Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA042958, Susan Speer, Judge.
California Appellate Project, Jonathan B. Steiner, Executive Director, and Maria Morrison, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEDURAL HISTORY
On June 26, 2006, an amended information was filed against appellant Rafael Gonzalez, Rodolfo Leon, and Jonathan Hernandez, charging them in count 1 with the murder of Luis Espinoza Ochoa on April 7, 2003 (Pen. Code, § 187, subd. (a)), and in count 2 with conspiracy to commit the murder of Ochoa (Pen. Code, § 182, subd. (a)(1)). Under both counts, the information alleged that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that a principal had used a firearm that had caused great bodily injury and death (§12022.53, subds. (b), (c), (d), (e)(1)), and that appellant had personally used a firearm that had caused great bodily injury and death (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), (d)). In addition, the information alleged that appellant had one felony conviction (§ 667, sub. (a)(1)) and had served a prior prison term (§ 667.5, subd. (b)). The trial court subsequently severed appellant’s trial from that of his codefendants.
All further statutory references are to the Penal Code, unless otherwise indicated.
Leon and Hernandez are not parties to this appeal.
Appellant pleaded not guilty and denied the special allegations. On the eve of trial, the trial court dismissed count 2 at the prosecutor’s request (§ 1385). On August 25, 2006, the jury found appellant guilty as charged, and also found the gun use and gang allegations to be true. Following a bench trial, the trial court found the prior conviction and prison term allegations to be true, and sentenced appellant to a total term of 80 years to life in state prison.
FACTS
A. Prosecution Evidence
Appellant, Leon, and Hernandez belonged to the Radford Street gang. Their gang nicknames were, respectively, “Blanco,” “Little Shadow,” and “Lil’ Player.” In April 2003, they lived close to one another near the intersection of Laurel Canyon Boulevard and Vanowen Street, in the area claimed by the Radford Street gang. Ochoa, who did not belong to any gang, resided near a laundromat not far from this intersection. The laundromat was a hangout for Radford Street gang members.
Los Angeles Police Department (LAPD) officer Claude Guiral, a gang expert, testified that the members of the Radford Street gang use common signs and symbols, and engage in murders, attempted murders, assaults, robberies, narcotics sales, burglary, car theft, and graffiti. There were more than 80 members in April 2003.
The parties stipulated that the Radford Street gang had engaged in a “pattern of criminal gang activity” required to establish that it constituted a “criminal street gang” (§ 186.22, subd. (f)).
According to Guiral, respect is a cornerstone of gang culture. An unchallenged act of disrespect to a gang member creates the perception that the gang member and his gang are weak, and threatens the gang’s control over its turf. Accordingly, gang members retaliate for acts of disrespect. Moreover, to enhance their prestige, gang members often boast about their crimes to friends and fellow members.
Leon’s ex-girlfriend, Roxana Cruz, testified as follows: On April 1, 2003, she and Leon were in a laundromat located near the intersection of Laurel Canyon and Vanowen. Ochoa, whom Cruz had known for several years, entered the laundromat and threaten to kill Leon unless he left. Ochoa appeared to have been drinking. Leon reported the incident to police officers, and Cruz and Leon returned to their residence, which was nearby. Several days later, Cruz and Leon were driving together when Cruz saw Ochoa walking along Vanowen toward Laurel Canyon. When Leon asked “if that was him,” Cruz answered that she did not know. After they arrived at their residence, Leon drove away alone, and returned 10 to 15 minutes later.
The parties stipulated that Leon reported an alleged criminal threat by Ochoa on April 1, 2003.
Jenny Valdez, appellant’s ex-girlfriend, testified that she and appellant lived together in April 2003. On the night Ochoa threatened Leon, Leon and Cruz drove to appellant’s residence, and Leon told appellant about the incident. Leon said, “Hey, fool, do me a favor, let’s go back,” but appellant remained at his residence. Leon came to appellant’s residence several times during the following week, stood outside, and called out appellant’s nickname. Appellant did not respond to Leon. About a week after the incident in the laundromat, Leon arrived at appellant’s residence, and they left in Leon’s car, which also contained Hernandez. As appellant left, he said to Valdez, “‘I’m just going to back him up. You know he’s been looking for me. I’m just -- you know, I’m just gonna be there. He sas he’s gonna get down with this guy one on one and I just don’t want anybody to jump in.’” Appellant, Leon, and Hernandez returned after approximately 15 minutes. Shortly thereafter, Valdez learned that there had been a shooting nearby on Vanowen.
Ramiro Miranda, Ochoa’s roommate, testified that at approximately 7:40 p.m. on April 7, 2003, he and Ochoa left the apartment, and walked to a nearby liquor store. After Ochoa bought beer, Miranda boarded a bus, and Ochoa began walking back to his apartment.
At approximately 8:40 p.m. on the same date, LAPD officers responded to a radio call about a shooting at Vanowen and Agnes streets, close to the intersection of Vanowen and Laurel Canyon Boulevard. They found Ochoa lying on the street not far from a 7-11 store. Ochoa had died of gunshot wounds to the head and chest. His body also displayed a skull facture and other injuries not caused by a fall to the pavement.
No bullets or bullet casings were recovered from Ochoa’s body or the crime scene, and investigating officers never located eyewitnesses to the shooting.
Ana Gonzalez, appellant’s sister, testified that in April 2003, she was 14 years old and lived in appellant’s apartment building. According to Gonzalez, she saw Leon arrive at the building by car, and heard him scream for appellant. Appellant left the building and walked to Leon’s car, which was also approached by Hernandez. She did not observe where appellant went. Later, she saw emergency vehicles.
On direct examination, Gonzalez testified that two days after the incident, appellant said to her, “‘We shot him.’” Later that day she also met Hernandez, who said, “We killed him,” and indicated that the killing had occurred at a nearby 7-11 store. When Gonzalez was cross-examined, she denied that appellant made any remark to her about the shooting, and asserted that she was terrified and confused when investigating officers interviewed her. On redirect examination, the prosecutor played a recording of Gonzalez’s police interview, during which she said that appellant and Hernandez told her, respectively, “‘I shot him,’” and “‘We shot him.’”
In addition, LAPD Detective Martin Pinner testified that when he and other investigating officers searched appellant’s residence, Gonzalez told him that appellant had shot somebody. According to Pinner, Gonzalez was calm and cooperative in response to his request that she accompany him to the police station for a recorded interview.
Natalie and Brisa Gomez, who are sisters, testified that at some point after the shooting, they stood outside their apartment building, talking about the incident with several individuals, including Hernandez. Appellant approached the group and spoke to them. According to Natalie, appellant told them “[t]hat he had killed the guy and that if [they] said anything he was gonna kill [them].” Brisa testified that he stated “that he had done it” and that “if [they] said anything, . . . he didn’t care if it was family or friend, . . . he’ll do anything.” Appellant was arrested on April 24, 2003. When Guiral booked appellant, appellant said: “‘Man, Guiral, I’m going to take ten years, the first deal they give me. Ten years is better than life.’”
