Opinion
F071096 F071119
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALBERTO EUDAVE, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. RAMON BARAJAS, JR., Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Alberto Eudave. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Ramon Barajas, Jr. Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF272911) (Super. Ct. No. VCF287942)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Alberto Eudave. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Ramon Barajas, Jr. Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On September 5, 2012, Jovany Ruiz was wounded in a drive-by shooting. Carlos Alberto Eudave and Ramon Barajas, Jr. (Eudave and Barajas, respectively; collectively, defendants) were separately charged as a result of the incident.
Following a consolidated jury trial, Eudave was convicted of premeditated attempted murder committed for the benefit of a criminal street gang, and in the commission of which a principal personally and intentionally discharged a firearm, causing great bodily injury. (Pen. Code, §§ 186.22, subd. (b), 187, subd. (a), 664, 12022.53, subds. (d), (e)(1); count 1.) Barajas was convicted of premeditated attempted murder (§§ 187, subd. (a), 664; count 1) and permitting someone to shoot from a vehicle (§ 26100, subd. (b); count 2), both of which were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), and in the commission of which a principal personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). Barajas's new trial motion, in which Eudave joined, was denied, and each defendant was sentenced to a total term of life in prison with the possibility of parole plus 25 years to life. Each was also ordered to pay various fees, fines, and assessments.
All statutory references are to the Penal Code.
Barajas's sentence on count 2 — two years plus 25 years to life in prison — was stayed pursuant to section 654. Barajas was also sentenced in an unrelated case that is not before us on this appeal.
Except with respect to Eudave's assertion of clerical error in his amended abstract of judgment, each defendant joins in the other's claims on appeal. We hold: (1) The trial court had no sua sponte duty to instruct the jury on assault with a deadly weapon as a lesser included offense of attempted murder, and so defendants' new trial motion was properly denied; (2) Substantial evidence supports the convictions of the substantive offenses, but not the true findings on the gang enhancements; and (3) Despite the fact the gang findings must be stricken, Eudave's firearm enhancement can be upheld even though he was not found to have personally discharged a firearm. Accordingly, we affirm the convictions as to both defendants. As to Barajas, we strike the gang findings and the firearm enhancements. As to Eudave, we strike the gang finding. We remand both matters for resentencing.
FACTS
I
PROSECUTION EVIDENCE
The Shooting
In September 2012, Ruiz resided with his parents on Tobias Road in Poplar. He affiliated with the south, which caused a conflict with Northerners. Most of the students at the charter school he attended affiliated with Sureños, i.e., south. Sureños usually identified with the color blue. Norteños (north) usually identified with the color red.
Unspecified references to dates in the statement of facts are to the year 2012.
Ruiz was acquainted with defendants, as Poplar was a small town where most people knew each other. Both were Norteños. On one occasion prior to the shooting, Ruiz was in a store in Poplar with two of his friends. Barajas was coming out of an alley on a bicycle and started saying Ruiz's group "bang[ed]." Ruiz ignored him, whereupon Barajas pulled out a gun. Ruiz's group walked back to the store. On another occasion, Ruiz and a friend were in front of Ruiz's house when Barajas and some others passed by in a van. Barajas pulled out a gun and "flashed" it, although he did not point it at anyone.
Ruiz did not know exactly where Eudave lived, but assumed he lived in Poplar because he was there all the time. Ruiz frequently saw him in Barajas's company. Ruiz knew the exact house in which Barajas lived.
On the afternoon of September 5, Ruiz, Ulysses Pimental, Elias Pompa, and Cristo Alvarado were smoking marijuana in the front yard of Pimental's house, which was down the street from Ruiz's residence. Like Ruiz, the others were not Sureños, but "just h[u]ng out with them."
Ruiz and the others were sitting in a circle on some chairs when Barajas passed by in his car, going south. The car was going "kind of slow." Barajas and Ruiz's group looked at each other and Barajas left. About five minutes later, Barajas came back by, going north. This time, Eudave was with him. Ruiz could see him very clearly. Eudave was in the front passenger seat. The window was down. Eudave was sitting on the window sill with his legs inside the car and the upper part of his body turned. Ruiz had his back to Eudave, but turned when Eudave said "[N]orte" and his gang. Ruiz believed the car stopped, although it could have been moving forward very slowly. Ruiz saw Eudave point a handgun at him, then heard shots. He and his companions ran. Ruiz could clearly see that Eudave was shooting at them and Barajas was driving. Ruiz threw himself behind a bush and heard the car leave. At first, he did not realize he had been shot. Then he saw blood squirting from his side. His neighbor said she would take him to the hospital because it would take an ambulance too long to get there.
Pompa estimated that the car came back by about 10 to 15 minutes later. Alvarado estimated less than five minutes elapsed between the two passes.
Pompa heard someone say, "What's up fool." He saw arms coming out of the passenger window, pointing a gun. The person fired, and Pompa ran. Because Pompa was not expecting anyone to be in the car other than Barajas, he was not able to get a good look at the shooter's face. If anyone said "Norte," Pompa did not hear it. Pompa had lived in Poplar for 17 years. To his knowledge, he had never seen defendants together. He had, however, seen Eudave around Poplar. Pompa knew him by the nickname "Cartoon."
Alvarado could not tell whether the car contained a passenger on its second pass. He heard someone call out "Norte," but could not tell if it came from the driver's side or the passenger's side. He then heard shots fired, and he turned around and ran. Alvarado told Tulare County Sheriff's Detective Delacruz there was gang-related music being played in the car. He also told Delacruz the shooter had a unibrow.
Alvarado had seen defendants together in Poplar, "way in the past." When the shooting occurred, he did not see the shooter's hands or arms, nor did he see the gun. He did, however, see the flash coming out of the car.
On September 5, Brenda Harris lived at the corner of Avenue 145 and Tobias. Around 2:15 p.m., she saw Barajas's red car drive past. She did not know who was driving. She knew Eudave by the nickname "Cartoon." She had seen him several times in the neighborhood, but did not know where he lived and did not see him the day of the shooting. She could tell there were two males in the car, although she could not tell who they were. She heard gunshots right after the car passed her house. She did not see anyone sitting on the window sill or recall hearing any yelling coming from the vehicle.
Harris was not acquainted with Barajas, but identified the car in prosecution photographs as the vehicle she saw. She had seen it several places in Poplar before this occasion. She thought it was a 1991 four-door Honda.
Barajas's mother, Maria Mendez, identified the car in the prosecution photographs as being her family's car. It was a red 1994 Nissan Sentra. Maria Mendez denied that Barajas frequently used the car. On September 5, it was in her possession, as she was taking her mother to her dialysis and doctors' appointments, and visiting her sister, who lived near Wasco and was recovering from surgery. During the first week of September 2012, this was a daily routine for Maria Mendez.
Maria Mendez gave a statement to Delacruz on September 7. She told him she had taken her mother to the doctor on September 6. She said she did not use the vehicle on September 5 and did not know its whereabouts at the time of the shooting. She said Barajas frequently took the vehicle without her knowledge. At trial, Maria Mendez denied telling Delacruz these things. Rather, she said that if Barajas asked for a ride, she or her husband would take him.
Maria Mendez had never seen Eudave with Barajas outside of court.
Maribel Alejandre was in her backyard when she heard gunshots. At some point, she saw a young man next door to her house who had been shot. He was bleeding and asked for a ride to the hospital. Alejandre waited a bit because she was told an ambulance had been called, but then she started to drive him to the hospital. They met the ambulance on the way.
