Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County, Robert M. Martinez, Judge., Los Angeles County Super. Ct. No. KA071098.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Alonso Delgado.
Anthony Dain; Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant David Daniel Rodriguez.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Alonso Delgado and David Daniel Rodriguez appeal from the judgments entered following their convictions by a jury on one count of second degree murder with special findings by the jury concerning use of a firearm during the murder. Except for correction of a technical error in the abstract of judgment, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Delgado and Rodriguez were each charged by amended information with one count of murder. (Pen. Code, § 187, subd. (a).) The amended information specially alleged a principal had personally used and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1); the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)); and Rodriguez had served a prison term for a prior felony conviction (§ 667.5, subd. (b)) and had been convicted of two additional felonies within the meaning of section 1203, subdivision (e)(4). Delgado and Rodriguez pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code.
2. Summary of the Evidence Presented at Trial
a. The People’s evidence
On December 25, 2004 at approximately 8:00 p.m., an unidentified man knocked on Lucia Lopez’s apartment door and asked for her son, Frankie, by name. Frankie, who was standing behind Lucia when she opened the door, followed the man from the apartment and closed the door. Lucia again opened the door and saw Frankie walking down the hallway with the unidentified man and Delgado, who looked back and made eye contact with Lucia.
Because Frankie Lopez and his mother and sister, who were both witnesses at trial, share a surname, we refer to them by their first names, not out of disrespect but for convenience and clarity. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
Frankie’s sister, Erica, who went into the hallway a few seconds after Frankie left the apartment, saw Frankie with Delgado and Rodriguez -- both Pomona Sur Trece gang members -- standing on the porch at the end of the alley; the unidentified man was standing in the hallway. Suddenly, Frankie began running toward Erica. Erica heard a gun shot; a neighbor heard a voice say “Get him, dog. Get him.” After a second shot was fired, Frankie fell to the ground; he died from a gunshot wound to the head.
Approximately three weeks prior to Frankie’s shooting Rodriguez had fought in the parking lot of the Lopezes’ apartment building with Anthony Coronado, a member of the rival gang Azusa 13, because, according to Rodriguez, Coronado “wanted to come and talk shit to me, and disrespected me . . . .” Coronado had previously lived with the Lopez family for approximately two years and was a friend of Frankie’s. (Erica considered him “like a cousin.”) A week or two after the fight Rodriguez was shot in the back while he was at a park across the street from the Lopezes’ apartment building. Erica testified she was outside her apartment just before Rodriguez got shot. She saw Coronado, who was next door, suddenly jump up, cover his face with a bandana and run across the street to the park with a rifle. After she heard shots fired, Coronado ran back to her apartment, where he left the rifle. Although Rodriguez claimed he did not know who shot him, he admitted in a videotaped interview played for the jury he knew there would be retaliation for his fight with Coronado.
In a tape recorded interview also introduced at trial, Delgado admitted he had gone to Frankie’s door, but claimed he had walked back to the car and was opening the car door when the shooting occurred and did not know the other men intended to shoot Frankie. Delgado told detectives his “homies” wanted Delgado to come with them to talk to Frankie because “Frankie had everything to do with all this that happened. . . . He was the main person they had to kill for every single thing. . . . The fool that shot [Rodriguez] wasn’t even a concern.” Delgado explained his confederates’ perspective, “Because if we take [Frankie] out, we don’t got to worry about this fool coming over here no more doing that, cause’ [sic] Frankie can’t call them and tell them yea sur trece is right there in the park. . . . Frankie can’t do that no more. He can’t shoot at us, and run and hide in Frankie’s house until the police leave again, he can’t do that no more.” Delgado claimed his friends said they were not going to kill Frankie; but Delgado knew they were taking a gun and said to them, “You taking a gun for a reason.”
Initially Delgado had said he was waiting in the car when the shots occurred.
Delgado denied Rodriguez was present but would not provide the names of the people he claimed were.
Matthew Lopez, a friend of Frankie’s, testified Rodriguez had issued a gang challenge to Frankie in front of Frankie’s apartment on two or three occasions in the weeks preceding Frankie’s death.
Detective Greg Freeman, a gang expert, testified to the importance of respect in gang culture and the escalating cycle of disrespect and retaliation that occurs among rival gangs. Freeman testified he believed Frankie’s shooting was committed for the benefit of the Pomona Sur Trece gang as retaliation for Rodriguez’s shooting. To establish that Pomona Sur Trece was a “criminal street gang” within the meaning of section 186.22, Freeman also testified Alex Ponce, another Pomona Sur Trece gang member, was convicted for a murder committed in the summer of 2000 and Gerardo Ramirez was convicted for a robbery committed in April 2002.
b. The defense’s evidence
Neither Rodriguez nor Delgado testified in his own defense. Rodriguez presented testimony from Pomona Police Department Detective David Sevesind regarding various measurements and photographs taken at the crime scene. Delgado did not present any evidence in his defense.