B. Defense Evidence
Rocio Romero Villasenor testified that he had lived in the same apartment building as Ochoa in 1995 or 1996. According to Villasenor, Ochoa then had a roommate named “Freddie.” Ochoa was often intoxicated, and Villasenor saw Ochoa use violence against Freddie on three occasions.
Maria Elena Gonzalez, appellant’s mother, testified that when police officers asked her daughter Ana to go to the police station for an interview, she refused to permit the interview. She eventually allowed the officers to take Ana to the station on condition that Ana’s sister be present during their interview. The officers agreed to this condition. Maria Gonzalez, Ana’s elder sister, testified that she accompanied Ana to the police station, but despite the officers’ promise to her mother, they excluded her from the interview until it was nearly finished. According to Maria Gonzalez, Ana was terrified and emotional while she was at the station.
C. Rebuttal
LAPD Detective Margaret Moss testified that she was present when investigating officers searched appellant’s residence on April 24, 2003. According to Moss, Ana Gonzalez was calm and cooperative when the officers sought to interview her, and her mother imposed no conditions on the interview.
DISCUSSION
Appellant contends the trial court (1) declined to bifurcate trial of the gang allegation and admitted gang evidence, and (2) admitted statements by Hernandez and himself. He also contends (3) the prosecutor engaged in misconduct, and (4) there was sentencing error. Finally, (5) in connection with his motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), appellant requests this court independently review the in camera proceeding to determine whether the trial court erred in denying disclosure of any information.
A. Bifurcation of the Gang Allegation and Admission of Gang Expert Testimony
Appellant contends the trial court erred in denying his motion to bifurcate trial of the gang allegation, and in admitting gang expert testimony. We disagree.
1. Governing Principles
Section 186.22, subdivision (b)(1), provides a sentence enhancement for a defendant convicted “of a felony committed 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 . . . .” (§ 186.22, subd. (b)(1).) As our Supreme Court explained in People v. Hernandez (2004) 33 Cal.4th 1040, 1051 (Hernandez), when a gang enhancement has been alleged, the trial court may decline to bifurcate trial of the enhancement unless the defendant makes a clear showing of prejudice. In cases not involving a gang enhancement, evidence of gang membership is properly excluded if its probative value is minimal, due to the potential for prejudice to the defendant. (Id. at p. 1049.) Nonetheless, even in cases of this kind, gang evidence is often admissible as relevant to many issues, including identity, motive, and intent. (Ibid.) In contrast, when a gang enhancement is alleged, considerations of efficiency and the conservation of judicial resources weigh in favor of submitting gang evidence to the jury. Accordingly, in such cases, the trial court may properly deny bifurcation absent a clear showing that a joint trial carries a substantial danger of undue prejudice, even though some evidence bearing on the enhancement would be inadmissible in a separate trial of the underlying offense. (Id. at pp. 1049-1050.)
A criminal street gang is “any ongoing organization, association, or group of three or more persons, whether formal or informal,” that has as “one of its primary activities” the commission of enumerated offenses, that has “a common name or common identifying sign or symbol,” and “whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
2. Underlying Proceedings
On September 14, 2005, appellant filed a pretrial motion to bifurcate trial of the gang allegation. In opposition to the motion, the prosecutor argued that the evidence supporting the gang allegation was relevant to appellant’s motive and intent in murdering Ochoa, and thus, was cross-admissible to establish the substantive offenses charged against appellant. Following a hearing, the trial court denied the motion, concluding that the gang evidence was highly relevant to the issues of motive, intent, and identity. The trial court nonetheless stated it would “monitor and admit the gang expert’s testimony on a question-by-question basis.” Later, when Officer Guiral, the gang expert, testified, the trial court sustained several defense objections, and gave limiting instructions regarding his testimony.
Officer Guiral testified in some detail about the size, territory, social structure, signs, and criminal activities of the Radford Street gang. He testified that appellant, Leon, and Hernandez were members of the gang, as were appellant’s brother, Miguel Gonzalez, and his sister, Ana Gonzalez. Moreover, he testified that gang members retaliate for acts of disrespect to preserve their prestige and the gang’s turf.
Some of this testimony took the form of responses to hypothetical questions. The prosecutor asked Guiral: “Let’s assume that there’s a gang member in a laundromat and that laundromat is in Radford Street territory and that particular gang member is a Radford Street gang member and the person in that laundromat has been drinking and he insults that gang member. That gang member then goes out and over the following six days or so tries to recruit other gang members to go exact retaliation against that person in the laundromat and eventually that person does find two other gang members to go with him to [] exact revenge or retaliation on that person in the laundromat. [¶] Under those circumstances do you have an opinion about whether . . . that particular type of conduct is designed to aid or benefit or promote . . . a criminal street gang?” Over appellant’s objection, Guiral answered, “Yes,” and explained his answer by reference to the gang’s need to preserve dominance over its turf.
The prosecutor then asked Guiral: “Under that particular hypothetical, . . . how would bragging or boasting about that shooting benefit the gang?” Guiral responded that such conduct enhanced the gang members’ prestige and “[kept] the name of the gang strong.”
Later, the prosecutor asked Guiral: “If three documented gang members go to exact revenge or retaliation for a disrespect that has happened approximately six days earlier and they go and they shoot and kill the person who disrespected them, . . . do you have an opinion about whether those three gang members were acting in association with each other?” Again, over appellant’s objection, Guiral answered, “Yes,” and explained his answer.
Guiral also testified about related matters, including how gang members “manage their gun supply.” Over appellant’s objections, he opined that gang members buy guns on the street, pass them to other members, and dispose of them after a crime.
3. Bifurcation of Trial
Appellant contends the trial court abused its discretion in declining to bifurcate trial of the gang allegations. He argues that the gang evidence had little or no relevance to the issues of motive, intent, and identity, and that the evidence regarding the Radford Street gang’s criminal activities, gang signs, and practices regarding unregistered guns, as well as his brother’s and sister’s membership in the gang, was excessively inflammatory. We disagree.
Appellant has forfeited one of his objections to this evidence. When Guiral testified that the primary activity of the Radford Street gang included murder, attempted murder, and assaults, defense counsel objected to this testimony as more prejudicial than probative (Evid. Code, § 352), and asked the trial court to strike it. Defense counsel then agreed to withdraw this request if Guiral clarified that there had been only three murders during the relevant period, and Guiral so testified.
In our view, much of the gang evidence would have been admissible regarding appellant’s motive in killing Ochoa, even if there had been no gang allegation. (Hernandez, supra, 33 Cal.4th at p. 1049; People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) California courts have long held that “it is proper to introduce evidence which is even unpleasant or negative pertaining to an organization in issue which is relevant on the issue of motive or the subject matter at trial.” (People v. Frausto (1982) 135 Cal.App.3d 129, 140-141.)