Tulare County Sheriff's Deputy Linares responded to the location at which Alejandre met up with the ambulance. Inside the ambulance, Linares observed Ruiz, who had a single gunshot wound to his lower left abdomen. Ruiz informed Linares that he was a Southern gang member who had just been shot by a Northern gang member named "Carlos." Ruiz said he had been "hanging out" with some friends at a residence on Tobias in Poplar. A 1991 or 1992 red Honda Civic, driven by "Raymond," drove by. Carlos was the front passenger, and fired approximately three shots from the vehicle, one of which struck Ruiz. Ruiz said he did not know Carlos's or Raymond's last names, but he knew they were Northern gang members from previous problems he had had with them. He said they lived near his house, but he did not know where. He said nothing about anyone yelling "Norte," but Linares did not ask. Linares was concerned with getting essential information to help locate the crime scene and suspects, and he knew Ruiz was going to be transported soon due to his injury.
At trial, Ruiz identified photographs of Barajas's car. He testified he was certain it was the car he saw. He explained that when he was in the ambulance, he did not say it was a Honda Civic; rather, he said it was a burgundy box car like a Honda Civic. He was more familiar with Hondas, and the cars looked somewhat similar. He had seen Barajas drive the red car on many occasions.
When Pompa described the car to Delacruz, he said it had black rims. As shown in the prosecution photographs, the car belonging to Barajas's family had silver rims.
At trial, Alvarado testified that prior to the shooting, a red car passed by. He had seen the car depicted in the prosecution photographs "around," but was not sure it was the car he saw the day Ruiz was shot. There were a number of small, older-model, red cars around Poplar.
Tulare County Sheriff's Deputy Doyle was dispatched to the area of Tobias and Avenue 145 at 2:52 p.m. on September 5. He was advised there was a subject with a gunshot wound, and possibly a red, four-door Toyota car was involved in the incident. Doyle found three fresh nine-millimeter shell casings in the roadway at various distances from the house on Tobias at which the victims were. The presence of shell casings indicated the firearm was a semiautomatic rather than a revolver.
The car subsequently was described as a Honda.
Ruiz ultimately was taken by helicopter to a hospital in Fresno, where he immediately underwent surgery. He was hospitalized for six days. While he was in the hospital, Delacruz took a statement from him and showed him photographic lineups. Two of these contained different photographs of Eudave, while the other contained a photograph of Barajas. Ruiz immediately identified all three photographs of defendants as being the people he had seen during the incident. While in the hospital, Ruiz reported the gun was a revolver. He made this assumption because he had seen Barajas with a revolver in the past. He had not previously seen Eudave with a gun.
A bullet fragment was recovered from his abdomen.
Two photographic lineups containing different pictures of Eudave were used because of different hairstyles Eudave had had in the past.
The day after the shooting, Tulare County Sheriff's Detective Bruce located the red Nissan Sentra depicted in prosecution photographs in front of a residence at Kilroy and Avenue 146, in Poplar. On September 7, the inside window frames on the right side of the vehicle were processed for gunshot residue. Several consistent particles of gunshot residue were found on the right front window. Many more such particles were found on the right rear window. This was an indication the vehicle could have been moving when the weapon was fired.
Debra Kowal, the criminalist who analyzed the gunshot residue kit, explained that "characteristic" particles contain all three elements of the primer, specifically lead, barium, and antimony. "[C]onsistent" particles contain either lead only, lead and barium, or lead and antimony. Such particles can be distributed from the discharge of a firearm or from being nearby when a firearm was discharged, but they can also come from an environmental source. Kowal could not say for certain the car contained gunshot residue because a gun was fired from it.
According to Detective Meek, who processed the vehicle, had the shooter been sitting on the window frame outside of the vehicle with the vehicle moving, there probably would have been no gunshot residue.
Gang Evidence
Tulare County Sheriff's Sergeant Derington, who spent approximately four years in the gang unit and was assigned to the south county area that included Poplar, had had a number of contacts with defendants, although not when the two were together. She spoke to Eudave several times, either consensually or during investigations. He was always forthcoming about his gang involvement, and always admitted he was a Northern gang member. Specifically, he was a member of the Poplar Original Gangsters (POG), the Northern street gang in Poplar. He had tattoos and the moniker "Cartoon." On one occasion, Derington contacted Eudave outside a residence on Kilroy in Poplar. Other Northern gang members lived there, and Derington had seen Eudave there before. Eudave was arrested for the Ruiz shooting after being detained with approximately seven other Northern gang members following a disturbance at an apartment complex in Tipton that was a known Northern gang hangout.
Doyle, who had been a community-based officer in Poplar for five to six years at the time of the shooting, had twice seen the moniker "Cartoon" in graffiti a couple blocks from the location of the Ruiz shooting, possibly within months before the incident.
This was the residence of Eudave's cousins. His mother lived in Tipton, and Eudave always gave Derington the address of the Tipton residence. Although Derington's south county patrol area included Tipton, she had always contacted Eudave in Poplar, which was approximately 10 miles from Tipton. On September 5, Derington searched the Tipton residence. No gun or ammunition was found. Eudave's mother reported Eudave had moved out within the past two weeks, and she did not know where he was. Although he came to the house once in a while, she said he had not been there for a couple of days.
In January, Derington spoke to Barajas while he was with a group of other Northern gang members and affiliates with whom Derington was familiar. Derington concluded Barajas was a member of POG because of his admissions, his clothing, his associating, and the fact he was housed with Northern gang members in custody. At the time Barajas's residence was searched on September 7, there was POG and Northern graffiti adjacent to and across the street from the house. In addition, a red shirt, red bandanas, and an envelope with "POG" written on it were found inside Barajas's bedroom. Also found were items bearing gang writing, including "X4," "Poplar," "Norte," and "Norteño."
Delacruz, who was assigned to the gang unit, had extensive training and experience with gangs over the course of the more than 20 years he had been a sworn peace officer. He testified as an expert on criminal street gangs in Tulare County.
Delacruz explained that a criminal street gang is three or more persons claiming the same color, sign, or symbol, and committing crimes. There are hundreds of gangs. Gang members in general gain respect within their gang by "put[ting] in work," i.e., representing their gang and committing crimes for the gang's benefit. Gang members typically identify themselves by colors, clothing, hand signs, hairstyles, or tattoos; however, not all gang members have tattoos or "carry their colors." Even so, they are known within the gang community because of their history.
Delacruz described the Norteño gang as a group of persons who sympathize with the prison gang Nuestra Familia. They identify with the number 14, which stands for N or "ene," the 14th letter of the alphabet, and claim the color red. The primary activities of the Norteño street gang are murder, attempted murder, drive-by shootings, shootings, stabbings, vandalism, graffiti, carjacking, robbery, extortion, and weapons violations.
Delacruz explained that the umbrella gang is the Norteños, but there are also subsets or cliques. POG is one of a number of Norteño subsets in Tulare County. POG's are Norteños from Poplar. According to Delacruz, not all gang members are in subsets, however, and might simply claim North and be Northerners or Northerner sympathizers. Delacruz did not know the number of POG members or who the leader was. He explained that the Tulare County Sheriff's Department classifies Northerners and Southerners as such without breaking those gangs down into their subsets.
