enumerated crimes.
In assessing a claim of insufficiency of evidence, this court’s task is to “review the whole record in the light most favorable to the judgment... to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) Where substantial evidence supports the jury’s finding, and other circumstances support a contrary finding, the jury’s finding will not be reversed. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
“The substantial evidence standard of review applies to section 186.22 gang enhancements.” (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) The gang enhancement of section 186.22, subdivision (b) required the prosecution to prove that defendants committed the murder and attempted murders for the benefit of a criminal street gang. Section 186.22, subdivision (f) defines a “criminal street gang” for purposes of these provisions as “‘any ongoing organization, association, or group of three or more persons... having as one of its primary activities the commission of one or more [enumerated offenses], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.’ [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.... [¶] Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at pp. 323-324.) Also sufficient might be expert testimony that the gang was primarily engaged in certain offenses. (Ibid.)
“Past offenses, as well as the circumstances of the charged crime, have some tendency in reason to prove the group’s primary activities, and thus both may be considered by the jury on the issue of the group’s primary activities.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1465, citing People v. Sengpadychich, supra, 26 Cal.4th at pp. 320, 323.) On the other hand, as we have cautioned, “[c]onclusional testimony that gang members have previously engaged in the enumerated offenses, based on nonspecific hearsay and arrest information which does not specify exactly who, when, where and under what circumstances gang crimes were committed, does not constitute substantial evidence.” (In re Jose T. (1991) 230 Cal.App.3d 1455, 1462; see also People v. Perez (2004) 118 Cal.App.4th 151, 160 [expert testimony based on weak, insubstantial evidence will not suffice].)
Here, although the gang expert did not use the words “primary activities” in his testimony, he presented solid, reliable evidence from which a jury could reasonably find the commission of the enumerated criminal acts by members of the Street Saints was the gang’s principal activity, rather than merely an occasional or subsidiary aspect of gang membership. Contrary to defendant’s assertions, Officer Miller’s testimony did not reduce to conclusory and vague assertions concerning the nature and frequency of criminal activities by the Street Saints. In addition to the underlying shooting, which provided strong, direct evidence of gang motivated criminal activity by a Street Saints member, the prosecution presented two independent crimes by different Street Saints members—an assault with a deadly weapon in 2005 and a separate shooting offense. Officer Miller was personally involved in the investigation of the former case and was familiar with the details of the other. Both were gang related. Such evidence has been found sufficient to support a gang enhancement. (See People v. Duran, supra, 97 Cal.App.4th at p. 1465 [finding evidence of gang’s primary activities was corroborated by the predicate crimes evidence used to show a pattern of gang activity].)
Further, Officer Miller testified that he was personally familiar with the Street Saints gang. He knew that it had approximately 40 documented members and claimed a specific territory, which it marked with gang graffiti. From personal knowledge, he testified that the gang was responsible for committing a variety of crimes, ranging from vandalism to narcotics sales to robberies, shootings, and murder. There was no evidence that the gang engaged in legitimate activities or that its commission of crimes was subsidiary thereto. On the contrary, there was evidence that the Street Saints and Primera Flats were engaged in “an ongoing war” at the time of the shooting incident.
This is not a case like In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612, where insufficient evidence of the gang’s primary activities was found because the gang expert testified that the defendant’s gang had been involved in assaults, murders, and other crimes, but neither gave any specifics as to the circumstances of those crimes nor offered any foundation for his opinion. (See People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.) Here, Officer Miller had personal knowledge as to the commission of Street Saints crimes and there was evidence as to the circumstances of the two predicate felonies and the underlying offense.
Read in the light most favorable to the prosecution, the evidence of specific, enumerated crimes (including murder, attempted murder, and assault with a deadly weapon) committed by defendant and two other Street Saints from 2005 through 2007, along with testimony that the gang supported itself and funded its illegal activities by narcotics sales, robberies, and other crimes amounted to solid and reliable evidence that the Street Saints were a “criminal street gang” in that those criminal activities were not merely occasional, isolated acts that happened to be committed by gang members for personal reasons. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 323; People v. Gardeley (1996) 14 Cal.4th 605, 620.)