A partial survey of early case authority in People v. Frausto, supra, 135 Cal.App.3d at pages 140-141, indicates the breadth of these holdings: “In People v. Remiro (1979) 89 Cal.App.3d 809, 841-844, it was proper to introduce evidence of various criminal acts of a terrorist group, the Symbionese Liberation Army, in order to show the nature of the conspiracy pertaining to a murder. [¶] In the same manner, in People v. Manson (1976) 61 Cal.App.3d 102, 131, 155-156, it was proper to introduce evidence of the social structure, religion, and criminal activities of an organization known as the ‘Family’ because of its relevancy to the motivation and the nature of the conspiracy of the Tate-LaBianca murders. In In re Darrell T. (1979) 90 Cal.App.3d 325, 328-334, the court discussed evidence concerning the history and nature of various juvenile gangs as it pertained to the proof of the existence of a motive relative to the crime of murder. In People v. Beyea (1974) 38 Cal.App.3d 176, 194, evidence concerning a membership in the Hell’s Angels was deemed to be properly introduced relative to the issue of motive.” Subsequent to Frausto, numerous courts have admitted expert testimony on criminal street gangs to establish motive, social structure, and other matters. (People v. Killebrew (2002) 103 Cal.App.4th 644, 654-655 [discussing cases].)
As our Supreme Court explained in People v. Ward (2005) 36 Cal.4th 186, 211, gang expert testimony is admissible “to explain to lay jurors conduct that may appear counterintuitive in the absence of such insight.” Absent Guiral’s testimony, Ochoa’s murder raised puzzles for jurors unfamiliar with gang culture, including why appellant would allow Leon to recruit him to commit a murder after Leon had filed a complaint with the police, why appellant and Hernandez would boast about a killing, and why Ana Gonzalez would repudiate her statement about appellant’s admission to her.
The prosecutor’s theory was that appellant killed Ochoa at Leon’s urging to reassert the Radford Street gang’s dominance over its turf following Ochoa’s public act of disrespect to Leon. To establish this theory regarding appellant’s motive, the prosecutor sought to show that (1) Radford Street gang members placed great weight on respect for their gang, (2) its turf had special significance for members, (3) the gang possessed the cohesiveness for joint action to retaliate for acts of disrespect, and (4) gang members often publicize their retaliation. Guiral’s testimony on these matters was thus relevant to the issue of motive. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208 [expert’s testimony admissible to show that gang member’s motive for murder was to enhance his reputation and assert his gang’s power within the community].) In addition, his testimony regarding the Radford Street gang’s use of unregistered guns and the gang membership of appellant’s siblings was relevant to issues closely tied to this theory, namely, the missing murder weapon (see People v. Ward, supra, 36 Cal.4th at p. 209 [expert’s testimony that gang members are likely to be armed in rival gang territory admissible to show intent in case]) and Ana Gonzalez’s inconstant testimony (see People v. Gonzalez (2006) 38 Cal.4th 932, 944-946 (Gonzalez) [expert properly testified that gang members are likely to intimidate fellow gang members called as witnesses]).
We recognize that the remaining evidence admitted to establish the gang enhancement carried a potential for prejudice against appellant. Nonetheless, the trial court may properly deny bifurcation even though some of the evidence offered to prove the enhancement would not be admissible at a separate trial of the underlying offense. (Hernandez, supra, 33 Cal.4th at p. 1050.) Here, the trial court’s instructions to the jury nullified any potential for prejudice.
During Guiral’s testimony, the trial court instructed the jury as follows: “You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose and knowledge that are required to prove the gang-related crime or special allegations charged or [whether] the defendant had a motive to commit the crime or allegations charged. You may not consider this evidence for any other purpose. You must not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.” The trial court repeated these instructions after the presentation of evidence.
We presume the jury heeded these instructions (People v. Delgado (1993) 5 Cal.4th 312, 331), and thus conclude the evidence regarding the gang enhancement was not prejudicial to appellant. In sum, the trial court properly declined to bifurcate trial of the gang allegation.
4. Expert Testimony
Appellant also contends the trial court improperly admitted expert testimony regarding his role in Ochoa’s murder. Pointing to People v. Killebrew, supra, 103 Cal.App.4th 644 (Killebrew), he argues that Guiral provided inadmissible opinions about appellant’s state of mind and conduct in the guise of responses to hypothetical questions. Again, we disagree.
“California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) The admission of expert testimony on gangs is reviewed for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.)
In Killebrew, police officers searched three cars close to the site of a gang shooting, and discovered a gun in one car and a second gun near the other two cars. (Killebrew, supra, 103 Cal.App.4th at p. 647.) The defendant, a gang member found standing near the car containing the gun, was convicted of conspiracy to possess a firearm. (Id. at pp. 647-648.) The court held there was insufficient evidence that the defendant had possessed either of the guns found in or near the cars. (Killebrew, supra, 103 Cal.App.4th at pp. 647, 660-661.) There was no evidence he had occupied any of the cars or exercised control over them, and the primary testimony regarding constructive possession came from an expert. (Id. at pp. 652, 658.) In concluding the expert’s testimony was improper opinion on an ultimate fact, the court stated: “Through the use of hypothetical questions, [the expert] testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. [The expert] testified to the subjective knowledge and intent of each occupant of each vehicle. Such testimony is much different from [testimony regarding] the expectations of gang members in general when confronted with a specific action.” (Id. at p. 658, italics omitted.)
Following Killebrew, our Supreme Court has repudiated any suggestion in that case that gang experts may not offer opinions in response to hypothetical questions framed in terms of facts established by the prosecution. In Gonzalez, the defendant, a member of the Lott Stoners 13 gang, entered territory claimed by the Lopez Maravilla street gang, and shot two men working on a driveway. (Gonzalez, supra, 38 Cal.4th at p. 938.) Several individuals, including members of the Lott Stoners and the Lopez Maravilla, told the police the defendant was the shooter, but repudiated their statements at trial. (Id. at pp. 939-940.) During the trial, the prosecutor asked the gang expert: “‘Assuming a member of Lopez Maravilla was called to testify against a rival gang member, a Lott Stoner, do you have an opinion as to whether or not there would be intimidation against the gang member who was called to testify by his own gang as well as any other gang?’” (Id. at pp. 944-945.) The expert answered, “‘Definitely,’” and offered his opinion. (Id. at p. 945.) When the prosecutor asked, “‘Assuming that a member of [the] Lott Stoners was called to testify in a case involving a Lott Stoner as a defendant, do you have an opinion as to whether or not there would be intimidation from the Lott Stoners gang to the witness?’”, the expert gave a similar reply. (Ibid.)
Relying on Killebrew, the defendant argued that the expert’s opinions were inadmissible. (Gonzalez, supra, 38 Cal.4th at p. 946.) The court in Gonzalez rejected this contention: “[W]e read Killebrew as merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’ [Citations.] Even if we assume, without deciding, that Killebrew is correct in this respect, it has no relevance here. [The gang expert] merely answered hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony.” (Ibid.)