3. The Jury’s Verdict and Sentencing
The jury found Delgado and Rodriguez not guilty of first degree murder, but guilty of second degree murder. It also found true the special allegation a principal had used and intentionally discharged a firearm and the murder was committed for the benefit of a criminal street gang. Delgado and Rodriguez were each sentenced to an aggregate state prison term of 40 years to life: 15 years to life for second degree murder and an additional consecutive term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1). The abstract of judgment, however, reflects imposition of the 25-year enhancement under section 12022.53, subdivisions (b) and (e)(1).
The allegation Rodriguez had served a prison term for a prior felony conviction (§ 667.5, subd. (b)) had been dismissed by the People.
CONTENTIONS
Delgado contends his confession was involuntary; it was error to instruct the jury he could be convicted of murder as the natural and probable consequence of aiding and abetting a misdemeanor assault; there was insufficient evidence murder was the natural and probable consequence of the assault; there was insufficient evidence the murder was committed for the benefit of a street gang; the trial court erred in allowing testimony by a gang expert; and the prosecutor improperly exercised three peremptory challenges on the basis of race. Rodriguez contends the sentence enhancement for personal use of a firearm must be reversed because he was convicted on a combined aiding-and-abetting and natural-and-probable-consequences theory of liability. He also notes the abstract of judgment incorrectly states the firearm-use enhancement was imposed pursuant to section 12022.53, subdivisions (b) and (e)(1), rather than subdivisions (d) and (e)(1). Rodriguez and Delgado each purport to join in the other’s arguments to the extent they are beneficial.
DISCUSSION
1. Delgado’s Admissions Were Not Induced By Threats or Promises of Leniency Regarding His Brother
a. The police interrogations of Delgado
Following his arrest, Delgado was questioned on three occasions by Pomona Police Department Detective Danny Kono concerning Frankie’s murder. During the first interrogation on January 2, 2005, Delgado denied he was involved in the shooting. After the interrogation Delgado made a telephone call from the jail to his mentally impaired brother, Oscar, and directed him to “go put that shit away so they don’t find it.” The call was overheard by a cadet working at the jail, who informed detectives.
Before each interrogation Delgado was advised of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) Delgado stated he understood those rights and waived them before any questioning occurred.
Two days later, on January 4, 2005, Detective Kono again interrogated Delgado and informed Delgado he knew about the telephone call to Oscar: “By trying to cover up your tracks and do all this stuff you put Oscar into this. . . . Oscar seems like an okay guy. He’s got some problems, you obviously love your brother and care about him very much. But now because you’re not as smart as I thought you were you involved Oscar. And you know as well as I do if Oscar goes to jail behind this Oscar’s not gonna do real well in jail just because of his problems. So if you will tell us the truth that’s gonna take Oscar out of the picture.” Notwithstanding his pleas not to involve Oscar, Delgado continued to deny he was present at the shooting. Delgado did say he had heard the shooting was in retaliation for Coronado’s shooting of Rodriquez.
Three weeks later, on January 24, 2005, Kono interrogated Delgado for the third time. After Kono indicated someone had provided information implicating Delgado but would not reveal the source of his information or any of the details, Delgado admitted he had gone to Frankie’s door, but claimed he was walking back to the car when the shooting occurred. He also explained the motive for shooting Frankie.
b. Delgado’s admissions at the third interrogation were not induced by comments made at the second interrogation
A defendant’s confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. (People v. Williams (1997) 16 Cal.4th 635, 659 (Williams).) In deciding the question of voluntariness both the United States and California Supreme Courts require courts to apply a “totality of circumstances” test. (Withrow v. Williams (1993) 507 U.S. 680, 693-694 [113 S.Ct. 1745, 1754, 123 L.Ed.2d 407]; People v. Massie (1998) 19 Cal.4th 550, 576; Williams, supra, 16 Cal4th at p. 660.) “Relevant are ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’ (Withrow v. Williams, supra, 507 U.S. at pp. 693-694.)” (Williams, supra, 16 Cal.4th at p. 660.)
“On appeal, we review independently the trial court’s determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including ‘“the characteristics of the accused and the details of the interrogation” [citation],’ are subject to review under the deferential substantial evidence standard.” (Williams, supra, 16 Cal.4th at pp. 659-660.)
Evidence a defendant’s admissions were preceded by express or implied promises of leniency is significant in evaluating whether the statements were voluntary. (People v. Neal (2003) 31 Cal.4th 63, 84 [“Promises and threats traditionally have been recognized as corrosive of voluntariness”]; People v. Boyette (2002) 29 Cal.4th 381, 412 [“A promise to an accused that he will enjoy leniency should he confess obviously implicates the voluntariness of any resulting confession”].) Threats or promises involving relatives may be the basis for finding a confession involuntary. (See People v. Soto (1984) 157 Cal.App.3d 694, 708 [“It has been held that where ‘a confession is coerced by a threat to arrest a near relative, it is not admissible’”].) The presence of such a threat or promise, however, is not necessarily determinative: “[U]nder current law, no single factor is dispositive in determining voluntariness . . . .” (Williams, supra, 16 Cal.4th at p. 661; see People v. Massie, supra, 19 Cal.4th at p. 576 [“In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne’”].)