Delacruz explained that the primary rivals of the Norteños or Northerners are Sureños or Southern gang members. These gang members come from "la eme," the Mexican Mafia prison gang. They identify with blue and the number 13, which stands for M or the 13th letter of the alphabet. There is a history of violence between the Norteños and the Sureños, including in Tulare County.
In preparing supplemental gang opinions (gang packets) in connection with criminal cases, Delacruz first tries to establish whether the person under investigation is a gang member. There are 10 criteria that are used; in Tulare County, the person must meet three in order to be identified as a gang member.
There must also be two predicate offenses. For purposes of the present case, Delacruz used an incident that occurred in the Terra Bella area on January 31, 2011. Gabriel Mejia drove past a group of individuals by a middle school. He stopped, got out of the truck, and approached them. He asked, "What's cracking?" and pulled out a handgun. He asked if they were Southerners or if they were gang-bangers, then got back in his vehicle and left. As a result of the incident, Mejia was convicted of firearms offenses and a gang enhancement. At the time, he was a Norteño gang member. In Delacruz's opinion, Mejia committed the crime in order to gain respect and to be feared by citizens of the area, and for the benefit of the gang.
The second predicate offense occurred in Woodville on April 16, 2011, and involved Alberto Farias and Clint Gilbert, both of whom were Northern gang members. Two known Southern gang members from the area were traveling on one of the roads when Farias and Gilbert saw them. Farias, the passenger, instructed Gilbert, the driver, to pull up next to them. Gilbert complied. Shots were fired at the victims, who had a single vehicle accident. As a result of the incident, Gilbert and Farias were convicted of attempted murder, weapons charges, and a gang allegation. In Delacruz's opinion, this was a gang-related crime, in that Northerners attempted to "take out" rival gang members.
In preparing his gang packet for this case, Delacruz looked for defendants' law enforcement contacts. Eudave had a number of contacts with a probation officer between April 2008 and August 2008, involving such things as gang writing and tagging, using the school Internet to view gang-related Web sites, and testing positive for drugs. On June 13, 2008, Eudave admitted he was an associate with Northern gangs and specifically affiliated with Varrio Poplar Norte, also known as VPN. Eudave also had a number of law enforcement contacts between February 2008 and his arrest in this case. In one, which took place on August 21, 2010, Eudave admitted being a Northerner from Poplar, although he resided in the Tipton area. On April 10, 2012, he was contacted with several known Northern gang members, and admitted he was active with POG. He had several POG and Northern tattoos. During a contact on July 29, 2012, Eudave told Delacruz that he was a gang member and had gang tattoos, and his monikers were Cartoon, Uni, and Unibrow. On three occasions, including following his arrest in this case, Eudave was booked into jail and admitted, for classification purposes, he was a Northern gang member.
Delacruz also prepared a gang packet pertaining to Barajas. Between August 2008 and December 2008, Barajas was involved in several gang-related confrontations at his school. He admitted claiming Norte on at least two of those occasions. Between March 2009 and May 2011, Barajas had several contacts with the probation department in which he actively claimed North and associated with Northern gang members, and in which gang-related clothing was found in his room. Barajas had several law enforcement contacts between May 2009 and August 2013 in which he was found to be associating with Northern gang members and wearing gang attire. During the contact on November 3, 2011, Barajas told a deputy he associated with Northern gang members. On January 6, 2012, Barajas admitted being a Northern gang member with POG. On April 20, 2012, an investigation into a verbal argument in which several Northern gang members were involved revealed the reporting person had heard one of the gang members ask Barajas for a gun, and Barajas had lifted his shirt as if he was going to remove a gun. On three occasions, Barajas stated on jail classification questionnaires that he claimed North.
Eudave was contacted later at the same house, but was not seen with Barajas or involved in the incident. In none of the law enforcement information Delacruz had was there any report defendants were seen together as members of the same gang.
Based on all the information, Delacruz opined that at the time of the shooting in this case, defendants were active Northern gang members belonging to the POG subset. That Barajas, whose moniker was Ray Ray, did not have tattoos did not mean he was not a gang member, as older gang members instructed and educated younger gang members not to have gang-related tattoos.
In Delacruz's experience, it is difficult to get witnesses to come forward in gang-related cases. The majority of such crimes are committed in small communities, where everybody knows everyone else, and people are afraid of retaliation. In addition, it is difficult to get rival gang members — even those who are victims — to cooperate in gang-on-gang crimes. They are told by the hierarchy in the prison gangs not to testify in court or against a rival gang member.
In Delacruz's opinion, if a POG shot at a Southern-affiliated juvenile, it would constitute putting in work for the gang. The shooter would elevate himself within the gang. In response to a hypothetical question that tracked the prosecution evidence in this case, Delacruz opined the shooting was committed for the benefit of the Northern gang, because Northern gang members have been instructed to shoot and assault their rivals, the Southerners. Doing so shows their loyalty to the gang, allowing them eventually to be known as someone to be feared. The crime benefited them by showing they were willing to put in this work, and eventually they could be promoted within the ranks of the gang. The crime was committed to benefit the gang overall by showing the Southerners that this was Northern territory, and the Northerners wanted the Southerners out of town.
II
DEFENSE EVIDENCE
The Shooting
As of September 5, Maria Chavez resided on South Adams in Tipton. Eudave sometimes lived with her and her family. During that time, he frequently went back and forth to his mother's house. Chavez never knew Eudave to be violent or mean, and never saw him with a gun.
Eudave was arrested in connection with this case outside Chavez's apartment complex. He was staying with her and her family on September 5. Although she could not account for his whereabouts for the entire day, he would always be with her between 2:00 and 3:00 p.m., because he would be waiting for her husband to get off work. Eudave never had a car. Chavez and her family provided him with transportation. He never had anyone over to the house, and Chavez had never seen Barajas before she testified. Between September 5 and his arrest September 7, Eudave never acted weird or nervous. He seemed to have nothing to hide.
Jose Martinez was Chavez's husband. He confirmed Eudave was living with them on September 5. He described Eudave as a calm person. In the approximately 10 years they had known each other, Martinez had never seen Eudave get into a fight, or have weapons or guns. Between September 5 and his arrest on September 7, there was nothing unusual about Eudave's behavior.
Darlene Palafox was the mother of Barajas's child, with whom she was pregnant on September 5. During September, she and Barajas went to work in the fields at the beginning of the month, but then stopped and stayed home because she got sick when she was working. They stayed at Barajas's house on Kilroy. Palafox heard about the shooting a couple days after it happened. Barajas was with her all of September 5. The red car that his mother drove was not at home. Barajas never drove the car that day.
When in the fields, they wore bandanas of various colors, including red.
On September 5, Lionoso Arredondo lived two houses away from where the shooting took place. He saw the car from which the shots were fired. The car shown in the prosecution's photographs was not the car that was involved. Although the car that was involved was a red Honda, the same color as in the photographs, it had a spoiler on top of the trunk. It passed once, turned around, and on the second pass, the shots were fired. The shooter was pointing his gun through the window of the car. Arredondo did not get a good look at him because he kind of ducked down when he saw Arredondo. At no time did Arredondo see someone sitting on the vehicle window.
Maria Mendez's sister, Blanca Mendez, confirmed Maria Mendez drove her red car to Blanca Mendez's home every day during the first week of September. Maria Mendez would bring the sisters' mother after the mother's dialysis appointment in the morning and would stay at least until 3:00 p.m., sometimes longer. During this time, Blanca Mendez lived on a ranch surrounded by almond trees. There was dove hunting going on close by.