The court in Gonzalez also noted that the gang expert “did not express an opinion about whether the particular witnesses in th[e] case had been intimidated.” (Gonzalez, supra, 38 Cal.4th at p. 947.) The court remarked in a footnote: “[Killebrew] is somewhat unclear in this regard. . . . The opinion never specifically states whether or how the expert referred to specific persons, rather than hypothetical persons. 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.” (Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3.)
In discussing Killebrew, the court pointed to its discussion of gang expert testimony in People v. Gardeley, supra, 14 Cal.4th 605. There, the prosecutor asked the expert to assume a hypothetical based on the facts of the underlying assault, and sought his opinion whether the attack, as described, was gang-related activity. (Id. at p. 619.) The expert responded that it was a “‘classic’” case of such activity. (Ibid.) The court concluded that this was an admissible expert opinion. (Ibid.)
In view of Gonzalez and Gardeley, Guiral’s opinions were properly admitted. Through hypothetical questions framed in terms of the facts established at trial, the prosecutor elicited Guiral’s opinion that the misconduct, so described, would benefit the gang, and involve gang members acting in association. Guiral never opined that appellant specifically engaged in any such conduct, and the matters in question were proper subjects of expert opinion (People v. Gardeley, supra, 14 Cal.4th at p. 619).
B. Hernandez’s Statement
Appellant contends the trial court improperly admitted evidence that Hernandez told Ana Gonzalez, “We shot him.” The trial court ruled that Hernandez’s statement was admissible over a hearsay objection as a declaration against penal interest.
Aside from arguing that Hernandez’s statement was inadmissible hearsay, appellant raises no other contention of error regarding the statement. He has therefore forfeited all such contentions.
“Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant’s penal interest. The proponent of such evidence must show ‘that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.’” (People v. Lucas (1995) 12 Cal.4th 415, 462, quoting People v. Cudjo (1993)6 Cal.4th 585, 607 (Cudjo).)
Evidence Code section 1230 provides: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”
Here, appellant does not dispute that Hernandez was unavailable as a witness. He argues that Hernandez’s statement does not meet the other requirements for an admission against interest because the statement inculpated both Hernandez and appellant. As we explain below, there was no error.
In People v. Leach (1975) 15 Cal.3d 419, 426 (Leach), several defendants were charged with conspiracy to commit murder. Prior to trial, some of the defendants made statements describing the conspiracy that inculpated themselves and other defendants. (Id. at pp. 438-442.) The court held that the statements were improperly admitted at trial, reasoning that the exception for admissions against penal interest was “inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.” (Id. at pp. 441-442.) This rule was subsequently followed on essentially similar facts in People v. Shipe (1975) 49 Cal.App.3d 343, 352-355 (Shipe).
In People v. Duarte (2000) 24 Cal.4th 603, 613-614 (Duarte), the court explained that the holding in Leach ultimately rests on considerations of reliability: a facially inculpatory statement, when viewed in context, may actually be exculpatory or self-serving, and thus untrustworthy. In Duarte, the defendant and another man were charged with shooting at a dwelling. (Id. at pp. 607-609.) Prior to the defendant’s trial, his accomplice gave police a statement that acknowledged his participation in the crime, but minimized his role. (Id. at pp. 611-614.) A redacted version of the statement was admitted at the defendant’s trial as an admission against penal interest. (Id. at p. 609.)
Following an analysis of case authority, the court in Duarte stated: “Under the rule of Leach, a hearsay statement ‘which is in part inculpatory and in part exculpatory (e.g., one that admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible.’” (Duarte, supra, 24 Cal.4th at p. 612, quoting In re Larry C. (1982) 134 Cal.App.3d 62, 69.) Applying this rule, the court concluded that the redacted statement, viewed in context, was self-serving, and thus improperly admitted. (Id. at pp. 612-613.)
Our Supreme Court has clarified that Leach does not exclude a statement that inculpates the declarant and other individuals, provided that the statement neither minimizes the declarant’s guilt nor shifts blame to co-participants. In People v. Samuels (2005) 36 Cal.4th 96, 101-106 (Samuels), the defendant asked James Bernstein to murder her husband, and once Bernstein had done so, she successfully solicited two other men to murder Bernstein. At the defendant’s trial, a witness testified that Bernstein had said to him, “‘He had done it and Mike [Silva] had helped him. And that [the defendant] had paid him.’” (Id. at p. 120.)
The court in Samuels held that the entire statement was properly admitted as a declaration against penal interest, notwithstanding the reference to the defendant: “This admission, volunteered to an acquaintance, was specifically disserving to Bernstein’s interests in that it intimated he had participated in a contract killing -- a particularly heinous type of murder -- and in a conspiracy to commit murder. Under the totality of the circumstances presented here, we do not regard the reference to [the] defendant incorporated within this admission as itself constituting a collateral assertion that should have been purged from [the witness’s] recollection of Bernstein’s precise comments to him. Instead, the reference was inextricably tied to and a specific statement against penal interest.” (Samuels, supra, 36 Cal.4th at pp. 101-106, 121.)
In admitting Hernandez’s statement, the trial court stated: “[Hernandez is] admitting his culpability in a murder as well as others. ¶ He equally implicates himself as well as the other co-conspirators. It would appear to be trustworthy, in my opinion, because he’s not just shifting blame or trying to inculpate [appellant] or another co-defendant. He is taking [] fair and equal blame in the statement. He made it to Ana Gonzalez[,] who was on the fringe of the gang [and] was very heavily involved at least with socializing with these gang members [who] appeared to have confided in her to a certain degree.”
We agree with the trial court on this matter. Like the statement in Samuels, Hernandez’s statement tied him to a conspiracy involving appellant without minimizing Hernandez’s guilt or responsibility; viewed in context, it is neither self-serving nor exculpatory. Accordingly, Leach, Shipe, and Duarte, upon which appellant relies, are factually distinguishable.
Appellant also argues that Hernandez’s statement was unreliable because gang members are untrustworthy, and Ana Gonzalez was not a credible witness. He is mistaken. Hernandez’s status as a gang member does not render his admission unreliable as a matter of law. (See People v. Frutos (1984) 158 Cal.App.3d 979, 985 [gang member’s inculpatory statement to a cellmate admissible as an admission against penal interest because gang member had no reason to lie].) Although Officer Guiral testified that gang members often publicize crimes they commit, nothing establishes that Hernandez was likely to claim responsibility for a murder he did not commit. As to the reliability of Ana Gonzalez’s statements, our Supreme Court has made clear that absent circumstances not present here, “doubts about the credibility of the in-court witness should be left to the jury’s resolution; such doubts do not afford a ground for refusing to admit evidence under the hearsay exception for statements against penal interest.” (Cudjo, supra, 6 Cal.4th at pp. 606-609.) In sum, Hernandez’s statement was properly admitted.