Delgado contends his admissions were involuntary because they were obtained only after Kono threatened to involve Oscar if Delgado did not admit his participation in the shooting. Delgado argues there is nothing in the record to suggest the threat to Oscar was no longer at issue or had been forgotten during the third interrogation, which occurred 20 days after Kono had raised the possibility of incarcerating Oscar. However, the record demonstrates any improper threat or promise of leniency toward Oscar was not the “motivating cause of the confession” Delgado made during the third interrogation. (People v. Johnson (1969) 70 Cal.2d 469, 478; see People v. Cahill (1994) 22 Cal.App.4th 296, 316 [“Where the dominant focus of an interrogation is an implied promise of leniency and a confession ensues, absent adduction of countervailing evidence, e.g., a substantial time lapse between the implied promise and the incriminating statements, the confession must be attributed to that implied promise”].) In addition to the significant lapse of time between the two interrogations, Delgado’s admissions were not preceded by any renewed threats to Oscar or even a mention of Oscar’s name. Examining the totality of the circumstances, it is apparent that the filing of a criminal complaint charging Delgado with murder and Kono’s apparent success in convincing Delgado that someone had provided information about Delgado’s involvement in the crime, not threats directed to his brother, persuaded Delgado to admit his participation in the crime. The following exchange took place:
The People’s contention Delgado has forfeited this argument by failing to object at trial is without merit. The court held a suppression hearing during trial after Delgado moved to suppress his admissions on the ground the third interrogation was tainted by the threats to incarcerate Oscar made by Kono in the second interrogation.
The trial court noted there were two references to Oscar in the third interrogation, but they were in the context that Kono wanted Delgado to “‘[t]ell the truth. I don’t want you to say something just because of Oscar.’” The record before us, which does not contain the entire transcript from the third interrogation, includes only one of those references, which occurred after Delgado’s initial admission he went to Frankie’s door. Even if the other reference occurred before Delgado’s admissions, it is qualitatively different than the threats to Oscar made during the second interrogation.
“Delgado: No I mean just tell me one thing Kono, are they saying I did it or are they saying I was there[?]
“Kono: They’re saying you’re involved and, and I’m not going to give you particulars other than they’re saying, I will say that they’re not saying you pulled the trigger. I will say that.
“Delgado: I mean see, what exactly what the fuck they tell you[?]
“Kono: Dude I just want you. . .
“Delgado: You want me to tell you [inaudible].
“Kono: I just want you to tell me the truth Alonzo. I just want you to tell me the truth. As much of the truth as you can tell me, and if you can’t tell me who pulled the actual trigger to help yourself, then that’s cool. We’ll make that work. We’ll make . . . .
“Delgado: You want me to fucking tell you I was there?
“Kono: If, not unless that’s the truth.
“Delgado: I was there.”
The balance of the interrogation demonstrates Delgado’s deliberate effort to tailor the information he provided to what he believed Kono had heard and to mitigate his involvement in the crime while nevertheless admitting the information he believed was likely irrefutable. Indeed, after his confession Delgado and Kono joked about Delgado’s skill mining for information during the interrogation process as well as his ability to feign concern about Oscar, further demonstrating Delgado’s confession was not the product of coercive police activity.
“Kono: Well one thing you convince[d] me of is you’re not dumb. I’ll agree with you there. I appreciate the compliment, you’ve got game too man. Like a chess game, huh?
2. The Jury Was Properly Instructed Murder Can Be the Natural and Probable Consequence of Assault
A defendant aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging or facilitating the commission of a crime, by act or advice aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) A defendant who aids and abets the commission of a crime is guilty of that crime regardless of the degree of his or her involvement. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529 [“‘Liability attaches to anyone “concerned [in the commission of a crime],” however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal’”].) Moreover, an aider and abettor “is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)
Delgado contends it was error to instruct the jury with CALJIC No. 3.02, the pattern jury instruction for the natural and probable consequences doctrine, because the intended crime (that is, the “target” offense) was misdemeanor assault. Delgado argues predicating a murder conviction, which ordinarily requires a finding of malice, on a “minor” misdemeanor target offense is not supported by the Penal Code or legislative intent.
As given to the jury, CALJIC No. 3.02 provides, “One who aids and abets in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [¶] In order to find the defendant guilty of the crime of murder, as charged in Count 1, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of . . . assault in violation of Penal Code Section 240 was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a co-principal in that crime committed the crime of murder of the first or second degree; and [¶] 4. The crime of murder of the first or second degree was a natural and probable consequence of the commission of crime of assault in violation of Penal Code Section 240. [¶] In determining whether a consequence is ‘natural and probable,’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.”