Release of Juror Identification Information
Defendant contends the trial court erroneously denied his petition to unseal juror identification information under Code of Civil Procedure section 237 and, in so doing, violated his substantive due process rights by ordering that counsel could not contact a juror who had expressed interest in speaking to counsel. As there was no showing of good cause for release of the information, the first aspect of the claim fails. We need not reach the constitutional basis for defendant’s second claim, as the order prohibiting contact with a willing juror was not authorized by section 237 and was inconsistent with section 206, which recognizes a juror’s “absolute right to discuss or not to discuss the deliberation or verdict with anyone.” (Code Civ. Proc., § 206, subd. (a).) As explained below, we reverse the order barring further contact with Juror No. 4.
“The statutes pertaining to the confidentiality of juror identifying information, and a juror’s right to refuse to discuss a case after verdict, are found in [Code of Civil Procedure] sections 206 and 237. Section 206 codifies the jurors’ right to refuse to discuss the case and prohibits unreasonable contacts with the jurors. Section 237 provides for the sealing of confidential juror information and sets forth the procedure for disclosure of that information by petition to the trial court.” (People v. Santos (2007) 147 Cal.App.4th 965, 976.) A trial court’s denial of a petition to disclose juror identification information pursuant to Code of Civil Procedure sections 206 and 237 is reviewed for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
To demonstrate good cause for the release of juror identification information pursuant to Code of Civil Procedure section 237, subdivision (b), a defendant must, among other things, file a petition that “sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred.” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552; accord, People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322-1323, fn. 8.) Furthermore, the misconduct alleged must be “‘of such a character as is likely to have influenced the verdict improperly.’” (People v. Jefflo, supra, at p. 1322.) A petition to disclose juror identification information must be supported by more than mere speculation and may not be used as a “‘fishing expedition[ ]’ by parties hoping to uncover information to invalidate the jury’s verdict.” (People v. Rhodes, supra, at p. 552.)
Code of Civil Procedure section 237, subdivision (b) provides in pertinent part that any person seeking access to juror records, must file a petition “supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information.”
Here, following the verdicts, the trial court informed the jurors they could choose whether to discuss the case and deliberations with anyone, but ordered its record of the jurors’ personal identification information, including names, addresses, and telephone numbers sealed until further court order. It further informed the jurors that they would receive notice and have the opportunity to object in the event of a future application to disclose that information. At a subsequent hearing, on November 13, 2008, the trial court stated that the parties had discussed “juror contact and scheduling,” and set a new trial and sentencing hearing for December 18. It ordered that in the meantime the parties were not to “contact any juror and not [to] make use of any juror info[rmation] without order from the court pursuant to Code of Civil Procedure section 237.”
“Upon the recording of a jury’s verdict in a criminal jury proceeding, the court’s record of personal juror identifying information of trial jurors, as defined in Section 194, consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section.” (Code Civ. Proc., § 237, subd. (a)(2).)
On December 18, the defense filed a petition for release of jurors’ personal identification information under Code of Civil Procedure section 237. According to that pleading, trial counsel had noted the jurors’ names and general residence location during the course of voir dire. After the trial concluded, counsel used that information to locate the residences of two jurors. Counsel left his contact information at those two residences. In response Juror No. 4 left a telephone message for counsel, providing a telephone number and indicating a willingness to speak to counsel “regarding the deliberation to inquire and ‘follow up’ on issues counsel previously discussed after trial.” As “good cause” for disclosure of that juror’s information, it was argued that Juror No. 4 had told defense counsel when they spoke outside the courtroom after the jurors were released, that he or she was one of the four initial “hold out” jurors. Apparently, Juror No. 4 related that his or her concerns as to defendant’s identity were resolved in deliberations by another juror’s statement that defendant’s skin tone might have lost some tanning in the months between the shooting and arrest. Counsel asserted that the juror may have felt intimidated by the presence of other jurors at the time. Following a “cooling off” period, counsel believed the juror might “shed light” on possible juror misconduct. The only basis for suspecting any such misconduct, however, was the juror’s statement about deliberations and indications during the trial that prolonged deliberations would cause the juror to miss a family vacation.