Under Cudjo, the credibility of the in-court witness operates to exclude an admission against penal interest only when the witness’s testimony is demonstrably false, that is, “the testimony is physically impossible or its falsity is apparent ‘without resorting to inferences or deductions.’” (Cudjo, supra, 6 Cal.4th at pp. 608-609, quoting People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another ground in People v. Burton (1961) 55 Cal.2d 328, 352.) Ana Gonzalez’s testimony, though inconsistent, does not meet this stringent test. (In re Frederick G. (1979) 96 Cal.App.3d 353, 366 [“The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.”].)
C. Appellant’s Statement
Appellant contends the trial court erred in admitting Officer Guiral’s testimony that when appellant was booked, he said, “Man, Guiral, I’m going to take ten years, the first deal they give me. Ten years is better than life.” Appellant challenges the admission of this statement on several grounds. As we explain below, none has merit.
Appellant suggests that the statement did not constitute a party-admission under Evidence Code section 1220 because it is too vague to be an expression of guilt. Under this provision, “[a]n admission consists of a statement or conduct of a party to the action . . . that is offered against the party at the trial.” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 90, p. 793.) Insofar as appellant argues that the statement was admissible only if it amounted to an acknowledgment of guilt, he is mistaken. As Witkin explains, under the hearsay exception for party-admissions, “any prior statement of a party may be offered against the party, even though it may not have been against the party’s interest or even may have been self-serving when made. [Citations.]” (Id. at § 93, pp. 796-797.)
Appellant also contends that the statement was inadmissible, despite the party-admission exception, because it lacked any relevance to the disputed issues at trial. As our Supreme Court has explained: “Only relevant evidence is admissible. (Evid. Code, § 350 . . . .) Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” The trial court’s determination on this matter is reviewed for an abuse of discretion. (People v. Garceau (1993) 6 Cal.4th 140, 176-177, overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117.)
Appellant argues that the statement is so vague and open to speculation that it lacks relevance under this test. The trial court concluded otherwise, reasoning that it clearly expressed a “consciousness of guilt.” We agree. California courts have long recognized that a defendant’s offer to engage in plea bargaining is relevant to the issue of guilt. (People v. Wilson (1963) 60 Cal.2d 139, 155 [“In the absence of statute, it has been held in California that an offer to plead guilty is admissible in evidence. . . . The underlying theory of these cases is that by his plea or offer to plead guilty the defendant has made, in fact, an admission of guilt.”]; People v. Boyd (1924) 67 Cal.App. 292, 302 [defendant’s offer to plead guilty to one offense charged against him is “competent evidence” of his culpability regarding all of the alleged offenses]; People v. Cooper (1947) 81 Cal.App.2d 110, 117-118 [defendant’s offer to plead guilty to lesser charge was “material evidence” of his culpability for greater charge].)
We recognize that Evidence Code section 1153 renders inadmissible evidence of offers to plead guilty “made by the defendant in a criminal action.” (People v. Magana (1993) 17 Cal.App.4th 1371, 1375.) Appellant does not raise or address this provision, and thus he has forfeited all contentions of error predicated on it. Moreover, any such contention fails on its merits. Evidence Code section 1153 bars evidence of “bona fide plea negotiations,” but not a defendant’s spontaneous and unsolicited statement to a police officer indicating an interest in a plea bargain. (Id. at pp. 1376-1377.) Thus, in People v. Posten (1980) 108 Cal.App.3d 633, 647-648, the defendant, who was being transported from Virginia to California for trial on several charges, twice told the officers accompanying him that he was willing to plead guilty to one of the charges. The court concluded that the remarks were properly admitted against the defendant, reasoning that they constituted unsolicited admissions, rather than bona fide plea negotiations. (Ibid.) We reach the same conclusion here.
Appellant’s reliance on People v. Allen (1976) 65 Cal.App.3d 426 is misplaced, as that case is factually distinguishable. There, the defendant agreed to sleep overnight in the apartment of a woman who owned a substantial amount of jewelry. (Id. at pp. 429-431.) During the night, the defendant awoke the woman, and told her that he had unsuccessfully pursued an intruder who had stolen her jewelry. (Ibid.) In the presence of investigating police officers, the defendant assured the woman that he had “some very good connections,” and that he had “ways” of finding out whether someone was trying to sell the stolen jewelry. (Id. at pp. 431-432.) When the defendant was tried for grand theft, the trial court admitted the remarks as party-admissions. (Ibid.) The appellate court concluded this was error because the remarks were irrelevant to the issues at trial: the remarks were facially exculpatory, and tended only to cast a poor light on the defendant’s character traits. (Id. at pp. 433-436.) In contrast, appellant’s remark to Guiral expressly indicated his willingness to accept punishment for the acts alleged against him.
Appellant contends the trial court erred under Evidence Code section 356 in excluding evidence of his interview with LAPD Detective Martin Pinner, during which appellant denied any role in Ochoa’s murder. “The purpose of [section 356] is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission . . . in evidence.’” (People v. Arias (1996) 13 Cal.4th 92, 156.)
Evidence Code section 356 provides: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
Appellant argues that Pinner’s interview, which occurred at the North Hollywood LAPD station, provides the context needed for understanding his remark to Guiral, which he made later the same day at the Van Nuys LAPD station. The trial court rejected this contention, reasoning that the interview and remark involved “two different situations, two different officers, two different purposes.” There was no abuse of discretion. (See People v. Williams (2006) 40 Cal.4th 287, 317-319 [after admitting defendant’s first police interview, the trial court was not obliged to admit subsequent interview].)
Finally, appellant contends that his remark should have been excluded under Evidence Code section 352 because its admission was more prejudicial than probative. We see no error. The trial court heard argument on both sides of the issue, indicating that the trial court weighed the appropriate factors. (People v. Garceau, supra, 6 Cal.4th at p. 179.) Because the only discernible prejudice to appellant stems from the remark’s probative value regarding his guilt, the remark was properly admitted. (See Kessler v. Gray (1978) 77 Cal.App.3d 284, 291-292.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
D. Prosecutorial Misconduct
Appellant contends the prosecutor engaged in misconduct during closing argument by suggesting to the jury that there was other evidence bearing on his guilt aside from that presented at trial. We disagree.
1. Underlying Proceedings
During the cross-examination of Natalie Gomez, defense counsel elicited that she had reviewed two recorded police interviews in which she had participated. The trial court later denied the prosecutor’s request to admit one of the taped interviews into evidence.
During the opening portion of closing argument, the prosecutor discussed Ana Gonzalez’s testimony, and urged the jury to review the redacted recording of her police interview that had been admitted into evidence. When the prosecutor moved on to address Natalie Gomez’s testimony, he stated: “So Natalie Gomez obviously is scared. Remember she got very emotional. She was afraid. This is a gang case . . . . [¶] But once she was outside that fear . . . [s]he said, “Look, Detective. I’m going to lay that out to you and she gave a recorded statement.”