Although it may be correct in some instances a misdemeanor target offense is too petty to plausibly result in murder as the natural and probable consequence, it is the appropriate role of the jury to make this determination in light of all of the circumstances surrounding the incident. (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) A categorical rule that murder can never be the natural and probable consequence of a misdemeanor, such as an assault, would inappropriately minimize the gravity and nature of misdemeanor assault, especially in today’s gang-plagued environment. The appropriate distinction is not between misdemeanors and felonies, but between trivial activities and non-trivial activities: “[I]t is rarely, if ever, true that ‘an aider and abettor can “become liable for the commission of a very serious crime” committed by the aider and abettor’s confederate [where] “the target offense contemplated by his aiding and abetting [was] trivial.”’ (People v. Prettyman, supra, 14 Cal.4th at p. 269.) ‘Murder, for instance, is not the natural and probable consequence of trivial activities. To trigger application of the “natural and probable consequences” doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed.’ (Ibid.)” (People v. Montes (1999) 74 Cal.App.4th 1050, 1055.)
For example, in People v. Montes, supra, 74 Cal.App.4th 1050, criticizing People v. Butts (1965) 236 Cal.App.2d 817,relied upon by Delgado, the defendant and his gang confronted a member of a rival gang in a restaurant parking lot. A member of the defendant’s gang shot and killed the rival gang member. The victim and the defendant had had an altercation two months earlier at the same restaurant. In affirming the conviction for attempted murder the court held the attempted murder could be considered a natural and probable consequence of an assault against a rival gang member whether or not the person who committed the assault knew one of his own gang members had a weapon. The court stated, “When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them. . . . [¶] [T]he circumstances in this case were such that it was reasonably foreseeable the initial confrontation would quickly escalate to gunfire.” (Montes, at p. 1056; see People v. Gonzales (2001) 87 Cal.App.4th 1, 7, 10 [sufficient evidence from which jury could conclude reasonably foreseeable fatal shooting would be natural and probable consequence of fight between defendant gang members and two individuals who may have been gang members; one defendant “intended to fight the two because he felt they had disrespected the pregnant Molina by throwing gang signs”];cf. People v. Prettyman, supra, 14 Cal.4th at p. 262 [in cases in which defendant aided and abetted assault with a deadly weapon or with potentially deadly force and victim was murdered, “the courts generally had no difficulty in upholding a murder conviction, reasoning that the jury could reasonably conclude that the killing of the victim . . . was a ‘natural and probable consequence’ of the assault”]; People v. Godinez (1992) 2 Cal.App.4th 492, 499-500 [defendant convicted of voluntary manslaughter on aiding and abetting theory of liability; “the record as a whole provided substantial evidence form which a reasonable jury could have found the homicide was a natural consequence of the gang attack which Godinez aided and encouraged”].)
“Although the ‘natural and probable consequences’ doctrine has been ‘subjected to substantial criticism’ [citations], it is an ‘established rule’ of American jurisprudence [citation].” (People v. Prettyman, supra, 14 Cal.4th at p. 260.) The requirement the jury must find the offense actually committed was a reasonably foreseeable outcome of the target offense is an appropriate safeguard that truly trivial activities, including misdemeanors in certain cases, will not result in the imposition of disproportionate liability, while still ensuring aiders and abettors will be “‘responsible for the criminal harms they have naturally, probably and foreseeably put in motion.’” (Ibid.)
3. The Evidence Was Sufficient To Support the Jury’s Finding Murder Was the Natural and Probable Consequence of the Assault Upon Frankie
In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime or the special allegation present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the jury’s finding].’” (Bolin, at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
“Substantial evidence” in this context means “evidence which 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; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt”’”].) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
Substantial evidence supports the jury’s finding it was reasonably foreseeable Frankie’s murder would result from the intended assault upon him. There was evidence of an on-going feud between members of the Pomona Sur Trece and Azusa 13 gangs. Delgado knew Frankie, although not an Azusa 13 gang member, was viewed as partially responsible for Azusa 13’s ability to target Pomona Sur Trece gang members for retaliation because he lived across the street from a site at which they congregated and could report on their activities. Although not necessary to uphold his conviction, Delgado admitted he knew his fellow gang members were taking a gun to confront Frankie and suspected it would likely be used. (People v. Godinez, supra, 2 Cal.App.4th at p. 501, fn. 5 [“although evidence indicating whether the defendant did or did not know a weapon was present provides grist for argument to the jury on the issue of foreseeability of a homicide, it is not a necessary prerequisite”]; People v. Gonzales, supra, 87 Cal.App.4th at p. 10 [“prosecutor was not required to present evidence [unarmed codefendants] knew [armed codefendant] intended to use a gun”].) Given the history of escalating violence between the two gangs, it was reasonably foreseeable Frankie’s murder would result from the confrontation with him.
Delgado does not challenge the sufficiency of the evidence that he aided and abetted the assault on Frankie. Rather, he argues there was no evidence he had any intent to kill and similarly no evidence Rodriguez had an intent to kill Frankie, as opposed to merely assaulting him. According to Delgado, the evidence establishes the shooting was an unexpected independent act by Rodriguez.