At the hearing, trial counsel made it clear the disclosure was sought only as to Juror No. 4. The trial court denied the petition, finding no prima facie showing of good cause to disclose the identifying information because nothing in defendant’s petition tended to show juror misconduct or otherwise provide support for a new trial motion. The court maintained its prior order, prohibiting the parties from contacting the jurors, including Juror No. 4.
Resolution of the first aspect of defendant’s claim is straightforward. There was no abuse of discretion in denying the petition to disclose juror identification information. As the trial court found, there was nothing in defendant’s petition to suggest juror misconduct. It is well established that a “jury verdict cannot be impeached by evidence of the jurors’ mental processes and reasoning....” (Bandana Trading Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, 1446.) To the extent defendant suggests that the declaration shows the jurors “were discouraged from asking questions, and were rushed into deciding on a verdict,” such arguments contravene the restrictions on verdict impeachment under Evidence Code section 1150. (Ibid.) Mere speculation that juror misconduct occurred does not meet the good cause requirement for release of identifying information. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.)
We turn to defendant’s argument that the court order proscribing him from contacting Juror No. 4 amounted to a violation of substantive due process. There is no need to reach the constitutional issue, as the order barring contact with a juror willing to speak with defense counsel is inconsistent with California statutory law. Code of Civil Procedure section 206, subdivision (a) required the trial court to inform the jurors that they had an absolute right to discuss the deliberations and verdict with anyone. Section 206 emphasizes the juror’s “absolute right” in that regard and proscribes parties from making “unreasonable contact with a juror... without the juror’s consent....” (Code Civ. Proc., § 206, subd. (d); see People v. Tuggles (2009) 179 Cal.App.4th 339, 380-381 [“Code of Civil Procedure section 206 codifies the prerogative of jurors to discuss the case after trial as well as their right not to talk with the parties”].) The Attorney General correctly observes, “[n]othing in Code of Civil Procedure sections 206 or 237 dilutes the trial court’s inherent power to shield jurors from unwanted contact by parties or their counsel.” (People v. Tuggles, supra, at p. 382, citing Townsel v. Superior Court (1999) 20 Cal.4th 1094, 1096, fn. omitted.) However, the record contains unchallenged evidence of juror consent and nothing to indicate an unreasonable juror contact. As such, the trial court’s restriction on contacting the willing juror violated the plain terms of Code of Civil Procedure section 206, subdivision (a), and cannot stand. We reverse that portion of the trial court’s order.
We follow “the well-established rule that we do not address constitutional questions unless necessary.” (Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 128-129, citing Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230.)
Having concluded that the order barring contact with Juror No. 4 was error, we turn to the issue of the proper remedy. Juror No. 4’s willingness to talk to defense counsel in no way suggests the existence of juror misconduct. Because defendant has presented no evidence of juror misconduct or any basis for challenging the verdict, we affirm the judgment. If it so chooses, the defense may contact Juror No. 4 relating to this case. Should the defense discover evidence which provides a legal basis for challenging the verdict, it may pursue whatever remedies are available to seek post-conviction relief, including a petition for habeas corpus. (See, e.g., In re Carpenter (1995) 9 Cal.4th 634, 646 [juror misconduct not demonstrated by trial record may be addressed by habeas corpus petition]; In re Hitchings (1993) 6 Cal.4th 97, 103.)
Cumulative Error
Defendant argues the cumulative effect of the errors. “We have found no errors that can be deemed cumulatively prejudicial.” (People v. Box (2000) 23 Cal.4th 1153, 1219.) As we have explained, the prosecution should have produced the FI card regarding statements by witness Duran, and the court erred in barring all contact with Juror No. 4. However, as that document was not material under Brady and defendant did not demonstrate any juror misconduct, the combined effect of these two errors was nonprejudicial.
DISPOSITION
That portion of the judgment prohibiting contact with Juror No. 4 is reversed. In all other respects, the judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.