Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from a judgment of the Superior Court of Los Angeles County, Charles E. Horan, Judge. Los Angeles County Super. Ct. No. KA071472
Lorilee M. Gates for Defendant and Appellant Anne Marie Harrison.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Juan Tovar.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Juan Tovar and Anne Marie Harrison appeal from their convictions by jury verdict of crimes arising from the murder of James Ramos. Tovar argues the trial court erred in denying his motion to suppress statements he made while held in jail. We find no error in the admission of the statements.
Harrison argues the admission of Tovar’s jailhouse statements against her violated her rights under the Fifth, Sixth and Fourteenth Amendments, citing Bruton v. United States (1968) 391 U.S. 123 (Bruton) and People v. Aranda (1965) 63 Cal.2d 518 (Aranda). We find no error in the admission of the statements as to Harrison. She also challenges the sufficiency of the evidence to support a gang enhancement. We conclude that there was substantial evidence to support the enhancement. Finding that the statutory scheme satisfies the rational basis test, we reject Harrison’s equal protection challenge to the enhancement imposed pursuant to Penal Code section 12022.53, subdivision (e)(1). We conclude that the trial court failed to exercise its discretion in setting the amount of victim restitution to be paid by Harrison and reverse that part of the order. We remand for exercise of the trial court’s discretion in setting the restitution amount.
FACTUAL AND PROCEDURAL STATEMENT
James Ramos was the victim of a drive-by shooting. Michael Lopez testified that he, Tovar, and Harrison were driving around on the night of the murder. Tovar was armed. Harrison was driving, and all were high from smoking marijuana. They drove by the Ramos home, and Harrison said that was the house of the person who “ratted” on Dreamer, a member of the Happy Homes Puente gang (Happy Homes), of which Tovar also was a member. Harrison wanted to marry Dreamer. Once they were past the Ramos house, Tovar asked Harrison what she wanted him to do, whether she wanted him to shoot. Harrison said “yeah.” Harrison turned the car around and pulled up next to Ramos, who was outside working on his truck. Tovar fired a single shot, fatally wounding Ramos in the chest. In fact, nobody in the Ramos house had implicated the gang in a crime.
Tovar was convicted of first degree murder with firearm and gang enhancements. (Pen. Code, §§ 187, subd. (a), 186.22, subd. (b)(1)(A), 12022.53, subd. (d).) Harrison was convicted of second degree murder (§ 187, subd. (a)) with a 12022.53, subdivision (e)(1) enhancement. Tovar was sentenced to an aggregate term of 50 years to life in state prison and Harrison was sentenced to 40 years to life. Tovar and Harrison each filed a timely notice of appeal.
Statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
I
Appellant Tovar’s sole issue on appeal is his claim that statements he made in his jail cell, secretly recorded by the police, should have been suppressed. “When considering a trial court’s denial of a suppression motion, ‘we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence.’ [Citations.] We independently review the trial court’s application of the law to the facts. [Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 528-529.)
Before attempting to interview Tovar, investigating Detective Dan McElderry spoke with Michael Lopez, who identified Tovar as the shooter. Detective McElderry attempted to interview Tovar at the Youth Authority in April 2005. Tovar was incarcerated at the Youth Authority in connection with unrelated charges. McElderry told Tovar he was a suspect in a murder, that he was believed to be the shooter, and that two other suspects had been identified. He was shown photographs of Harrison and Lopez. Tovar refused to talk with the officers. Between April 14, 2005 and June 24, Tovar was removed from the Youth Authority pursuant to a removal order and brought to the sheriff’s station in the City of Industry. He refused to talk to investigating officers.
Renamed, effective July 1, 2005, the Division of Juvenile Justice of the Department of Corrections and Rehabilitation (DJJ). (Gov. Code, §§ 12838, subd. (a), 12838.13.) Since that change occurred after the relevant incident here, we use the designation Youth Authority.
Tovar was still in the custody of the Youth Authority when he was transferred pursuant to court order to the inmate reception center in downtown Los Angeles on June 24, 2005. He was 18 years old at the time. Although the affidavit in support of the removal order stated that Tovar was being moved in the hope he would be willing to be interviewed in a different environment, no interview with the officers took place.
Instead, Tovar was placed in a cell with Jonathan Miramontes, another Happy Homes gang member, and other persons. They were placed together because Detective McElderry believed that if the gang members were left in the cell, they would talk to each other. Detective McElderry did not come into contact with either Tovar or Miramontes and did not do anything to stimulate their conversation.
Miramontes was incarcerated on a domestic violence charge and was scheduled for release the following week. According to Detective McElderry, Miramontes was not given any inkling that he was going to be placed in a cell with Tovar, or that their conversation was going to be recorded. Tovar’s five-hour conversation with Miramontes was recorded. Tovar made admissions regarding his involvement in the shooting, and about the role played by Harrison.
Detective McElderry explained that he did not interview Tovar on this occasion because the recording of the conversation between Tovar and Miramontes had to be downloaded and reviewed. Because the recording was five hours long, the officers did not have time to listen to the recording, interview Tovar about the contents, and return him to the Youth Authority on the same day.
Before trial, Tovar moved to suppress the statement pursuant to section 1538.5 on the ground that his transfer from the Youth Authority to the jail violated his Fourth Amendment rights. Detective McElderry and Tovar testified. The trial court denied the motion on the ground that Tovar had no reasonable expectation under the Fourth Amendment that, as a suspect in a homicide, he would not be interviewed or moved temporarily from one location to another. The fact that the affidavit in support of the removal order said only that Tovar was to be interviewed, rather than placed in a cell and his conversations recorded, was not found a basis for relief under the Fourth Amendment.