During his second interrogation Delgado told detectives Coronado had also shot at him in Frankie’s presence although it is unclear when this occurred.
4. The Evidence Was Sufficient To Support the Jury’s Finding the Murder Was Committed for the Benefit of a Criminal Street Gang
Pursuant to section 12022.53, subdivision (e), “an aider and abettor who is found guilty of murder is subject to the [section 12022.53, subdivision (d),] 25 years to life enhancement even though he or she did not personally and intentionally discharge a firearm causing death if the murder was committed for the benefit of a criminal street gang and ‘any principal’ in the offense personally and intentionally discharged a firearm causing death. In all other killings subject to section 12022.53, subdivision (d) -- that is, killings not for the benefit of a criminal street gang -- a principal, including an aider and abettor, is only subject to the 25-year enhancement if he or she personally and intentionally discharged a firearm causing death.” (People v. Hernandez (2005) 134 Cal.App.4th 474, 480 [fn. omitted].) Here, the jury found true the allegations that “a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to Frankie Lopez, within the meaning of Penal Code section 12022.53[, subdivisions] (d) and (e)(1)” and that the offense of murder “was committed for the benefit of a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members within the meaning of Penal Code section 186.22[, subdivision] (b)(1).”
Section 12022.53, subdivision (e)(1), provides, “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”
Delgado contends the evidence was not sufficient to trigger section 12022.53, subdivision (e), because, notwithstanding Detective Freeman’s expert testimony, the People failed to prove Pomona Sur Trece was a “criminal street gang” within the meaning of section 186.22, that is, a gang that has engaged in a “pattern of criminal gang activity” by committing two or more “predicate offenses” within the specified time period (the last offense must have been committed within three years of a prior offense) and “on separate occasions, or by two or more persons.” (§ 186.22, subd. (e); People v. Gardeley (1996) 14 Cal.4th 605, 617.) Specifically, Delgado contends the People failed to prove Gerardo Ramirez, who was convicted of committing a robbery in April 2002, one of the predicate offenses identified in the People’s case, was a Pomona Sur Trece gang member and, assuming the charged offense is properly considered a predicate offense (see Gardley, at p. 625), the only remaining predicate offense, the murder committed by Ponce in the summer of 2000, occurred more than three years before the murder of Frankie and, therefore, is outside the time period specified by section 186.22, subdivision (e).
The record contains substantial evidence to support the jury’s conclusion two or more predicate offenses were committed within the specified time period. While it is correct the prosecutor failed to ask Freeman whether Ramirez was a Pomona Sur Trece gang member, “we must presume in support of the judgment the existence of any facts the trier of fact might reasonably infer from the evidence.” (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1767.) Before asking about Ramirez’s conviction for robbery, the prosecutor asked Freeman about Ponce’s murder conviction and elicited testimony that Ponce was a Pomona Sur Trece gang member. After inquiring about Ramirez’s conviction, the prosecutor asked Freeman if Delgado was a Pomona Sur Trece gang member, which Freeman confirmed. It was reasonable for the jury to infer from the context of this questioning that Ramirez was also a Pomona Sur Trece gang member. Absent gang membership, the evidence of Ramirez’s conviction would have been irrelevant. Inasmuch as Ramirez’s conviction was properly introduced as a predicate offense, Delgado’s argument the Ponce conviction was more than three years before the last predicate offense fails. Moreover, there was ample evidence in the record -- in addition to Freeman’s testimony, which may alone have been sufficient -- that Frankie’s shooting was gang motivated and thus the charged offense was also a predicate offense. (see People v. Sengpadychith (2001) 26 Cal.4th 316, 323 [“evidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang”].)
Delgado contends Freeman should not have been allowed to testify as a gang expert because his testimony, characterized as essentially that of a “behavioral scientist,” did not satisfy the test for admissibility of new scientific evidence set forth in People v. Kelly (1976) 17 Cal.3d 24. Delgado has forfeited this argument because he did not object on this ground in the trial court. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1146-1147, fn. 11 [“failure to object at trial to the admission of evidence on grounds that it is irrelevant or inadmissible under Kelly forfeits such a claim for appeal”].)
5. The Enhancement for Personal Use of a Firearm Was Proper Even Though Rodriguez Was Not Found To Have Personally Used a Gun
Like Delgado, Rodriguez challenges imposition of section 12022.53, subdivision (d)’s 25-year-to-life firearm-use enhancement under section 12022.53, subdivision (e), on the theory he was a principal to Frankie’s murder and another principal, not Rodriguez personally, intentionally discharged the firearm causing Frankie’s death during the commission of an offense for the benefit of a criminal street gang. (See People v. Hernandez, supra,134 Cal.App.4th at p. 480.) Asserting what he describes as an issue of first impression, Rodriguez contends, although section 31 expressly defines “principal” to include a person who aids and abets the commission of a crime, section 12022.53, subdivision (e)’s use of the term “principal” does not include individuals who did not personally use a firearm and are only liable for one of the offenses enumerated in section 12022.53, subdivision (a), under the natural and probable consequences doctrine. Because he did not directly aid and abet Frankie’s murder (that is, murder was not the target crime), Rodriguez maintains he should not be considered a principal for purposes of the firearm enhancement under section 12022.53, subdivision (e)(1).