The prosecutor continued: “By the way, you’ve seen the big mess, all the recordings, all the transcripts, all the boxes of stuff. And one of the first things you are going to want to do is when you get back there, you want to hear that recording on somebody. Well -- or I want to see that police report or I want to see the murder book that Detective Pinner talked about. Can’t have it. We’re hamstrung by the law here. We can’t do everything -- ” (Italics added.) The trial court sustained defense counsel’s objection to this remark, and instructed the jury, “The comment, ‘We’re hamstrung by the law here,’ will be stricken and not considered by the jury.
When the prosecutor resumed his argument, he stated: “There’s legal reasons why you don’t get the things we talked about in court. You get what is coming from the witness stand. You don’t get necessarily the tapes and what is behind it.” (Italics added.) The trial court sustained a renewed objection from defense counsel, and told the jury, “The comment about ‘You don’t necessarily get [the] tapes and what is behind it,’ that will be stricken and not considered by the jurors.”
The prosecutor again resumed his argument, and stated: “You understand what I’m saying. I’m trying to help you out.” (Italics added.) No objection was raised to this remark. The trial court later instructed the jury to consider only admitted evidence in its deliberations (CALCRIM No. 222).
After the jury returned its verdict, appellant filed a motion for a new trial, which argued that the first two italicized remarks constituted prosecutorial misconduct. In denying the motion, the trial court stated that the remarks were ambiguous: the jurors might have interpreted them as implying the existence of material evidence not admitted at trial, or as directing the jury to disregard materials not admitted into evidence. The trial court further explained that it had sustained appellant’s objections and admonished the jury “in an abundance of caution.”
2. Analysis
Appellant contends that the three italicized portions of the prosecutor’s argument constitute misconduct. Generally, “a prosecutor may not go beyond the evidence in his argument to the jury. [Citations.] To do so may suggest the existence of ‘facts’ outside the record -- a suggestion that is hard for a defendant to challenge and hence is unfair.” (People v. Benson (1990) 52 Cal.3d 754, 794.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, “the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” (People v. Frye (1998) 18 Cal.4th 894, 970.) Appellant argues that the prosecutor’s remarks constitute reversible error because they improperly suggested he could establish appellant’s guilt if unhampered by the rules of evidence. We disagree.
Although appellant refers to his motion for a new trial, he does not independently argue that the trial court improperly denied it, and thus any such contention has been forfeited. Moreover, because the trial court’s ruling on this motion -- insofar as it raised prosecutorial misconduct -- is reviewed for an abuse of discretion (People v. Rhoades (1949) 93 Cal.App.2d 448, 453), a challenge to the ruling would fail for the reasons explained in the text.
Under the circumstances of this case, appellant is obliged to show that the prejudice (if any) from the remarks exceeded the curative powers of admonitions by the trial court. Upon sustaining appellant’s objections, the trial court directed the jury to disregard the first two remarks. Because the jury is presumed to follow instructions to disregard improper argument, “[i]t is only in the exceptional case that ‘the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.’” (People v. Allen (1978) 77 Cal.App.3d 924, 934-935, quoting People v. Seiterle (1963) 59 Cal.2d 703, 710.) Moreover, because appellant did not object to the third remark, his contentions regarding it are reviewable “only if an admonition would not have cured the harm caused by the misconduct.” (People v. Price (1991) 1 Cal.4th 324, 447.) Exceptional circumstances may exist when, due to the specific factual context, an admonition “will actually exacerbate the prejudice to the defendant.” (People v. Pitts (1990) 223 Cal.App.3d 606, 692.)
We see no exceptional circumstances here. In People v. Young (2005) 34 Cal.4th 1149, 1196, the trial court ruled that a police officer’s affidavit in support of a search warrant was not admissible. When the prosecutor mentioned the affidavit during the opening portion of his closing argument, the trial court overruled a defense objection. (Ibid.) Subsequently, in rebuttal, the prosecutor tried to read statements from the affidavit. (Ibid.) The trial court sustained defense objections, and admonished the jury that the prosecutor was permitted to argue as to what the witnesses had testified, but not as to the contents of the affidavit. (Ibid.) Reasoning that “the prosecutor’s transgression, if any, was minor and neither deceptive nor reprehensible,” the court in Young held that the admonition cured any prejudice from the prosecutor’s references to the affidavit. (Ibid.)
We reach a similar conclusion. The italicized remarks were brief and did not invite the jury to make any particular inference. Moreover, the remainder of the prosecutor’s argument directed the jury’s attention to “what [came] from the witness stand,” and underscored a fact the jury already knew, namely, that some materials mentioned during the trial had not been admitted into evidence. During Ana Gonzalez’s testimony, for example, the trial court had expressly directed the jury not to speculate about the redactions in the transcript of her police interview. In view of these circumstances, the prejudice (if any) from the italicized remarks was curable by admonition. Accordingly, the trial court’s directions to the jury cured any prejudice from the first two remarks, and appellant has forfeited his contention of error regarding the third remark.
Appellant suggests that the trial court, in denying his new trial motion, impliedly found that the prosecutor had pointed at three boxes in the well of the courtroom. We disagree. On appeal, we interpret the record in the light most favorable to the trial court’s rulings, and imply findings sufficient to support these rulings. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, pp. 394-396; see Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793.) Because the trial court determined that the prosecutor’s remarks were ambiguous, we conclude that it did not find the prosecutor made any gestures that clarified his intent.
Pointing to People v. Bolton (1979) 23 Cal.3d 208 (Bolton), appellant contends that the admonitions were inadequate to nullify the prejudice from the first two remarks. We disagree. There, the defendant, who was charged with assault with a deadly weapon, asserted at trial that he had acted in self-defense, and impeached the victim’s testimony by showing that the victim had a criminal record. (Id. at pp. 211- 212 & fn. 1.) During closing argument, the prosecutor stated that it was unfair that he could not do “the same thing” to the defendant, and suggested that the defendant might be “just as bad a guy as” the victim. (Id. at p. 212, fn. 1.) The judge sustained objections to these remarks, admonished the jury to disregard them, and directed the prosecutor to limit his argument to the evidence. (Ibid.) The court in Bolton held that the prosecutor’s argument was not prejudicial in light of the evidence at trial, and declined to address whether the trial court’s admonitions were adequate. (Id. at p. 216, fn. 5.) In a footnote, it remarked that the trial court should “make a statement . . . that will counteract fully whatever prejudice to the defendant resulted from the prosecutor’s remarks,” and suggested an admonition appropriate to the situation before it. (Ibid.)
The court offered the following admonition: “‘Ladies and Gentlemen of the jury, the prosecutor has just made certain uncalled for insinuations about the defendant. I want you to know that the prosecutor has absolutely no evidence to present to you to back up these insinuations. The prosecutor’s improper remarks amount to an attempt to prejudice you against the defendant. Were you to believe these unwarranted insinuations, and convict the defendant on the basis of them, I would have to declare a mistrial. Therefore, you must disregard these improper, unsupported remarks.’” (Bolton, supra, 23 Cal.3d at p. 216, fn. 5.)
