Opinion
B226031 B227052
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. HERSON GAYTAN et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. RONALD RICHARD PEREZ, Defendant and Appellant.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant Herson Gaytan. Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant Angel Arredondo. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Ronald Richard Perez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Lance E. Winters, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA350813)
(Los Angeles County Super. Ct. No. BA350813)
APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed as modified.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant Herson Gaytan.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant Angel Arredondo.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Ronald Richard Perez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellants Angel Arredondo, Herson Gaytan, and Ronald Richard Perez of first degree murder in a joint trial. The jury also found gang and firearm enhancements to be true. We ordered that all three appeals should be considered concurrently. Between the three appellants, they contend that: the court committed several instructional and evidentiary errors; insufficient evidence supported the gang enhancement; the enhancement statutes are unconstitutional for various reasons; and the abstracts of judgment erroneously include a 15-year parole eligibility term as punishment for the gang enhancement. We agree that the abstracts of judgment must be amended to delete the 15-year parole eligibility term, but in all other respects, we affirm.
For the most part, each appellant joined in the arguments made by his codefendants in their separate briefs. In the few instances when less than all three appellants made or joined in an argument, we specify the individual proponents of the argument by name.
STATEMENT OF FACTS
1. The Shooting
On December 27, 2008, at approximately 4:00 p.m., Joseph Mosesean was driving a tow truck and was stopped at an intersection when he witnessed the shooting of Jimmy Pineda. Mosesean was on Beverly Boulevard at the intersection of Beverly and Virgil Avenue. A white Volvo four-door station wagon was in front of him.
The driver's window of the Volvo was rolled down. To the left of the Volvo in the next lane was a black Nissan Altima. Mosesean saw the Altima's passenger side front window roll down halfway. Mosesean caught glimpses of the Volvo's driver in the mirror, and it appeared the occupants of the two vehicles were talking to one another. A minute later, Mosesean saw a hand stick out of the rear window of the driver side of the Volvo and begin shooting at the Altima. The shooter's gun appeared to be a semiautomatic handgun and was in the shooter's left hand. Mosesean heard approximately six shots in rapid succession.
After the shooting, the Volvo took off. Mosesean called the dispatcher from the radio in his tow truck and reported that he had witnessed a shooting. He also followed the Volvo as it entered the 101 Freeway heading south and broadcast the Volvo's location to dispatch as he was following it. The Volvo drove to the next exit, Silverlake, and exited the freeway. It crossed the street and then immediately entered the freeway again at Silverlake. The Volvo went one more exit to Benton and exited the freeway yet again. At the intersection of London and Rampart, the car stopped and a Hispanic man in a green jacket, Gaytan, exited the car from the front passenger door, ran down London, and turned on Coronado. Officers stopped Gaytan on Coronado and arrested him. A black glove was found on Gaytan's person during a search incident to his arrest. On London, approximately two houses from the corner of London and Coronado, a firearms detection dog located two semiautomatic handguns hidden behind a trash can in front of a house a .40-caliber Glock and a nine-millimeter Makarov, which was also capable of firing .380-caliber ammunition.
The Volvo continued to drive after Gaytan exited and stopped again on the corner of Plata and Rampart, and two men ran out of the car. One man, Arredondo, exited from the driver's door and ran down Plata. The other man, Perez, exited from the passenger side of the car and ran down Plata in the same direction as Arredondo.
Perez made his way to an apartment building on Plata and went inside. Approximately 30 seconds later, he exited the building and ran down Plata to yet another apartment building, where he ran underneath a stairwell in the building's courtyard. Arredondo went down Plata to this same apartment building and underneath the same stairwell. Police officers set up a perimeter around the building and around the whole block, and the building was evacuated. Approximately an hour after the officers had evacuated the building, Arredondo and Perez exited the front of the building with their hands raised, and officers detained them.
The victim, Pineda, was found shot in the driver's seat of the black Nissan Altima. The passenger side of the Altima had 13 bullet holes in it, and a passenger side window of the Altima was shattered. Pineda died of a single gunshot wound to the torso. There was no evidence of any firearms or ammunition inside the Altima. There was also no evidence that any firearms had been fired at the Volvo.