Ramon Barajas, Sr., is Barajas's father. The red Nissan Sentra was driven by Ramon Barajas, Sr., and his wife. Barajas never drove it, since he did not have a driver's license and his father would not lend him the car.
Eyewitness Identification Evidence
Robert Shomer testified as an expert on eyewitness identification. He held a doctorate degree in experimental psychology, the field of study that focuses on human beings' perception and memory and the degree to which an accurate identification can be made under stress.
Based on Shomer's training and experience, one of the major, consistent findings in the area of eyewitness identification is that such identification occurs at a very low level of accuracy and reliability. Shomer explained that recording images in one's brain is not a photographic process. Stress very strongly negatively impacts the accuracy of eyewitness identification. In addition, people often blend what they actually saw with what or whom they assume or think they saw. There is almost no correlation between the confidence someone has in the accuracy of his or her identification and the true accuracy of that identification.
According to Shomer, the level of accuracy is affected by numerous factors, particularly the largest source of error: resemblance among people. In addition, anything that affects the brain, such as fatigue or the ingestion of alcohol or drugs — including marijuana — negatively affects how well the brain can make an accurate identification. Marijuana in particular has a very significant distorting effect on perception, including the passage of time and the accuracy of intake of features for the purpose of later eyewitness identification. Life-threatening stress results in a vivid memory of the situation, but the details are far less accurate. When a weapon is involved, not only does it raise the stress level so there is more disruption of the various processes needed for accuracy, but it also acts as a visual magnet. People focus on it and are less accurate about the face of the wielder of the weapon.
If, after a very stressful situation in which someone was shot, the victim says he or she did not know who the perpetrator was, then later tells the police he or she is now sure of the shooter's identity because it is someone the victim knows, it is a classic danger signal related to inaccuracy. If someone known to the victim is responsible for a crime against the victim, one of the first things that should be reported in an accurate report is that the victim knows who did it. A delayed announcement of familiarity is associated with making an assumption that could be influenced by numerous factors, including information from other people and the victim's assessment of who might do such a thing to him or her. In cases of gang-on-gang violence, the victim may not be completely neutral in assigning responsibility for an attack.
Shomer explained that making an identification is making a commitment. The person is committed to the fact he or she now believes the identified person is the perpetrator. Once a person commits, memory changes to support that commitment. When a person comes to conclude a certain individual he or she knows was the perpetrator and is then shown a photographic lineup that includes a picture of that person, selection of the photograph of that person says nothing about the accuracy of the identification. In addition, the more time that passes between the event and the identification procedure, the more memory decays. The more the decay, the more the loss of accuracy. An in-court identification does not test memory in any valid way. Rather, it elicits someone's commitment in a highly suggestive context.
According to Shomer, the same person should never be included in two different photographic lineups, because it sends the message the police are interested in that person. Even without that problem, it is not good practice to put the suspects' photographs in the same position in both arrays, as was done here, because it can create suggestion.
Due to the nature of eyewitness identification and the factors that can affect it, even a completely honest witness doing his or her best to be accurate can make mistakes in perception and identification of what he or she saw.
DISCUSSION
I
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE
Barajas moved for a new trial on the ground, inter alia, that the trial court erred by failure to instruct, sua sponte, on assault with a deadly weapon as a lesser included offense of attempted murder. He argued that because of the allegation in the informations that a deadly weapon was used, such an instruction would have been proper. Eudave joined in the motion. The People opposed it. The trial court denied the motion on the ground assault with a deadly weapon, while possibly a lesser related offense, was not a lesser included offense.
Defendants now contend they should have been granted a new trial due to the court's purported instructional error. We disagree.
Subdivision 5 of section 1181 permits a court to grant a new trial when it has "misdirected the jury in a matter of law . . . ." Generally speaking, we review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard. (People v. Thompson (2010) 49 Cal.4th 79, 140.) It appears, however, that we review instructional error arguments de novo. (People v. Olivas (2016) 248 Cal.App.4th 758, 772; see People v. Banks (2014) 59 Cal.4th 1113, 1160, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; accord, People v. Cook (2006) 39 Cal.4th 566, 596; People v. Waidla (2000) 22 Cal.4th 690, 733.) In the present case, our conclusion the trial court did not err is the same under either standard.
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154.)
"A trial court has a sua sponte obligation to instruct the jury on any uncharged offense that is lesser than, and included in, a greater charged offense, but only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense. [Citations.] An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). [Citations.] [¶] Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense. . . . [¶] Under the accusatory pleading test, a court reviews the accusatory pleading to determine whether the facts actually alleged include all of the elements of the uncharged lesser offense; if it does, then the latter is necessarily included in the former. [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 348-349; accord, e.g., People v. Lopez (1998) 19 Cal.4th 282, 288-289; People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted.)
Under the elements test, assault with a deadly weapon — or, to be more precise given the circumstances of the present case, assault with a firearm — is not a lesser included offense of attempted murder, because attempted murder can be committed without using a firearm or other deadly weapon. (People v. Nelson (2011) 51 Cal.4th 198, 215; People v. Parks (2004) 118 Cal.App.4th 1, 6; People v. Richmond (1991) 2 Cal.App.4th 610, 616.) Rather, it is a lesser related offense on which a trial court is not required to instruct unless all parties consent. (People v. Nelson, supra, 51 Cal.4th at p. 215; People v. Birks, supra, 19 Cal.4th at p. 136, fn. 19.) They did not do so here.
With respect to the accusatory pleading test, neither information alleged either defendant possessed the present ability to inflict injury on Ruiz. " 'Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citation.]" (People v. Sanchez (2016) 63 Cal.4th 411, 457; see People v. Marshall (1997) 15 Cal.4th 1, 36.) An assault, by contrast, is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Attempted murder may be committed without the present ability to inflict harm, an essential element of assault. (See People v. Rundle (2008) 43 Cal.4th 76, 143-144, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see generally People v. Chance (2008) 44 Cal.4th 1164, 1170-1171, 1172.)
Because of this basic problem, it appears defendants' contention fails, even assuming they are correct that enhancement allegations are to be considered under the accusatory pleading test. In any event, we conclude they are not correct.
In People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), the California Supreme Court held that a firearm use enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses. (Id. at p. 96.) The court observed that under California law, enhancement statutes do not prescribe new offenses, but merely additional punishment for offenses in which, for instance, a firearm is used. (Id. at p. 100.) It concluded that considering enhancement allegations as part of the accusatory pleading in defining lesser included offenses would confuse criminal trials. (Id. at p. 101.) It reasoned: "Present procedure contemplates that the trier of fact first determines whether the defendant is guilty of the charged offense or a lesser included offense, and only then decides the truth of any enhancements. [Citation.] The sentencing judge then decides whether to use the fact found as an enhancement to impose the upper term of the sentence, or to enhance the sentence. [Citation.] This orderly, step-by-step procedure would become muddled if evidence of the enhancement must be considered in determining guilt of a lesser offense." (Ibid., fn. omitted.)
Defendants contend Wolcott's rationale is at odds with Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), in which the United States Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.) In explaining why the label given a required finding does not control the determination whether a defendant has a Sixth Amendment jury trial right with respect to that finding, the high court observed: "[W]hen the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an 'element' of the offense. [Citation.]" (Apprendi, supra, at p. 494, fn. 19, italics added.)
Seizing on the emphasized language, defendants argue an enhancement is now a fact that must be found by the jury like every other element of an offense. Accordingly, it must now be considered when applying the accusatory pleading test with respect to a trial court's sua sponte duty to instruct on lesser included offenses.