Here, unlike Bolton, the prosecutor did not propose any particular inference about matters outside the evidence, and the precise import of his remarks was unclear. For this reason, we conclude that the trial court’s direction to the jury to disregard the remarks “counteract[ed] fully” any prejudicial effect. (Bolton, supra, 23 Cal.3d at p. 216, fn. 5.)
E. Sentencing Error
In sentencing appellant to a total term of 80 years to life, the trial court imposed a term of 25 years to life for murder, doubled as a second strike pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (e)), plus a term of 25 years to life for personal use of a firearm causing great bodily injury (§ 12022.53, subd. (d)), and a term of five years for a prior felony conviction (§ 667, subd. (a)(1)). In addition, it imposed and stayed a three-year gang enhancement (§ 186.22, subd. (b)(1)(A)), a 10-year personal gun use enhancement (§ 12022.53, subd. (b)), and a 20-year enhancement for personally discharging a firearm (§ 12022.53, subd. (c)). It also stayed enhancements for gun use as a principal (§§ 12022.53, subd. (b), (c), (d), (e)(1)).
In sentencing appellant, the trial court dismissed the allegation that appellant had served a prior prison term (§ 667.5, subd. (b)).
Appellant contends the trial court erred in (1) imposing a sentence under the Three Strikes law, and (2) imposing the firearm and gang enhancements (aside from the enhancement for personal use of a firearm causing great bodily injury (§ 12022.53, subd. (d)).
1. Second Strike
Appellant contends the trial court improperly doubled his sentence for murder under section 667, subdivision (e)(1), and section 1170.12, subdivision (c)(1), of the Three Strikes law. These provisions of the Three Strikes law state: “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as a punishment for the current felony conviction.” Appellant argues that the amended information did not allege a prior conviction within the meaning of the Three Strikes law, and his waiver of a jury trial on the prior conviction allegations in the information did not encompass any such conviction.
a. Underlying Proceedings
The amended information alleged that appellant had one felony conviction (§ 667, sub. (a)(1)) for which he had served a prior prison term (§ 667.5, subd. (b)), namely, a conviction for burglary (§ 459) on July 29, 1999 (Los Angeles County Superior Court Case No. LA032364). The amended information lacked any express allegation that the burglary conviction constituted a strike within the meaning of the Three Strikes law.
At a hearing on July 6, 2006, the prosecutor noted that appellant had not been arraigned on the amended information, and at the trial court’s invitation, she proceeded to do so. In describing the amended information, the prosecutor stated that the information alleged “the fact that [appellant] apparently suffered a prior strike conviction.” Appellant, when asked whether he understood the charges and allegations, responded, “Yes, Ma’am.” He pleaded not guilty and denied the allegations.
Prior to trial, defense counsel requested a separate bench trial on “the prior.” When the trial court asked if appellant agreed to waive his right to a jury trial on “whether or not [he had] suffered those prior convictions,” appellant answered, “Yes, Ma’am.” The trial court then indicated it would take additional waivers later. During trial, defense counsel told the trial court: “The People have alleged a 459 prior and we would waive jury on that issue if the jury were to convict [appellant] of any charges or lesser charge.” After explaining that appellant had a right to a jury trial on “any priors as alleged in the information,” the trial court asked whether he understood the consequences for his sentence if he “were convicted on those priors.” Appellant answered affirmatively, and agreed to waive his right to a jury trial.
The jury returned its verdict on August 25, 2006. In a report dated October 6, 2006, the probation officer stated that the charges and allegations against appellant included a prior pursuant to the Three Strikes law. The prosecutor’s sentencing memorandum, filed on October 25, 2006, asserted that appellant’s burglary conviction constituted a prior strike, and proposed that his term for murder should be “doubled for the strike prior.” On or about November 15, 2006, appellant filed an “invitation” requesting that the trial court strike the enhancements alleged under the Three Strikes law, pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero).
The bench trial on the prior conviction allegations occurred on November 20, 2006. After the trial court found that appellant had suffered a burglary conviction in 1999 for which he had served a prison term, it turned to appellant’s request to strike the conviction for purposes of the Three Strikes law. After hearing argument from defense counsel, the trial court responded: “It’s a second strike. On a third strike, perhaps the court would have a different opinion . . . .” The trial court recited the details of appellant’s criminal history and concluded: “The court finds the defendant clearly comes within the spirit of a second strike law even though it is a very long term.” Thereafter, it sentenced appellant in accordance with the doubling provisions of the Three Strikes law.
b. Analysis
We conclude that appellant’s contention fails in light of the so-called “informal amendment doctrine,” which constitutes a judicial recognition that an information may be amended without written alterations to it. (People v. Sandoval (2006) 140 Cal.App.4th 111, 113 (Sandoval).
Generally, the purpose of an accusatory pleading is “‘to provide the accused with reasonable notice of the charges.’” (Sandoval, supra, 140 Cal.App.4th at p. 132, quoting People v. Ruiloboa (2005) 131 Cal.App.4th 674, 689-690.) Nonetheless, the Penal Code permits accusatory pleadings to be amended at any stage of the proceedings “for any defect or insufficiency” (§ 1009), and bars reversal of a criminal judgment “by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits” (§ 960). In view of these provisions, “[t]he proceedings in the trial court may constitute an informal amendment of the accusatory proceeding, when the defendant’s conduct or circumstances created by him amount to an implied consent to the amendment.” (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 213, p. 418.)
As the court explained in Sandoval, “[t]he informal amendment doctrine makes it clear that California law does not attach any talismanic significance to the existence of a written information. Under this doctrine, a defendant’s conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information.” (Sandoval, supra, 140 Cal.App.4th at p. 133.)
Instructive applications of the doctrine are found in People v. Hensel (1965) 233 Cal.App.2d 834 (Hensel), disapproved on another ground in People v. Triggs (1973) 8 Cal.3d 884, 894, fn. 7, and People v. Rasher (1970) 3 Cal.App.3d 798 (Rasher). In Hensel, the information charged the defendant with oral copulation (§ 288a), and the defendant waived a jury trial. (Hensel, supra, 233 Cal.App.2d at pp. 835-836.) Following a bench trial, the court found him guilty as charged. (Id. at p. 837.) At the urging of defense counsel, the court ultimately entered a judgment that the defendant was guilty of a lesser charge, namely, lewd public conduct (§ 647, subd. (a)). (Hensel, supra, 233 Cal.App.2d at p. 837.) On appeal, the defendant challenged the judgment, arguing that the offense of lewd public conduct was neither alleged in the information nor a lesser included offense of oral copulation. (Id. at pp. 837-840.) The court in Hensel rejected this contention, reasoning that the defendant, by his conduct, had consented to an informal amendment of the information.