2. Forensic Evidence
Officers collected two expended shell casings at the scene of the shooting and eight more expended casings from inside the Volvo, around the rear passenger seats. Officers also collected three bullets or bullet fragments at the scene. Ten bullets or bullet fragments were collected from inside the Altima.
A criminalist determined that four of the expended casings found in the Volvo were fired from the nine-millimeter Makarov found at the house on London. He also determined that one bullet found in the Altima was fired from the Makarov. The remaining casings found in the Volvo and at the scene were fired from the .40-caliber Glock found at the house on London. As to the remaining bullets or bullet fragments, the criminalist could not match them to the Glock or Makarov, but he was also unable to exclude them from having been fired from one of the guns.
The hands of all three appellants were tested for gunshot residue. Gunshot residue was detected only on Arredondo's left hand. A number of factors could prevent a shooter from testing positive for gunshot residue, including the passage of time, moisture on the hands, and wearing a glove. Gunshot residue can also be found on the hands of someone who did not fire the gun but was near the gun when it was fired, perhaps as far as six feet away, or who handled the gun or expended casings after it was fired.
The two guns were swabbed for DNA and a buccal swab was taken from each appellant. A forensic scientist found the DNA of at least two individuals on the Makarov, including at least one male. She could neither include nor exclude the three appellants as contributors of the DNA on the Makarov. She found the DNA of at least three individuals on the Glock, including one major male contributor -- Perez.
Arredondo's thumb print was found on the Volvo's rearview mirror.
3. Gang Evidence
Officer Jason Abner and Officer Frank Garcia both testified that they had multiple contacts with each appellant prior to the date of the incident, and that each had admitted their membership in the Temple Street gang. Officer Garcia knew that Gaytan's moniker was Little Shadow, Arredondo's moniker was Kidder, and Perez's moniker was Bullet or Baby Bullet.
Officer Hugo Ayon was the prosecution's gang expert on the Temple Street gang. The primary activities of the Temple Street gang include vandalism, burglary, robberies, attempted murders, and murders. He testified that common tattoos among Temple Street gang members include "TST," an abbreviation for Temple Street, "1923," the year in which the gang was founded, and the word "Temple." It was Officer Ayon's opinion that Gaytan, Arredondo, and Perez are all Temple Street gang members, based on his numerous prior contacts with each within Temple Street's territory, their admissions of their gang membership, and their Temple Street tattoos.
Arredondo has the word "Temple" tattooed on the back of his head and his left wrist, the letter "T" tattooed on his chin, and the words "Toking Chronic Always" tattooed on his collar bone, representing a tagging crew that had been absorbed by the Temple Street gang. Gaytan has "1923" tattooed above his right eyebrow, "Temple" tattooed on his right forearm, "Temple Street" tattooed on the left side of his head, and "PWLA" tattooed above his left eyebrow, representing the Peewee Locos clique within the Temple Street gang. Perez has "TST" tattooed on his stomach, "Temple Street" tattooed on his neck, and "T" tattooed on his leg. Perez also has a tattoo that reads "Wild Wild West," possibly referring to a clique within the gang called the Wild Bunch, and a tattoo that reads "Rest in Peace Little Casper," referring to a Temple Street gang member who committed suicide.
Officer Ayon testified that the 18th Street gang is one of the major gangs in Los Angeles. Temple Street and 18th Street are rival gangs. Both gangs claim territory very near to the scene of the shooting. According to Officer Ayon, if rival gang members bumped into each other, a confrontation would occur, usually a violent one. The gang members would see such a confrontation as an opportunity to eliminate a rival and enhance the reputation of their gangs.