We disagree for several reasons. First, Apprendi and its progeny address who, as between judge and jury, must decide the existence of facts that increase a defendant's maximum authorized sentence. (People v. Davis (2005) 36 Cal.4th 510, 564; see Southern Union Co. v. United States (2012) 567 U.S. 343, ___ [132 S.Ct. 2344, 2350] & cases cited.) In light of Apprendi's " 'narrow' holding" (People v. Contreras (2013) 58 Cal.4th 123, 149) and the failure of it or its progeny to address the tests for determining lesser included offenses, we do not believe it has any effect on California law in that regard. (See People v. Alvarez (2002) 27 Cal.4th 1161, 1176 ["cases are not authority for propositions not considered"].)
Second, defendants' emphasis on the "functional equivalent" language (Apprendi, supra, 530 U.S. at p. 494, fn. 19) overlooks the remainder of that sentence and the high court's overall holding. The characterization of sentence enhancements as the "functional equivalent" of elements of greater offenses "means only that a defendant is entitled to have a jury determine whether those facts supporting an increased sentence have been proven beyond a reasonable doubt." (Porter v. Superior Court (2009) 47 Cal.4th 125, 137.) In the case before us, jurors were instructed on the elements of the charged offenses and enhancements, and the requirement that they be proven beyond a reasonable doubt. Their guilty verdicts and true findings thus satisfied the Sixth Amendment's requirements as articulated in Apprendi. (See People v. Lewis (2008) 43 Cal.4th 415, 521, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 918-920.)
Last, in People v. Alarcon (2012) 210 Cal.App.4th 432 (Alarcon), the Court of Appeal explained why the argument made by defendants is incorrect, and Wolcott remains good law with respect to the accusatory pleading test. (Alarcon, supra, at pp. 436-439.) The court discussed state high court opinions post-Apprendi (Alarcon, supra, at pp. 437-438; see, e.g., Porter v. Superior Court, supra, 47 Cal.4th at pp. 137-138; People v. Izaguirre (2007) 42 Cal.4th 126, 130-134; People v. Sloan (2007) 42 Cal.4th 110, 122-123; People v. Seel (2004) 34 Cal.4th 535, 548-550), as well as the fact the California Supreme Court has consistently held that insofar as noncapital cases are concerned, the rule requiring instructions on lesser included offenses arises only under California law (Alarcon, supra, 210 Cal.App.4th at pp. 438-439; see, e.g., People v. Breverman, supra, 19 Cal.4th at pp. 156-169; People v. Birks, supra, 19 Cal.4th at pp. 118-119, 127).
Defendants fail to convince us Alarcon was wrongly decided. It is true they have the right, under the federal due process clause, to proof of every element of the offense and the enhancements beyond a reasonable doubt, but, as we have explained, they were accorded this right by the trial court's instructions on the charged offenses and enhancements, and on the requirement of proof beyond a reasonable doubt. That Apprendi's holding is grounded not only on the Sixth Amendment right to jury trial, but also on the Fifth Amendment right to due process (Apprendi, supra, 530 U.S. at pp. 476-477, 484; People v. Sloan, supra, 42 Cal.4th at p. 123), does not mean defendants somehow enjoyed a right under the federal Constitution to instructions on a purportedly lesser included offense. We are bound by California Supreme Court authority holding otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II
SUFFICIENCY OF THE EVIDENCE
Defendants claim the evidence was insufficient to establish they were the perpetrators, and to support the true findings on the gang enhancements. The applicable legal principles are settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Where the circumstances support the trier of fact's finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant's innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and applies equally to convictions and enhancement allegations (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1197, disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Garcia (2014) 224 Cal.App.4th 519, 522-523). A. The Eyewitness Identifications
Defendants contend the evidence cannot sustain their convictions, because eyewitness identification is inherently unreliable. We conclude otherwise.
The dangers and fallibility of eyewitness identification — particularly when a witness identifies a stranger based on a single, brief observation made at a time of stress — have long been recognized. (See, e.g., United States v. Wade (1967) 388 U.S. 218, 228; People v. McDonald (1984) 37 Cal.3d 351, 363-364; U.S. v. Russell (6th Cir. 1976) 532 F.2d 1063, 1066.) In an attempt to demonstrate how and why the accuracy of the identifications made of defendants in the present case may have been adversely affected, defendants presented Shomer's expert testimony, summarized ante. (See People v. McDonald, supra, 37 Cal.3d at p. 355.)
Although Shomer testified eyewitness identification occurs at a "very low level of accuracy," and, based on a hypothetical question from evidence at trial, that there was a "classic danger signal . . . related to inaccuracy," at no time did he deem eyewitness identification inherently unreliable or offer an opinion as to the credibility of the various eyewitnesses. He made it clear that evaluation was the jury's responsibility.
Under the evidence presented here, the credibility of the witnesses and the accuracy of their identifications properly were left to the jury. (See Perry v. New Hampshire (2012) 565 U.S. 228, 245-246; People v. Boyer (2006) 38 Cal.4th 412, 481.) Defense counsel had a full opportunity to cross-examine the witnesses "about all aspects of the identification process" (People v. Boyer, supra, at p. 481), and the witnesses' identifications of defendants — particularly those made by Ruiz, who was acquainted with both men — "were neither physically impossible nor inherently incredible." (People v. Elliott (2012) 53 Cal.4th 535, 585.)
"[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.]" (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) " 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Because a rational trier of fact could have found Ruiz's identifications of defendants credible, reversal of defendants' convictions is not warranted. (See People v. Hovarter (2008) 44 Cal.4th 983, 997; People v. Zamudio, supra, 43 Cal.4th at p. 357.) We reject defendants' attempts "to reargue the evidence on appeal and reiterate that 'it is not a proper appellate function to reassess the credibility of the witnesses.' [Citation.]" (People v. Thompson, supra, 49 Cal.4th at p. 125.) B. The Gang Enhancements
Defendants argue the jury's true findings on the gang enhancement allegations are not supported by substantial evidence, because there was insufficient evidence connecting the two predicate acts to the POG Norteño subset with which defendants were affiliated. The Attorney General responds that the jury reasonably could have inferred the predicate offenses and charged crimes all were done to benefit the Norteños. We conclude defendants have the better argument.
The gang enhancements required proof defendants committed the substantive offenses (1) "for the benefit of, at the direction of, or in association with any criminal street gang," and (2) "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Since the requirements of the first prong are listed in the disjunctive, if the crime was committed for the benefit of a criminal street gang, it need not also have been committed in association with the gang. A defendant is not required to be an active or current member of the criminal street gang that benefited from his or her crime(s). (People v. Bragg (2008) 161 Cal.App.4th 1385, 1402.)
As part of proof of the gang enhancement, the prosecution must prove the existence of a criminal street gang. The Street Terrorism Enforcement and Prevention Act (the STEP Act) "defines 'criminal street gang' as any ongoing association that consists of three or more persons, that has a common name or common identifying sign or symbol, that has as one of its 'primary activities' the commission of certain specified criminal offenses, and that engages through its members in a 'pattern of criminal gang activity.' ([§ 186.22], subd. (f), italics [omitted].) A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' specified criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' (Id., subd. (e).)" (People v. Loeun (1997) 17 Cal.4th 1, 4.) "Thus, for a group to fall within the statutory definition of a 'criminal street gang,' these requirements must be met: (1) the group must be an ongoing association of three or more persons sharing a common name or common identifying sign or symbol; (2) one of the group's primary activities must be the commission of one of the specified predicate offenses; and (3) the group's members must 'engage in or have engaged in a pattern of criminal gang activity.' [Citations.]" (Id. at p. 8.)