Section 31 provides, “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”
Rodriguez’s argument to the contrary notwithstanding, it has been understood for centuries an aider and abettor is liable not only for the crime he or she intended to aid and abet but also for any crime that is the natural and probable consequence of the target crime. (See Sayre, Criminal Responsibility For The Acts Of Another (1930) 43 Harv. L.Rev. 689, 696-699.) Thus, whether the term aid and abet is considered to have an “approved usage” or to have acquired over the centuries a “peculiar and appropriate meaning,” when the Legislature declared aiders and abettors to be “principals,” it included within that term aiders and abettors liable for the commission of crimes that are the natural and probable consequences of the crimes they intended to aid and abet. (§ 7, subd. 16 [“Words and phrases [in the Penal Code] must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning”].) If the Legislature had intended to give the term “principal” a different meaning in section 12022.53, subdivision (e)(1), it would have said so. (See People v. Acosta (2002) 29 Cal.4th 105, 114 [“As a matter of statutory construction, ‘a word or phrase repeated in a statute should be given the same meaning throughout.’”].)
As Rodriguez observes, the abstract of judgment erroneously states the 25-years-to-life firearm-use enhancement was imposed pursuant to section 12022.53, subdivisions (b) and (e)(1). It is ordered corrected to reflect that the enhancement was imposed pursuant to section 12022.53, subdivisions (d) and (e)(1).
6. The Prosecutor Did Not Improperly Exercise Peremptory Challenges
a. Applicable law
Exercising peremptory challenges to remove prospective jurors on the sole ground of group bias violates both the California and the United States Constitutions. (People v. Ward (2005) 36 Cal.4th 186, 200, citing People v. Wheeler (1978) 22 Cal.3d 258, 276-277 and Batson v. Kentucky (1986) 476 U.S. 79, 89 [106 S.Ct. 1712, 90 L.Ed.2d 69].) The procedure and substantive standard trial courts properly use when considering motions challenging peremptory strikes is now well-established: “‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008-1009.) “It is not until the third step that the persuasiveness of the justification becomes relevant . . . .” (Purkett v. Elem (1995) 514 U.S. 765, 768 [115 S.Ct. 1769, 131 L.Ed.2d 834].) “[A]lthough a party may exercise a peremptory challenge for any permissible reason or no reason at all [citations], ‘implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination’ [citation].” (People v. Huggins (2006) 38 Cal.4th 175, 227.)
Here, we are only concerned with the third step of the analysis because the trial court found a prima facie case of discrimination, which is unchallenged on appeal, and the prosecutor proffered race-neutral reasons for the three allegedly discriminatory peremptory strikes. (People v. Silva (2001) 25 Cal.4th 345, 384; People v. Jordan (2006) 146 Cal.App.4th 232, 245.) “In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, ‘the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .’ [Citation.]”’ [Citation.] ‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ [Citation.] Inquiry by the trial court is not even required. [Citation.] ‘All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.’ [Citation.] A reason that makes no sense is nonetheless ‘sincere and legitimate’ as long as it does not deny equal protection.” (People v. Guerra (2006) 37 Cal.4th 1067, 1100-1101; see People v. Reynoso (2003) 31 Cal.4th 903, 924 [“proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons”].) “[W]e are mindful that ‘“[i]f the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.”’ [Citations.] In a case in which deference is due, ‘[t]he trial court’s ruling on this issue is reviewed for substantial evidence.’ [Citation.]” (People v. Huggins, supra, 38 Cal.4th at p. 227.)
When counsel for Rodriguez made his Batson/Wheeler motion, the prosecutor had exercised three of eight peremptory challenges to exclude the only African-American prospective jurors on the panel. In considering this issue, the trial court treated the motion as if it had been made by both Rodriguez and Delgado; and we do as well.