Common symbols for the 18th Street gang include the number "18," the number "666," in which the three digits add up to eighteen, "BEST," an acronym for Barrio Eighteenth Street, the words "Big One-Eight," any variation on the number 18, and "XV3," in which the "X" and "V" are roman numerals. The victim, Pineda, had a "1" and "8" tattooed on his stomach and an "8" tattooed on his left shoulder. Officers found in Pineda's car several compact discs (CD's) with 18th Street gang symbols on them, including CD's marked with "XV3," "666," "Big One-Eight," "18th Street," and "BEST." It was Officer Ayon's opinion that Pineda was likely a member of the 18th Street gang, and at least an associate of the gang, based on his tattoos and the CD's found in his car.
The prosecutor posed a hypothetical to Officer Ayon based on the facts in the case, and Officer Ayon opined that the shooting was committed for the benefit of the Temple Street gang. His opinion was based on the notion that gangs use violence to create fear and garner respect, thereby enhancing the reputation of the gang and the ability of the gang members to commit further crimes without worry that community members will report them to the police. Killing a rival gang member would be the ultimate crime for the benefit of the gang because it demonstrates that one is not afraid to use deadly violence against rivals. Officer Ayon further opined that gang members would recognize tattoos of their rival gangs. Thus, a rival of Temple Street who saw a "T" tattooed on the chin of another would know that the person with the "T" tattoo was a Temple Street member.
PROCEDURAL HISTORY
The information charged appellants with one count of murder. It was further alleged that the crime was committed for the benefit of a gang under Penal Code section 186.22, subdivision (b), and that a principal had used a firearm under three different subdivisions of section 12022.53. The jury found each appellant guilty of first degree murder, found the gang enhancement to be true as to each, and found the three firearm enhancements to be true as to each. The trial court sentenced each appellant to 50 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
STANDARD OF REVIEW
We review a trial court's ruling on matters regarding discovery for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299.) Likewise, we review a trial court's decision to admit expert testimony for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.)
We apply the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.) Similarly, we review the legal adequacy of a jury instruction de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
The constitutionality of a statute is a question of law also reviewed de novo. (People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445.)
When a defendant claims on appeal that a gang enhancement was based on insufficient evidence, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, 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; see also People v. Augborne (2002) 104 Cal.App.4th 362, 371 [applying substantial evidence test to gang findings].) "[I]t 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 on which that determination depends." (People v. Jones (1990) 51 Cal.3d 294, 314.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
DISCUSSION
1. Disclosure of Gang Expert's Materials
Appellants contend that the trial court committed reversible error when it refused to disclose certain materials in possession of the gang expert, which they assert he relied on in reaching his opinions. Appellants contend that this error violated both section 1054.1 and the federal Constitution, and that defense counsel was ineffective for failing to object on federal constitutional grounds. We are not persuaded that the trial court committed reversible error.
During cross-examination, defense counsel asked the gang expert, Officer Ayon, about a binder the officer had in front of him on the stand:
"Q [Defense Counsel:] You have a binder in front of you; correct?
"A [Officer Ayon:] Yes.
"Q [Defense Counsel:] Is that a document you reviewed before you gave your opinion in this case?
"A [Officer Ayon:] Yes.
"Q [Defense Counsel:] Are there materials in there from which you've based your opinion?
"Q [Officer Ayon:] They're notes that I took, yes."
Defense counsel then made a request for the binder under section 771, subdivision (a) of the Evidence Code, which requires the production of writings that witnesses use to refresh their recollections. Out of the presence of the jury, the court asked Officer Ayon what was in the binder. He stated: "Generally speaking, sir, just notes that I've prepared, a couple -- in the past couple days, preparing for testimony today, notes on past testimony I've done on previous cases, some training material I've gotten over the years." The court decided to review Officer Ayon's binder and asked the officer to participate in an in camera hearing with the court the following day. After the in camera hearing and back in front of counsel, the court ruled that the documents in the binder were not discoverable, with the exception of two pages of bylaws for the Temple Street gang, which the court copied and gave to defense counsel. In so doing, the court described a number of documents that it was not disclosing to counsel, including outlines of questions that a prosecutor would use to question a gang expert, notes written by the officer that appeared "to be something that someone would write out to prepare to testify," and documents relating to predicate offenses in the case, which had already been turned over to the defense and marked in the case. We have reviewed the transcript of the in camera hearing with Officer Ayon as well as the entire contents of the officer's binder, both of which were transmitted to this court under seal.