A pattern of criminal gang activity can be proven, inter alia, through evidence of the charged offense and another offense committed on a prior occasion by the defendant's fellow gang member. (People v. Gardeley (1996) 14 Cal.4th 605, 625, disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) "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.]" (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) The "primary activities" requirement can be met by proof of either prior conduct or acts committed at the time of the charged offenses. (Ibid.)
POG was not shown to be a criminal street gang, as defined by the STEP Act, in its own right. Although we can surmise it was an ongoing association of three or more persons who shared a common name or identifying sign or symbol, no evidence was presented as to the group's primary activities or that the group's members engaged in a pattern of criminal gang activity. However, the prosecution relied on the Norteño criminal street gang (also referred to as Northerners) as the relevant gang. Accordingly, we must determine whether the evidence sufficiently established such a gang.
According to the Attorney General, the relevant gang was the Norteños in Tulare County.
If the prosecution's theory of why a criminal street gang exists turns on the conduct of one or more gang subsets, the prosecution is required "to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang." (People v. Prunty (2015) 62 Cal.4th 59, 67 (Prunty).) There can be no doubt Delacruz's testimony was sufficient to show an associational connection between POG, which he explained is a Norteño clique or subset, and the Norteño gang. His testimony also established defendants self-identified with POG and Northerner.
Delacruz relied in part on statements defendants made in response to jail classification questionnaires and during various law enforcement contacts. At no time have defendants claimed this evidence violated Crawford v. Washington (2004) 541 U.S. 36 or Miranda v. Arizona (1966) 384 U.S. 436. (See People v. Sanchez, supra, 63 Cal.4th at pp. 670-671; People v. Elizalde (2015) 61 Cal.4th 523, 527.)
With respect to the requisite predicate offenses, however, Delacruz relied on a crime committed by a Northern gang member from Terra Bella, and one committed by a Northern gang member from Woodville. Although Delacruz identified both perpetrators as being Northerners, he also testified that Norteños is the umbrella gang and contains subsets or cliques. In addition, some of its members are not in subsets but simply claim "North." He also testified that the Tulare County Sheriff's Department classifies Northerners and Southerners as such, without breaking those gangs down into their subsets. In light of his testimony, it is impossible to tell whether the perpetrators of the predicate offenses belonged to subsets. Defendants belonged to a subset, however, and we do not believe the People can escape Prunty's requirements merely because of the gang classification system a particular law enforcement agency chooses to use. (Cf. People v. Ewing (2016) 244 Cal.App.4th 359, 372-373 [Prunty arguably not applicable where prosecution contended defendant was actively associating with Norteño gang regiment being established in Redding, and predicate offenses were committed by other Norteño gang members who were helping set up same gang regiment].)
"[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision ](f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization.
"Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22[, subdivision ](f) — i.e., that the group committed the predicate offenses and engaged in criminal primary activities — and that the defendant sought to benefit under section 186.22[,
subdivision ](b). But it is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Prunty, supra, 62 Cal.4th at pp. 71-72, fns. omitted.)
The state high court cautioned: "[T]here are some limits on the boundaries of an identity-based theory. The evidence must demonstrate that an organizational or associational connection exists in fact, not merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization. [Citation.] Although evidence of self-identification with the larger organization may be relevant, the central question remains whether the groups in fact constitute the same 'criminal street gang.' In making the required showing, . . . the prosecution must do more than simply present evidence that various alleged gang subsets are found within the same broad geographic area. . . . The prosecution must introduce evidence of the alleged subsets' activities, showing a shared identity that warrants treating them as a single group. . . . The key is for the prosecution to present evidence supporting a fact finder's reasonable conclusion that multiple subsets are acting as a single 'organization, association, or group.' [Citation.] Evidence of self-identification must refer to the particular activities of subsets, and must permit the jury to reasonably conclude that the various subsets are associated with each other because of their shared connection with a certain group." (Prunty, supra, 62 Cal.4th at pp. 79-80.)
Prunty was charged with attempted murder and assault with a firearm. To prove each offense was subject to a gang enhancement under section 186.22, subdivision (b), the prosecution introduced evidence from a gang expert, Detective Sample. Sample, who interviewed Prunty shortly after the latter's arrest, testified Prunty admitted he was a Norteño gang member and described his membership in the Detroit Boulevard Norteño " 'set.' " Sample also testified Prunty's clothing, previous contacts with law enforcement, and possession of Norteño graffiti and other paraphernalia were consistent with Norteño gang membership. (Prunty, supra, 62 Cal.4th at p. 68.) With respect to the prosecution's theory Prunty committed the charged offenses with the intent to benefit the Norteños, Sample testified concerning Norteños in general, and that Norteños in Sacramento (the relevant geographical area) were not associated with any particular " 'turf,' " but were found all over Sacramento with a lot of subsets based on different neighborhoods. (Id. at p. 69.) For predicate offenses, Sample described a confrontation between two Norteño gang subsets that resulted in the conviction of two Varrio Gardenland Norteños for a variety of offenses, and an incident in which members of the Varrio Centro Norteños shot at a former Norteño gang member. Aside from Sample's testimony the subsets referred to themselves as Norteños, the prosecution produced no specific evidence showing the subsets identified with a larger Norteño group, or that they shared a connection with each other or any other Norteño-identified subset. (Ibid.)
The California Supreme Court found the prosecution's evidence "fell short . . . with respect to the predicate offenses." (Prunty, supra, 62 Cal.4th at p. 82.) It noted Sample referred to two offenses involving three alleged Norteño subsets, but stated:
"Although Sample characterized these groups as Norteños, he otherwise provided no evidence that could connect these groups to one another, or to an overarching Sacramento-area Norteño criminal street gang. Sample did not describe any evidence tending to show collaboration, association, direct contact, or any other sort of relationship among any of the subsets he described. None of his testimony indicated that any of the alleged subsets had shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets. . . .
"Nor did Sample's testimony demonstrate that the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that [the] defendant sought to benefit. Although there was ample evidence that Prunty self-identified as both a member of the Detroit Boulevard Norteños and the larger umbrella Norteño gang, . . . the prosecution presented no evidence that the members of the Varrio Gardenland and Varrio Centro Norteños self-identified as part of the umbrella Norteño gang. Sample testified about the Sacramento Norteños' existence and their presence 'all over Sacramento' with 'subsets based on different neighborhoods.' But Sample never addressed the Norteño gang's relationship to any of the subsets at issue. And in describing the two alleged subsets that committed the predicate offenses, Sample offered no evidence that their members behaved in a manner that conveyed their identification with the larger association that Prunty sought to benefit. Instead, Sample simply described the subsets by name, characterized them as Norteños, and testified as to the alleged predicate offenses. He offered no additional information about their behavior or practices that could reasonably lead the jury to conclude they shared an identity with a larger group." (Prunty, supra, 62 Cal.4th at pp. 82-83, fn. omitted.)