Delgado contends the United States Supreme Court’s decision in Miller-El v. Dretke (2005) 545 U.S. 231 [125 S.Ct. 2317, 162 L.Ed.2d 196] (Miller-El) requires us to perform for the first time on appeal a comparative juror analysis to determine whether the prosecutor’s stated reasons for dismissal were pretextual. (Miller-El, at p. 241 [“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step”].) Although the California Supreme Court has yet to decide whether Miller-El compels an appellate court to do so, it has nevertheless undertaken a comparative juror analysis in several cases since Miller-El, as will we in this case. (See, e.g., People v. Avila (2006) 38 Cal.4th 491, 547 [conducting side-by-side comparison of challenged and seated jurors]; People v. Jurado (2006) 38 Cal.4th 72, 105 [noting defendant failed to identify “any seated juror who gave responses similar” to the challenged juror]; People v. Schmeck (2005) 37 Cal.4th 240, 270 [noting defendant failed to identify “comment by a seated juror that was similar” to the challenged juror’s comment]; People v. Ward, supra, 36 Cal.4th at p. 203 [conducting side-by-side comparison of two seated jurors and two challenged jurors].) The Supreme Court, however, has explained, “The fundamental inquiry remains the same after Miller-El as before: is there substantial evidence to support the trial court’s ruling that the prosecutor’s reasons for excusing prospective jurors were based on proper grounds, and not because of the prospective jurors’ membership in a protected group? If so, then defendant is not entitled to relief. In undertaking this inquiry, we note that the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects. . . . Accordingly, we confine our inquiry to whether the prosecutor here honestly found pertinent and legitimate dissimilarities between members of the group he challenged and the group he accepted.” (People v. Huggins, supra, 38 Cal.4th at p. 233.)
The question whether an appellate court must perform a comparative juror analysis for the first time on appeal is currently pending before the Supreme Court in People v. Lenix, review granted May 27, 2005, S148029.
b. The trial court properly concluded Delgado failed to prove purposeful racial discrimination
i. The retired Los Angeles Police Department records employee
The prosecutor explained he excused a retired Los Angeles Police Department records employee (Juror No. 4) because “she indicated that her husband was ill with cancer and was under treatment for chemotherapy. . . . My concern was that at that stage that’s a very serious situation. She may not be able to concentrate.” The prosecutor also expressed some concern about Juror No. 4’s attitude toward law enforcement because, notwithstanding her 20 years working with the Los Angeles Police Department, she did not socialize with police officers and appeared to have distanced herself from their views.
Delgado argues Juror No. 4 merely indicated her husband’s illness “may be a problem” and the prosecutor failed to inquire about the extent of her husband’s illness, what the “problem” might be and whether she would have any problems concentrating as a result of her husband’s illness. Delgado asserts Juror No. 17, in contrast, was extremely emotional about being in court because her daughter had been killed by a drunk driver, which she considered to be murder, and “when I hear murder, I’m sorry, it’s very hard.” However, when defense counsel sought to have Juror No. 17 removed for cause, the prosecutor objected, arguing she was “just . . . emotional” and the incident that made her so emotional “doesn’t have anything to do with this case factually.” Delgado asserts the prosecutor was clearly not concerned with this obviously emotional, non-African-American’s ability to concentrate although this was the basis for his purported concern about the non-emotional, African-American who simply had stated as a fact her husband’s illness. Delgado also contends the prosecutor’s concern about Juror No. 4’s attitude toward law enforcement was based on a mischaracterization of her responses.
Although “Miller-El states that failure to engage in any meaningful voir dire examination on a subject a party asserts it is concerned about is evidence suggesting that the stated concern is pretextual,” a trial court’s ruling peremptory challenges were not exercised in a discriminatory fashion will nevertheless be upheld if supported by substantial evidence. (People v. Huggins, supra, 38 Cal.4th at pp. 234-235.) Substantial evidence supports the trial court’s ruling the prosecutor’s reason for excusing Juror No. 4 was proper. After defense counsel raised a comparison between Juror No. 4 and the obviously emotional juror, the prosecutor stated, “I just want to reject the analogy between Juror No. [4] and the juror who’s currently seated as number 17. Juror [No. 4] may very well have a spouse who’s dying and I think it’s a completely different situation.”
We agree concern about difficulties in concentrating that may be experienced by a juror with a seriously ill husband undergoing chemotherapy may be legitimately distinguished from issues relating to an emotional juror who considered her daughter to have been murdered. Moreover, defense counsel inquired whether it would be too hard for Juror No. 17 to sit through the proceedings. Although the record reflects only an inaudible response, it is a reasonable inference Juror No. 17 stated it would not be difficult for her to serve because there were no additional follow-up questions and the court refused to excuse Juror No. 17 for cause. The prosecutor was not required to inquire of Juror No. 4 whether her husband’s illness, grave on its face, would hinder her concentration. (Cf. People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1018, fn. 14 [“The prosecutor, using permissible criteria, may have made up her mind about a prospective juror without venturing into a particular matter . . . . One inference that may be drawn from any such decision to ask few or no questions is that the prosecutor had already properly determined that a challenge was warranted based on the questionnaire or existing voir dire answers, and that further questioning was unnecessary. Indeed, lawyers must use their voir dire time judiciously, and should not be penalized for doing so”].)
Of course, Juror No. 17’s views about the drunk driver suggest a race neutral pro-prosecution perspective that may also have influenced the decision whether to challenge her.
The prosecutor may also have been concerned that further probing on this issue would be viewed by other members of the panel as insensitive and unnecessarily intrusive.