The prosecution's statutory duty to disclose materials to a defendant is codified in section 1054.1. Subdivision (f) of that section requires the prosecution to disclose "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case . . . ." An expert's notes relating to his testimony in a case generally constitute relevant "'reports or statements of experts made in connection with the case.'" (People v. Lamb (2006) 136 Cal.App.4th 575, 580 [accident reconstruction expert was required to produce his notes regarding interviews of witnesses, calculations he had done, and his inspection of vehicles involved in the accident]; but see Hines v. Superior Court (1993) 20 Cal.App.4th 1818, 1823 [requiring production of expert's notes reflecting "factual determinations of the expert from observations made during an examination," but not requiring expert to produce "notes to himself which reflect his own opinions or interim conclusions"].)
The notes that Officer Ayon wrote regarding his opinion in this case should have been produced pursuant to section 1054.1, but the error was not prejudicial. A violation of section 1054.1 is subject to the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Gaines (2009) 46 Cal.4th 172, 181; People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Thus, an error was prejudicial only if it was reasonably probable that the jury would have reached a different verdict had the discovery been produced. (Zambrano, supra, at p. 1135, fn. 13; People v. Shipp (1963) 59 Cal.2d 845, 849.) We have reviewed the officer's notes and find that their disclosure would not have resulted in a different outcome. The potential harm in failing to disclose evidence is that the defense may be blindsided by evidence it should have had well before trial and thus may be unable to prepare for trial properly. But here, Officer Ayon wrote the notes only "in the past couple days" before trial in preparation for his testimony, so the notes would not have been available well in advance of trial. Moreover, much of the notes were duplicative of other discovery that was already available to the defense. One and a half pages of notes merely summarize facts of the case, such as appellants' names, gang monikers, and tattoos, as well as the names of the individuals whose offenses were used as predicate offenses and the dates of those predicates. Another half page of notes recorded the officer's thoughts on the role of violence in gangs and how it is used to generate fear and respect in the community. The officer's notes are all consistent with his testimony in the trial court and thus could not have been used to impeach him. Given all of the above, the failure to disclose the notes was not prejudicial.
Other materials in the officer's binder, such as the direct examination outlines and the predicate materials described by the trial court, were not "reports or statements" by the expert and therefore were not discoverable under section 1054.1. The question remains whether the prosecution was under a federal constitutional duty to produce the other materials, as appellants contend.
We hold that the constitution did not require production of the officer's materials. The prosecution has a duty under the Fourteenth Amendment's due process clause to disclose evidence that is both favorable to the defendant and material on either guilt or punishment. (In re Sassounian (1995) 9 Cal.4th 535, 543; United States v. Bagley (1985) 473 U.S. 667, 674.) "Evidence is 'favorable' if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. [Citation.] [¶] Evidence is 'material' 'only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different.' [Citation.]" (Sassounian, supra, at p. 544.) "Reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. (Ibid.)
To the extent that Officer Ayon had notes in his binder relating to other cases and other defendants, these notes were not material to appellants' guilt or punishment. The generalized outlines of sample direct examination questions prepared by prosecutors were neither favorable to the defense nor material. The documents relating to predicate offenses used by the prosecutor to show a pattern of criminal gang activity were not favorable to the defense, and in any case, at least some of these materials were produced and marked at trial. Having reviewed the binder and the record, we fail to see how the documents in the binder could have led to a different result.
We are also unpersuaded by appellants' claim that counsel's failure to object on constitutional grounds constituted ineffective assistance of counsel. To prevail on such a claim, appellants must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that counsel's deficient performance prejudiced the defense, i.e., that counsel's errors were so serious as to deprive the defendant of a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 687688.) The failure to object on constitutional grounds did not prejudice the defense because, as just discussed, the disclosure of the binder's contents would not have changed the outcome of the trial.