The high court found evidence that Prunty claimed gang membership relevant to his intent in committing the assault. (Prunty, supra, 62 Cal.4th at p. 84.) It stated, however, that this evidence "provided no way for the jury to determine that the Norteños were an 'organization, association, or group' under the STEP Act's meaning — or, critically, that the alleged subsets that committed the predicate offenses were part of that group." (Ibid.) The court further found Sample's testimony about " 'the Norteños' " relevant, but found his "characterization of a group as a 'criminal street gang' . . . insufficient absent some reason to believe that conclusion was based on the evidence necessary to show a single criminal street gang to exist as the STEP Act defines it. . . . Sample's statements describing 'the Norteños' as 'a Hispanic street gang' are — for purposes of showing a criminal street gang to exist [citation] — purely conclusory and essentially of no use to the fact finder. [Citation.] Sample did not describe any facts tending to show an organizational or associational connection among the Norteño subsets he described, nor did he articulate any reasons for concluding that all such subsets are part of a single criminal street gang. Nor did Sample describe the material he relied on in reaching his conclusions . . . about the Varrio Gardenland and Varrio Centro subsets and their relationship to one another or a larger group. Thus, his testimony on this point had no value to the jury. [Citation.] The jury could not have relied on Sample's testimony to find that the prosecution established the existence of a criminal street gang . . . ." (Id. at pp. 84-85.)
The high court offered several "illustrative examples" of how the prosecution might show the requisite connection between those who commit the predicate acts and the group the defendant sought to benefit, such that the jury could infer a relationship among the group's members. (Prunty, supra, 62 Cal.4th at pp. 76-77.) "The most straightforward cases might involve subsets connected through formal ways, such as shared bylaws or organizational arrangements. Evidence could be presented, for instance, that such subsets are part of a loose approximation of a hierarchy. Even if the gang subsets do not have a formal relationship or interact with one another . . . the subsets may still be part of the same organization if they are controlled by the same locus or hub." (Ibid.) "In other situations, formal structure or hierarchy may not be present, but the facts may suggest the existence of behavior reflecting such a degree of collaboration, unity of purpose, and shared activity to support a fact finder's reasonable conclusion that a single organization, association, or group is present. One possibility in such situations is for prosecutors to show that members of the various subsets collaborate to accomplish shared goals." (Id. at p. 78.) "Even evidence of more informal associations, such as proof that members of two gang subsets 'hang out together' and 'back up each other,' can help demonstrate that the subsets' members have exchanged strategic information or otherwise taken part in the kinds of common activities that imply the existence of a genuinely shared venture. [Citations.] This type of evidence routinely appears in gang enhancement cases. [Citation.] In general, evidence that shows subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single street gang." (Id. at pp. 78-79.)
The requisite showing was absent in the present case. The closest Delacruz came to describing any sort of organizational or associational connection among the various Norteño subsets, or POG and the perpetrators of the predicate offenses, was to testify the Norteño gang is a group of persons who "sympathize" with the Nuestra Familia prison gang, and that it is difficult to get rival gang members — even those who are victims — to cooperate in gang-on-gang crimes, because "the way they're being educated and they're being told by these hierarchy people that are in the prison gangs, they're being told that you will not testify against a rival gang member or you will not testify in any court on anything. And if so, you will be disciplined . . . ." In our view, the mere mention of a hierarchy does not constitute substantial evidence of an organizational structure. (Cf. People v. Ewing, supra, 244 Cal.App.4th at pp. 366-369, 374-377.) With respect to the perpetrators of the predicate offenses, some basis evidence was presented, but nothing to show the relationship of the individuals — who were in different locales from each other and defendants — to each other, POG, or the larger gang defendants allegedly sought to benefit, such as would "permit the jury to infer a relationship among the group's members." (Prunty, supra, 62 Cal.4th at p. 76, fn. omitted.) That Delacruz stated the perpetrators were Norteño or Northern gang members does not overcome the problem. The fact there may be gang members throughout Tulare County who self- identify as Norteño or Northern is insufficient to allow reasonable jurors to conclude they all belong to the same overarching criminal street gang as that entity is defined for STEP Act purposes. (See Prunty, supra, at pp. 79-80.)
We are compelled by Prunty to conclude the evidence presented at defendants' trial was insufficient to establish the existence of a criminal street gang. (Compare People v. Cornejo (2016) 3 Cal.App.5th 36, 47-50, People v. Nicholes (2016) 246 Cal.App.4th 836, 845-848, & People v. Ramirez (2016) 244 Cal.App.4th 800, 805-808, 815-816 with People v. Vasquez (2016) 247 Cal.App.4th 909, 917-920, 924-927 & People v. Ewing, supra, 244 Cal.App.4th at pp. 372-377.) Accordingly, it was not sufficient to support the jury's true findings on the gang enhancement allegations.
III
SENTENCING
Our conclusion with respect to the gang allegations means neither defendant can be subjected to an enhancement under section 186.22, including the 15-year minimum parole eligibility term specified by subdivision (b)(5) of that statute. The Attorney General concedes it also means the firearm discharge enhancements imposed on Barajas must be stricken, but contends we should still uphold that enhancement as to Eudave. (See generally People v. Cornejo, supra, 3 Cal.App.5th at p. 50.) We agree. A. Background
As previously described, defendants were charged in separate cases, which were then consolidated for trial. A consolidated information was never filed.
The information filed in Eudave's case alleged that in commission of attempted murder, Eudave personally and intentionally discharged a firearm, proximately causing great bodily injury, within the meaning of section 12022.53, subdivision (d). With respect to the attempted murder charge, Barajas's information alleged Barajas personally and intentionally discharged a firearm, proximately causing great bodily injury, within the meaning of section "12022.53(d)(e)(1)." With respect to the charge of permitting another to discharge a firearm from a vehicle, Barajas's information alleged Barajas personally and intentionally discharged a firearm, proximately causing great bodily injury, within the meaning of section 12022.53, subdivision (d).
For unknown reasons, despite the inclusion in both informations of enhancement allegations under subdivision (d) of section 12022.53, the trial court failed to instruct the jury with the language of CALCRIM No. 3149. Insofar as is pertinent, that instruction would have told jurors the People had to prove "[t]he defendant personally discharged a firearm" during the commission of the crime; "[t]he defendant intended to discharge the firearm"; and "[t]he defendant's act" caused great bodily injury to a person not an accomplice to the crime. Instead, the court only gave CALCRIM No. 1402. As given, the relevant portion of the instruction told jurors:
"If you find the defendants Eudave and/or Barajas guilty of the crimes charged in Counts 1 . . . and/or Barajas guilty of the crime charged in Count 2, and if you find that said defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, assist any criminal gang activity by gang members, you must then decide whether for each crime the People have proved the additional allegation that one of the principals personally and intentionally discharged a firearm during that crime and caused great bodily injury. . . .
"To prove this allegation, the People must prove that, one, someone who was a principal in the crime personally discharged a firearm during the commission of the crime; two, that person intended to discharge the firearm; three, that person's act caused great bodily injury to another person.
"A person is a principal in a crime if he directly commits the crime or if he aids and abets someone who commits the crime."
The jurors returned verdicts as to both defendants finding true, as to each count, the allegation a principal personally and intentionally discharged a firearm, causing great bodily injury, within the meaning of "section 12022.53(d) and (e)(1)." The trial court enhanced Barajas's sentence on count 1 by a consecutive term of 25 years to life in prison pursuant to "Penal Code Section 12022.53(d) and (e)," and on count 2 pursuant to "Penal Code Section 12022.53(d)." Eudave's sentence on count 1 was enhanced by a consecutive term of 25 years to life in prison pursuant to "Penal Code Section 12022.53(d) and (e)." B. Analysis
Section 12022.53, which applies to attempted murder (id., subd. (a)(1), (18)), provides, in pertinent part:
"(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . , to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.