Another dissimilarity between Juror Nos. 4 and 17 was their response to the question whether they had close relations with police officers. Juror No. 17 stated she and her husband were friends with a couple who were recently retired police captains and that they would be vacationing with them. In contrast, Juror No. 4, who had spent 20 years working for the police department, initially stated, “I don’t have -- any people I socialize with were civilian employees.” It was only under further questioning that she said she had socialized “at times” with police officers on the job. Undertaking a comparative juror analysis as Delgado urges, this is an additional, legitimate difference between Juror Nos. 4 and 17 that supports the prosecution’s decision to retain Juror No. 17 but not Juror No. 4.
ii. The student
The prosecutor explained his challenge to a 20-year-old student majoring in psychology (Juror No. 5): “I don’t always exercise peremptories against college students but I generally do. Occasionally, if they appear to me to be in areas such as perhaps engineering or math majors or perhaps medical students, I might make an exception. . . . In addition, he is a psychology student which is associated [in] my mind I think with good reason with more liberal point of view, socially liberal point of view. I do make a practice of trying to identify people on the jury who I think has [sic] socially liberal points of view and excusing them if I can, and those are the reasons why I excused him.”
Delgado contends the reason proffered for excluding Juror No. 5 is not supported by the record because a psychology major is not necessarily more liberal than a mathematics major and the prosecutor never questioned Juror No. 5 to ascertain whether he was in fact politically or socially liberal or conservative. Defense counsel’s view psychology students are not necessarily liberal does not undermine the credibility of the prosecutor’s belief they that they may be. “A prosecutor’s explanations need not rise to the level of justifying a challenge for cause. (Batson, supra, 476 U.S. at pp. 97-98; Wheeler, supra, 22 Cal.3d at pp. 274-276.) ‘Rather, adequate justification . . . may be no more than a “hunch” about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias and not simply as “a mask for race prejudice” [citation].’ [Citation.] It is important to remember the legitimate bases for peremptory challenges, which include various factors that suggest the possibility of prodefense or proprosecution bias. ‘For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority.’ [Citation.] As Wheeler elaborated, such factors may be less focused on the background or basic impression of a potential juror, but more commonly involve a ‘gut feeling’ or the seat-of-the-pants subjectivity of prosecutors and defense attorneys alike. ‘Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a juror’s objectivity on no more than the “sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another” [citation] -- upon entering the box the juror may have smiled at the defendant, for instance, or glared at him.’ (Wheeler, supra, 22 Cal.3d at p. 275.)” (People v. Jordan, supra, 146 Cal.App.4th at p. 255.)
The only other student on the panel prior to the Batson/Wheeler motion was a non-African-American pre-med student excluded with the first peremptory challenge exercised by defense counsel.
The prosecutor’s view of college students, particularly psychology majors, was neither contradicted by the record nor implausible. The prosecutor articulated a nuanced and believable distinction between certain types of students and exercised a peremptory challenge because Juror No. 5 fell into the category of those he deemed to be more liberal and therefore less pro-prosecution. (Cf. People v. Barber (1988) 200 Cal.App.3d 378, 394 [“[p]eremptory challenges are often exercised against teachers by prosecutors on the belief they are deemed to be rather liberal”].) Indeed, consistent with a view that people in education tend to be more liberal, one of the prosecutor’s peremptory challenges was used to exclude an educational researcher at a graduate university and another to exclude a woman who was a secretary at a university and whose husband was a student who worked part time at a college. There is substantial evidence that the prosecutor’s justification for excluding Juror No. 5 was sincere and legitimate.
iii. The retired United Parcel Service worker
The prosecutor excused a retired United Parcel Service worker because “his son is a private criminal defense attorney. That is someone who is a member of his family who makes a profession of defending people accused of crimes. And for that reason and that reason alone, I exercised a peremptory against him.”
Delgado contends the prosecutor’s reason was pretextual because this potential juror in fact said his son’s practice was “probably [criminal] defense” and counsel for Rodriguez, who was familiar with the son, knew he rarely practiced criminal law. Delgado again faults the prosecution for not asking follow-up questions to determine the extent of the potential juror’s son’s criminal defense practice and whether, despite the practice, the prospective juror could render a fair verdict.
Whether Rodriguez’s counsel knew more about the prospective juror’s son’s law practice is irrelevant to whether the prosecutor honestly believed this juror was not similarly situated for a legitimate reason. The mere fact this prospective juror believed his son practiced criminal defense gave the prosecutor ample reason to believe he might favor the defense and was not an implausible or fantastic justification.
DISPOSITION
The judgments are affirmed. The abstracts of judgment are ordered corrected to reflect the firearm-enhancement was imposed pursuant to section 12022.53, subdivisions (d) and (e)(1). The superior court is directed to prepare corrected abstracts of judgment and forward them to the Department of Corrections.
We concur: WOODS, J., ZELON, J.
“Delgado: Yeah, we’re going at it eh. [¶] . . . [¶]
“Kono: You know where you were really good though, I got to hand it to you is when um, when we were talking to you about Oscar. [¶] . . . [¶]
“Delgado: I know. I’m good at this shit eh.”