2. The Hypothetical Posed to the Gang Expert and His Testimony in Response
Appellants Perez and Gaytan (but not Arredondo) claim that we must reverse the jury's gang findings because (1) the gang expert improperly opined about appellants' motivation/intent in response to a hypothetical question, and (2) the hypothetical contained critical assumed facts not within the range of evidence. They further contend that the firearm enhancement findings were based on their liability as aiders/abettors in an offense committed for the benefit of a gang, and because the expert's opinion prejudicially affected the findings, the firearm findings must also be reversed (§ 12022.53, subd. (e)(1)). They additionally contend that the gang expert's improper opinion testimony compromised their right to a reliable determination of the first degree murder charge because the lynchpin of the prosecution's first degree murder theory was the gang evidence. We disagree on all claims.
The gang enhancement, section 186.22, subdivision (b)(1), requires that defendants have committed a felony "for the benefit of, at the direction of, or in association with any criminal street gang," with "the specific intent to promote, further, or assist in any criminal conduct by gang members." It is established that expert testimony is admissible on whether and how a crime was committed to benefit a gang. (People v. Williams (2009) 170 Cal.App.4th 587, 621; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) Moreover, "[a] gang expert may render an opinion that facts assumed to be true in a hypothetical question present a 'classic' example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence." (People v. Gonzalez, supra, at p. 1551, fn. 4; see also People v. Gonzalez (2006) 38 Cal.4th 932, 946 ["'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth"'"].)
Here, the prosecutor posed a hypothetical question to Officer Ayon that closely mirrored the facts of the case. After setting up the facts of the hypothetical, the prosecutor asked the officer to opine on whether the killing of the victim in the hypothetical was committed for the benefit of, in association with, or at the direction of the Temple Street gang. Officer Ayon opined that the hypothetical killing was committed to benefit the gang and explained his basis for that opinion. The prosecutor never asked about the specific intent of any appellant or any individuals in the hypothetical, nor did he ask about any person's knowledge. In response, the expert did not testify about the specific intent or knowledge of any individuals, hypothetical or otherwise. Appellants' reliance on People v. Killebrew (2002) 103 Cal.App.4th 644, 658, in which the court held that a gang expert may not testify to a defendant's subjective knowledge or intent, is thus misplaced. The trial court did not abuse its discretion in permitting the expert to opine that the hypothetical crime was committed for the benefit of the gang. (People v. Gonzalez, supra, 38 Cal.4th at p. 947, fn. 3 ["Obviously, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons"].)
Further, the facts in the hypothetical were within the range of evidence. A hypothetical statement of facts posed to an expert may be based on any evidence properly admitted at trial, including the assumption of any facts "'"within the limits of the evidence."'" (People v. Boyette (2002) 29 Cal.4th 381, 449.) Appellants contend that the prosecutor's hypothetical referenced the visibility of the gang tattoos on the victim's stomach, when there was no evidence that the persons in the car next to him could see the victim's gang tattoos. In fact, the prosecutor did not state that the victim's gang tattoos were visible to the occupants of the adjacent car. He stated as follows:
"Assume that the three Temple Street gang members have two firearms, loaded firearms, with them; that they pull up to an intersection at a stoplight, and next to them is an individual in a vehicle with 18 tattooed on his stomach and with the CD's that you see in People's 54 located within his vehicle.
Assume that, while they're stopped at the stoplight, the front passenger window of the black vehicle with the -- containing the person with the 18 on his stomach, that front window rolls down approximately halfway. . . ."
The hypothetical did not ask the expert to assume that the "18" tattoo was visible to onlookers. The hypothetical posited only that the victim had an "18" tattoo, which was rooted in actual evidence (an exhibit depicting the victim's stomach tattoo). There was no error in permitting the expert to assume the existence of the victim's tattoo.
In light of our determination that the court did not err in admitting Officer Ayon's testimony, we need not address appellants' further arguments that the alleged error was prejudicial, either as to the gang findings, the firearm findings, or the first degree murder conviction.