"(e)(1) 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 . . . (d)."
As the appellate court explained in People v. Hernandez (2005) 134 Cal.App.4th 474, 480: "Section 12022.53, subdivisions (d) and (e)(1)(B) when read together require the trial court to impose a consecutive 25-years-to-life sentence enhancement when a defendant is convicted of [attempted] murder for the benefit of a criminal street gang and '[a]ny principal in the offense' 'personally and intentionally discharges a firearm and . . . causes [great bodily injury], to any person other than an accomplice.' (Italics added.) Under this sentencing regime an aider and abettor who is found guilty of [attempted] murder is subject to the 25 years to life enhancement even though he or she did not personally and intentionally discharge a firearm causing [great bodily injury] if the [attempted] murder was committed for the benefit of a criminal street gang and 'any principal' in the offense personally and intentionally discharged a firearm causing [great bodily injury]. In all other [attempted] killings subject to section 12022.53, subdivision (d) — that is, [attempted] 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 [great bodily injury]." (Fns. omitted.)
Subdivision (j) of section 12022.53 provides in part: "For the penalties in this section to apply, the existence of any fact required under subdivision . . . (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."
We directed the parties to file supplemental briefing on the effect, if any, of the prosecution's failure to plead, with respect to at least some of the counts, an allegation specifically referencing subdivision (e)(1) of section 12022.53. (See People v. Botello (2010) 183 Cal.App.4th 1014, 1022-1029.) Since we have concluded the gang findings are not supported by substantial evidence, we need no longer consider this issue.
Eudave contends that, despite evidence he was the actual shooter, his firearm enhancement must be stricken because the jury was never asked to find he personally discharged a firearm in commission of the attempted murder. To hold otherwise, he says, would violate Apprendi. Without directly addressing Eudave's Apprendi argument, the Attorney General says the jury's findings can only be construed as concluding Eudave personally discharged the firearm.
As authority for his position, the Attorney General relies in large part on the following quote from People v. Jones (1997) 58 Cal.App.4th 693, 710-711: " ' "A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court." [Citations.]' [Citations.] 'The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. [Citation.]' [Citation.] '[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice. [Citations.]' [Citation.]"
The problem in the present case is not a mere technical defect or clerical error in the verdict. (Cf., e.g., People v. Camacho (2009) 171 Cal.App.4th 1269, 1271; People v. Jones, supra, 58 Cal.App.4th at p. 711 & cases cited.) Rather, it is the absence of a jury instruction and finding on an element of a sentence enhancement, and as such constitutes federal constitutional error under Apprendi and its progeny. (See, e.g., People v. Selivanov (2016) 5 Cal.App.5th 726, 757-759, 761, petns. for review pending, petns. filed Dec. 27, 2016, time for grant or denial of review extended to Mar. 27, 2017; People v. Lobato (2003) 109 Cal.App.4th 762, 765-766; see also People v. Nunez and Satele (2013) 57 Cal.4th 1, 41-42.)
This does not necessarily mean Eudave's firearm enhancement must be stricken, however. As the California Supreme Court has explained, "Apprendi error — that is, error in failing to submit a punishment-increasing factual issue to the jury — is subject to harmless error analysis under the beyond-a-reasonable-doubt test of Chapman v. California[ (1967)] 386 U.S. [18, 24 (Chapman)]. [Citation.] Indeed, even when jury instructions completely omit an element of a crime, and therefore deprive the jury of the opportunity to make a finding on that element, a conviction may be upheld under Chapman where there is no 'record . . . evidence that could rationally lead to a contrary finding' with respect to that element. [Citations.]" (People v. Davis, supra, 36 Cal.4th at p. 564, quoting Neder v. United States (1999) 527 U.S. 1, 19 (Neder); accord, People v. Sengpadychith, supra, 26 Cal.4th at pp. 326-328 [Chapman harmless error standard applies to Apprendi error in failing to instruct on element of sentencing enhancement]; see also People v. Flood (1998) 18 Cal.4th 470, 504-505.)
The showing required by Neder, supra, 527 U.S. at pages 17 through 19, is "more substantial" than the usual Chapman assessment. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1165-1166.) "Neder instructs us to 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error — for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding — it should not find the error harmless.' [Citation.] On the other hand, instructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' [Citations.]" (People v. Mil (2012) 53 Cal.4th 400, 417.)
In the present case, there is no question that, had it been presented with the question, the jury would have found Eudave personally and intentionally discharged a firearm, proximately causing great bodily injury to Ruiz. (See People v. Selivanov, supra, 5 Cal.App.5th at p. 763.) From the outset, the prosecutor's theory — which was expressly conveyed to the jury — was that Barajas drove the car and Eudave was the shooter. Once the jury concluded defendants were the perpetrators, the issue of who fired the shots was not contested and the evidence was overwhelming. Moreover, jurors' conviction of Barajas for permitting another to discharge a firearm from a vehicle constituted an implied determination, in light of the record evidence, that Eudave was the actual shooter.
In his supplemental reply brief, Eudave asserts that Barajas's convictions cannot be relied upon as a substitute for the lack of a jury finding that Eudave personally discharged a firearm. Given the joint trial, we find it permissible to include the jury's findings with respect to Barajas as part of our harmless-error analysis.
Eudave directs our attention to People v. Salas (2001) 89 Cal.App.4th 1275 (Salas). In that case, the jury was never instructed that the defendant must personally use a firearm in order for an enhancement under section 186.22, subdivision (b)(5) or section 12022.53, subdivision (d) to be returned. Rather, the jury was instructed only that a "principal" had to use a firearm. (Salas, supra, at p. 1279.) As a result, the Court of Appeal concluded that since the defendant was never found to have personally used a firearm, the 15-year minimum parole eligibility term of section 186.22, subdivision (b)(5) was inapplicable. (Salas, supra, at p. 1281.) We find the opinion of little assistance to Eudave, since the reviewing court (1) found no unequivocal direct evidence as to the identity of the shooter, and (2) had no occasion to, and did not, undertake a harmless-error analysis.
Eudave also points to Salas, supra, 89 Cal.App.4th at pages 1282 through 1283, together with People v. Najera (1972) 8 Cal.3d 504, 509, 512, disapproved on another ground in People v. Wiley (1995) 9 Cal.4th 580, 588, as support for the proposition the prosecutor's failure to ask the jury to make a specific finding as to whether Eudave personally discharged the firearm, constitutes a waiver of the issue. We find the cases distinguishable in light of the section 12022.53, subdivision (d) enhancement alleged in Eudave's information, the evidence at trial, and the jury's verdicts. (See People v. Mancebo (2002) 27 Cal.4th 735, 746.)
DISPOSITION
As to Eudave, the Penal Code section 186.22, subdivision (b) finding is stricken. As so modified, the judgment is affirmed.
As to Barajas, the Penal Code section 186.22, subdivision (b) findings and Penal Code section 12022.53 enhancements are stricken. As so modified, the judgment is affirmed.
Both matters are remanded for resentencing, at which time the trial court is directed to correct the clerical error in Eudave's amended abstract of judgment, box 4 of which currently shows him sentenced to life in prison without the possibility of parole on count 1.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
PEÑA, J.