In Rasher, the information charged the defendant with assault with a deadly weapon (§ 245). (Rasher, supra, 3 Cal.App.3d at p. 799.) Prior to trial, defense counsel asked the trial court to instruct the jury on the misdemeanor offense of brandishing a deadly weapon (§ 417), arguing that this offense was a lesser included offense of assault with a deadly weapon. (3 Cal.App.3d at pp. 801-802.) At trial, the parties presented evidence on the assumption that the defendant could be found guilty of either offense, but following the presentation of evidence, the defendant asked the trial court not to give an instruction on exhibiting a deadly weapon. (Ibid.) Over the defendant’s objection, the trial court instructed the jury on both offenses. (Ibid.)
After the jury found the defendant guilty of brandishing, he challenged his conviction on appeal. (Rasher, supra, 3 Cal.App.3d at p. 799.) The court noted that brandishing is not a lesser included offense of assault with a deadly weapon, but nonetheless concluded the defendant had been properly convicted: “In the light of the fact that defendant properly could have been charged with both a felony (§ 245) and the misdemeanor (§ 417) in the same information [citation]; because of defendant’s conduct at the outset, the trial proceeded as though defendant could have been convicted of either crime; and the fact of the overwhelming evidence of defendant’s guilt of the misdemeanor offense and that from the very beginning he was fully informed of the case he would be expected to meet at the trial and was in no manner misled in making his defense or as to any theory of defense which he himself injected into the trial, we conclude that the effect of all of the proceedings had in the trial court (even though at the conclusion defendant objected and tried to abandon the theory of ‘a lesser offense’) was to accomplish an informal amendment of the information. . . . Defendant came to court knowing that he was also to defend against the misdemeanor charge, he having introduced it as an issue at the outset of the trial; he had full opportunity to and did in fact offer such defense as he had and he was represented by capable counsel, thus there was no lack of due process. [Citation.]” (Rasher, supra, 3 Cal.App.3d at p. 803.)
In our view, the parties, by their conduct, amended the information to contain an allegation that appellant’s 1999 burglary conviction constituted a second strike under the Three Strikes law. Generally, section 969a authorizes the amendment of accusatory pleadings to allege a prior strike under the Three Strikes law. (People v. Sandoval, supra, 140 Cal.App.4th at p. 113.) Here, the pertinent information alleged that appellant had suffered the 1999 burglary conviction, but lacked a formal allegation that the conviction constituted a second strike under the Three Strikes law. Nonetheless, when the prosecutor conducted the arraignment and asserted that the information “apparently alleged a prior strike,” appellant responded that he understood the allegation and denied it. Prior to the bench trial on the prior conviction allegations, appellant responded to the prosecutor’s sentencing memorandum -- which proposed that appellant’s murder sentence be doubled due to the prior strike -- by asking the court to dismiss the second strike allegation, and the parties proceeded to trial on the assumption that if appellant had, in fact, suffered the 1999 burglary conviction, it constituted a second strike. Appellant never questioned the absence of a formal “second strike” allegation until his appeal.
Here, unlike Hensel and Rasher, the prosecutor first raised the allegation of a prior strike. However, the record establishes that throughout the proceedings, appellant knew that he faced a sentence for a second strike. Under Hensel and Rasher, his conduct effected an informal amendment to the information.
Pointing to People v. Haskin (1992) 4 Cal.App.4th 1434, appellant contends that he cannot reasonably be viewed as having consented to imposition of a greater sentence than supported by the formal allegations of the information. We disagree. There, the information alleged a one-year sentence enhancement for a prison term following a 1979 burglary conviction (§ 667.5, subd. (b)), but it lacked any formal allegation that the 1979 offense was a residential burglary. (Id. at p. 1437.) After the defendant admitted the allegation concerning the 1979 conviction, “as charged,” the trial court took judicial notice of records indicating that it was for a residential burglary and imposed a five-year enhancement pursuant to a different statute. (Ibid., italics deleted.) The court in Haskin concluded that the defendant, in admitting the formal allegation as charged, had neither admitted facts supporting the five-year enhancement nor consented to an amendment to the information. Here, unlike the defendant in Haskin, appellant acknowledged a prior strike allegation early in the proceedings, and challenged the allegation prior to trial.
Appellant suggests that the second strike was not adequately “pled and proved,” as required by the doubling provisions of the Three Strikes law, because the information was orally amended. This contention is meritless. (Sandoval, supra, 140 Cal.App.4th at p. 134 [when prior strike allegation is added to information pursuant to the informal amendment doctrine, any defect in the form of the amendment is harmless].)
Appellant also contends that his waiver of a jury trial on the prior conviction allegations encompassed only the allegations formally asserted in the information. The record belies this contention. After appellant waived a jury trial, he affirmatively invited the trial court to dismiss the second strike allegation, and never suggested that he sought -- or had been improperly denied -- a jury trial on this allegation. In sum, the trial court properly determined appellant’s sentence in accordance with the doubling provisions of the Three Strikes law.
2. Gun Use and Gang Enhancements
Appellant contends the trial court improperly stayed certain lesser gun use enhancements pursuant to subdivisions (b), (c), (d), and (e) of section 12022.53 after imposing sentence pursuant to the more stringent gun use enhancement in subdivision (d) of section 12022.53. He argues that the trial court was required to strike, rather than stay, the former enhancements. For reasons we explained in People v. Bracamonte (2003) 106 Cal.App.4th 704, 713, the trial court’s ruling was proper. Appellant urges us to reject Bracamonte on this matter. We decline to do so.
This issue is currently pending before our Supreme Court in People v. Gonzalez 146 Cal.App.4th 327, review granted Mar. 14, 2007, S149898.
Appellant also contends that the trial court’s imposition of a three-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(A) was improper because he received a life term for a gang-related felony. He is correct. (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1006-1007; People v. Flores (2005) 129 Cal.App.4th 174, 187; People v. Harper (2003) 109 Cal.App.4th 520, 526-527.) Respondent concedes this was error. We therefore order the three-year gang enhancement (§ 186.22, subd. (b)(1)(C)) stricken.
E. Pitchess Motion
Appellant requests that we independently review the in camera hearing at which the trial court denied his Pitchess motion. The motion sought discoverable material within the personnel records of LAPD officers Claude Guiral and Martin Higuera, who reported that appellant, when booked, said he would “take the first deal” offered to him because “[t]en years is better than life.” By a stipulation of the parties, the trial court ordered an in camera review of the officers’ records, limited to “citizen complaints within the preceding five year period . . . regarding falsity.” Following the in camera review on August 3, 2006, the court concluded there were no discoverable records.
We review this determination for an abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164. We have independently examined the materials the trial court scrutinized(People v. Mooc (2001) 26 Cal.4th 1216, 1229), and conclude there is no basis to disturb its ruling on the Pitchess motion.
DISPOSITION
The judgment is modified to reflect that the three-year gang enhancement (§ 186.22, subd. (b)(1)(C)) is stricken. In all other respects, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment to reflect this modification.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.