3. Sufficiency of the Evidence to Support the Gang Enhancement
In a related argument, appellants contend that the gang enhancement must be reversed for insufficient supporting evidence. They argue that the testimony of the gang expert that the crime was for the benefit of the Temple Street gang because it created an atmosphere of fear in the community, improved the status of the shooters within the gang, and eliminated a rival gang member was so speculative and general that it could apply to any similar shooting. We hold that substantial evidence supported the gang enhancement.
As noted above, section 186.22, subdivision (b)(1), has two prongs: (1) a felony committed "for the benefit of, at the direction of, or in association with any criminal street gang," and (2) "specific intent to promote, further, or assist in any criminal conduct by gang members."
First, the expert's testimony that the crime was committed for the benefit of the gang had adequate foundation and was not speculative. Appellants admitted their membership in the Temple Street gang. The evidence demonstrated that the victim was a member of the Temple Street rival, 18th Street. The crime occurred in an area near the territories of both gangs. According to Officer Ayon, if the rivals bumped into each other in this area, the ensuing confrontation would provide an opportunity to enhance the gangs' reputation by eliminating rivals, which is the ultimate crime on behalf of one's gang. While there was no evidence that appellants saw the victim's gang tattoos, they each had numerous gang tattoos, including those on their face, head, or neck that would have been visible. The evidence established that the victim rolled down his car window and there appeared to be an exchange of words right before the shooting. The jury could have reasonably inferred from these facts that the victim and appellants recognized each other as rivals. These facts, along with Officer Ayon's testimony regarding the killing of a rival, were sufficient to support the first prong of the gang enhancement.
The record also discloses substantial evidence to support the specific intent prong. Commission of a crime in concert with known gang members is substantial evidence supporting the inference that a defendant acted with the "'specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Villalobos (2006) 145 Cal.App.4th 310, 322; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [sufficient evidence of specific intent prong when evidence that defendant intended to commit robberies and intended to commit them in association with two others, who he knew to be members of his gang].) The jury could have reasonably concluded that each appellant knew the others were gang members because they all admitted membership in the Temple Street gang and had visible gang tattoos identifying them as members. Furthermore, the jury could have reasonably concluded that they all acted in concert to commit the crime, with Arredondo acting at least as the driver of the Volvo and Perez and Gaytan acting as shooters. Arredondo fled from the driver's door of the car and his thumb print was found on the rearview mirror, indicating he was the driver, and he had gun residue on him, indicating he may have also been a shooter. Gaytan fled from the front passenger seat, both guns connected to the shooting were found hidden along the path he took when he ran from the car, and he was found with a single black glove on him, indicating he could have been a shooter. Perez's DNA was found on one of the two guns connected to the shooting (the Glock), indicating he also could have been a shooter. The evidence was sufficient to support appellants' specific intent to promote, further, or assist a crime by gang members.
4. Jury Instruction Issues
Appellants contend that the trial court erred in refusing to instruct the jury on imperfect self-defense, a lesser included offense, and that the court's instruction on aiding and abetting erroneously included language that principals are "equally guilty." We disagree.
A. Imperfect Self-defense
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis).) "To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." (Ibid.) "Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction." (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Imperfect self-defense is the killing of another in the actual but unreasonable belief that one is in imminent danger of death or great bodily injury. (In re Christian S. (1994) 7 Cal.4th 768, 773.) For imperfect self-defense to apply, the defendant must also have honestly believed that lethal force was necessary. (People v. Uriarte (1990) 223 Cal.App.3d 192, 197.) A person who intentionally kills in imperfect self-defense lacks malice and is guilty only of voluntary manslaughter, not murder. (People v. Blakeley (2000) 23 Cal.4th 82, 88.) Thus, a killing in imperfect self-defense is a lesser offense included in the crime of murder. (People v. Barton (1995) 12 Cal.4th 186, 200-201.)
Appellants assert that substantial evidence supported inferences that the victim was the initial aggressor and that appellants actually believed they were in imminent danger of great bodily harm or death. The record belies their assertion. Even if we assume that the victim rolled down his window and verbally confronted appellants first because he saw their rival gang tattoos, there was no evidence that appellants subjectively believed (1) they were in imminent danger of great harm or death, and (2) lethal force was necessary. None of the appellants testified that they felt an imminent threat or believed they needed to use lethal force against the victim. There was no testimony that appellants appeared to be afraid. None of the witnesses saw the victim with a weapon, and there was no evidence that he had a weapon in his car. There was no evidence of what the victim might have said to appellants, so the jury had no way of knowing whether he issued a verbal threat to use deadly force. We conclude that the evidence to support imperfect self-defense was insubstantial, and the trial court did not err in refusing to instruct on the issue.
B. Aiding and Abetting
Each of the appellants had a theory as to why he was not a shooter. They assert that they were found guilty of first degree murder as aiders and abettors because of an instructional error attributable to CALJIC No. 3.00. The trial court instructed the jury with CALJIC No. 3.00 as follows: "Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime." According to appellants, CALJIC No. 3.00 misled the jury into believing that they, as aiders and abettors, had to be found "equally guilty" of first degree murder if the jury believed the actual perpetrator committed first degree murder --even if appellants did not harbor the same mens rea as the actual perpetrator. Appellants assert that this instructional error was prejudicial and compels reversal of their convictions. We are not so persuaded.
The California Supreme Court has held that a jury may convict an aider and abettor of a greater offense than the actual perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1120 ["Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea. If the mens rea of the aider and abettor is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator"].) In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165 (Samaniego), Division Two of this district took the Supreme Court's reasoning a step further and concluded that an aider and abettor may also be convicted of a lesser offense than the actual perpetrator. The Samaniego court found that CALCRIM No. 400, while generally a correct statement of the law, was misleading in that case insofar as it suggested an aider and abettor must be found "equally guilty" of the same crime as the perpetrator. (Samaniego, at p. 1165.)
Similarly, in People v. Nero (2010) 181 Cal.App.4th 504, 518, Division Three of this District found CALJIC No. 3.00 misleading under the circumstances of the case, insofar as it also suggested that an aider and abettor must be found "equally guilty" of the same crime as the perpetrator.
Preliminarily, we note that appellants have forfeited the issue on appeal. A party may not complain on appeal that an instruction correct in law and responsive to the evidence was flawed unless the party requested appropriate clarifying or amplifying language. (Samaniego, supra, 172 Cal.App.4th at p. 1163.) But even if appellants had preserved the issue for appeal, we would nonetheless find that any error was not prejudicial. We examine the claimed error under the standard of Chapman v. California (1967) 386 U.S. 18, 24, to the extent that the error affected appellants' constitutionally guaranteed trial rights. Under Chapman, we must be convinced beyond a reasonable doubt that the jury's verdict would have been the same absent the instructional error. (Ibid; Samaniego, at p. 1165.)
Because we reach the merits of the issue, we need not address appellants' alternative argument that trial counsel's failure to request a clarifying instruction constituted ineffective assistance of counsel.
We hold that any error in connection with CALJIC No. 3.00 was harmless beyond a reasonable doubt because the jurors necessarily resolved the issue of appellants' mental state under other properly given instructions. (See Lewis, supra, 25 Cal.4th at p. 646.) The trial court did not instruct the jury on aiding and abetting with CALJIC No. 3.00 alone. The court's additional instructions correctly and specifically described the mental state necessary to find appellants guilty under an aiding and abetting theory. The court instructed with CALJIC No. 3.01, explaining that a person aids and abets a crime when "[w]ith knowledge of the unlawful purpose of the perpetrator," and "[w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime," the person "[b]y act or advice aids, promotes, encourages or instigates the commission of the crime." The court also instructed with: CALJIC No. 8.10, explaining that murder was a killing accomplished with "malice aforethought"; CALJIC No. 8.11, further defining the mental state of malice; CALJIC No. 8.20, defining "willful," "deliberate," and "premeditated"; and CALJIC No. 8.25.1, setting forth the prosecution's alternate theory of first degree driveby murder and the requisite mental state (intentionally discharging a firearm at another from a car while specifically intending to inflict death). The court also instructed the jury on second degree murder and instructed them that they "must decide separately whether each of the defendants is guilty or not guilty."
After being so instructed, the jury convicted appellants of first degree murder and necessarily found that appellants acted, either of their own accord or in the aid and assistance of another, willfully and with the intent to kill. The totality of the court's instructions ensured that the jury found the requisite mental state to convict appellants of first degree murder.
Gaytan contends that the cumulative effect of the trial court's instructional errors requires reversal of his conviction. But there are no errors to accumulate here. As discussed above, the court did not err with respect to imperfect self-defense, and any lone error with respect to the aiding and abetting instruction was harmless.
5. Section 12022.53 Firearm Enhancement
The information alleged that a principal personally and intentionally discharged a firearm, which caused great bodily injury and death within the meaning of section 12022.53, subdivision (d). The jury found this allegation to be true as to all three appellants. To preserve the claim for subsequent review, appellants contend the imposition of this enhancement violates California's rule against multiple convictions and principles of double jeopardy. But appellants correctly acknowledge that the California Supreme Court has rejected double jeopardy and multiple-conviction challenges to this enhancement. (People v. Izaguirre (2007) 42 Cal.4th 126, 128, 134; People v. Sloan (2007) 42 Cal.4th 110, 120-123.) Accordingly, we reject appellants' challenges for the reasons expressed in Izaguirre and Sloan, and decline their invitation to record a disagreement with those authorities.
Appellants also invite us to reject certain United States Supreme Court authority to hold that the firearm enhancement constitutes multiple punishments barred by the double jeopardy clause. They correctly recognize, again, that a higher court than ours has spoken against them on the issue. (Missouri v. Hunter (1983) 459 U.S. 359, 368-369 (Hunter) [a legislature may specifically authorize cumulative punishment under multiple statutes, even when those statutes proscribe the same conduct, without offending principles of double jeopardy].) But they contend that the relevant authority, Hunter, has been undermined by Apprendi v. New Jersey (2000) 530 U.S. 466 and Sattazahn v. Pennsylvania (2003) 537 U.S. 101. They make this contention in a conclusory manner and fail to explain why or how Apprendi and Sattazahn overrule or undermine Hunter. For the reasons expressed in Hunter, we also reject appellants' multiple-punishments argument. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court"].)
6. 15-year Parole Eligibility Term
Gaytan contends that his abstract of judgment must be corrected to strike the reference to a minimum parole eligibility term of 15 years. The Attorney General agrees, as do we. Because the same error was made on the abstracts of judgment for Perez and Arredondo, they should be corrected also.
The trial court sentenced all three appellants to 50 years to life in state prison, consisting of 25 years to life for first degree murder and a consecutive 25 years to life on the firearm enhancement (§ 12022.53, subds. (d) & (e)(1)). The jury did not find any appellant in particular had personally used a firearm, but under subdivision (e)(1) of section 12022.53, when gang members commit a crime for the benefit of their gang, all principals to the crime may be punished for any principal's personal use of a firearm. As to the remaining two firearm enhancements, the court stayed punishment on those. The court then stated that additional punishment for the section 186.22 gang enhancement would not be imposed. However, appellants' abstracts of judgment appear to impose such punishment in the form of a 15-year minimum parole eligibility term. Under "Other orders," all three abstracts state: "The defendant is not eligible for parole for a minimum of 15 years."
The gang statute states in pertinent part: "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22, subd. (b)(5).)
For the reasons this court expressed in People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1424-1427, a defendant who is not found to have personally used a firearm, but is nevertheless punished for a principal's use of a firearm in a crime committed for the benefit of a gang, should not also be punished under the gang statute. In Gonzalez, we concluded that, under those circumstances, the trial court should not have imposed the 15-year parole eligibility term as punishment for the gang enhancement when it had already imposed a 25-year prison term as punishment for the firearm enhancement. (Id. at p. 1427.) This case presents the same situation. The 15-year parole eligibility term should be stricken from appellants' abstracts of judgment.
DISPOSITION
The abstract of judgment for each appellant shall be amended under "Other orders" at paragraph 11 to delete the 15-year minimum parole eligibility term. The trial court shall forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgments are affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.