Tovar acknowledges that we are bound to follow the decision of our Supreme Court in People v. Davis, supra, 36 Cal.4th 510. In that case, Davis and two confederates were recorded while in adjoining cells, before any of them had been charged with a crime. The court examined conflicting federal and state decisions as to whether a legitimate security reason is required for a search of a detainee. The Supreme Court rejected Davis’s argument that his expectation of privacy under the Fourth Amendment precluded surreptitious recording of his jail conversations unless required for jail security. (Id. at pp. 525-526.) It concluded: “persons held pretrial in a jail . . . have no expectation of privacy . . . .” (Id. at p. 527.)
He explains that he seeks to preserve that argument because the United States Supreme Court has not yet ruled whether there is a distinction under the Fourth Amendment between jailhouse eavesdropping conducted for security or for investigative purposes.
The Davis court held that under Hudson v. Palmer (1984) 468 U.S. 517, the purpose of the search has no bearing on whether a legitimate expectation of privacy exists. (People v. Davis, supra, 36 Cal.4th at p. 528.) It explained: “In other words, if a pretrial detainee can reasonably expect that his cell may be monitored or searched for security reasons, then he cannot reasonably expect any privacy. It is the fact that an intrusion may occur, not the reason for the intrusion, that vitiates the expectation of privacy.” (Ibid.)
We follow Davis. Tovar had no reasonable expectation of privacy in the jailhouse conversation with Miramontes. We find no Fourth Amendment violation.
The transcript of the conversation demonstrates that Tovar and Miramontes commented on the presence of a speaker in the cell, but continued to discuss the murder.
II
Harrison argues that Tovar’s statements to Miramontes which incriminated her were improperly admitted over defense objection. In one challenged statement, Tovar told Miramontes, “That’s why I don’t think she would snitch on me ‘cause passed by and she’s like look it that’s that fool that snitched. That’s the fool that snitched on Dreamer, right there this and that.” He asked Harrison whether he should shoot. According to Tovar’s statement, Harrison said: “She’s like “Yeah. F---’—she’s like, ‘You want him?’ . . . ‘Alright, let’s go.’” Tovar told Miramontes that Harrison pulled up on the side of the street and that he fired one shot, and they left.
A second passage cited by Harrison concerned statements by Tovar as to whether Harrison would “rat” on him. Tovar said that “it was all her idea . . . .” Tovar continued to say that if Harrison talked about the murder, she would have to tell everything that happened: “[If] she’s gonna rat, she’s gonna have to tell them everything that happened, homie, you know what I’m saying? And if she tells them everything then she’s gonna have to go down too, you know what I’m saying. That’s why I don’t think she’s stupid enough to do that ‘cause if she does that and tells them the whole story and everything, then that bitch is going down too. But even if she does I’m still gonna deny that shit. I ain’t gonna f--in’ say, ‘Oh, alright’ you know what I’m saying. And the jury’s still got to believe that bitch, homie.”
Harrison argues that the admission of these statements violated her rights under the Fifth, Sixth and Fourteenth Amendments, citing Bruton, supra, 391 U.S. 123 and Aranda, supra, 63 Cal.2d 518. “The Aranda/Bruton rule bars admission in a joint trial of one defendant’s out-of-court confession that powerfully and facially incriminates a codefendant, even if the court instructs the jury to consider the confession only against the declarant. (Bruton, supra, 391 U.S. at pp. 135-136; Aranda, supra, 63 Cal.2d at pp. 529-530.) The rule recognizes the jury may struggle to obey such a limiting instruction when both defendants are in the courtroom, tried for the same crime, and an unfair danger exists the jury will improperly consider the hearsay confession against the nondeclarant codefendant. (Bruton, supra, 391 U.S. at pp. 135-136.) To avoid this danger, the court must either sever the trials or redact the statement to avoid references to the codefendant. (Aranda, supra, 63 Cal.2d at pp. 530-531.) The rule thus presumes the statement is an admissible admission by the declarant and inadmissible hearsay against the codefendant. (People v. Fletcher (1996) 13 Cal.4th 451, 455.)” (People v. Smith (2005) 135 Cal.App.4th 914, 921-922.)
The court in Smith recognized that under Aranda/Bruton,“if the statement is admissible against the codefendant under a hearsay exception, and its admission otherwise survives confrontation analysis, then the jury may consider it against the codefendant; no reason exists for severance or redaction. (People v. Greenberger (1997) 58 Cal.App.4th 298, 331-332 (Greenberger).)” (People v. Smith, supra, 135 Cal.App.4th at p. 922.)
Here, the statement was not redacted, Harrison’s motion to sever her trial was denied, and Tovar exercised his right to remain silent. From this, Harrison contends she was denied her right to confront and cross-examine Tovar about the statements. She argues that the error was prejudicial despite Michael Lopez’s testimony incriminating her. The reason is that his testimony would have been viewed with doubt since he had entered into a plea bargain to avoid prosecution and because Lopez had failed to implicate Harrison in his first statement to the police.
The People sought admission of Tovar’s statements incriminating Harrison under Evidence Code section 1230, the declaration against interest hearsay exception. Harrison argues this exception applies only to portions of the statement that are specifically disserving to the declarant’s interest, citing People v. Smith, supra, 135 Cal.App.4th 914, 922 and People v. Leach (1975) 15 Cal.3d 419, 441. Because Tovar’s statement also laid blame on Harrison, she contends it was not specifically disserving to him, relying upon People v. Duarte (2000) 24 Cal.4th 603, 612-613.)
The proponent of evidence under Evidence Code section 1230 “must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Duarte, supra, 24 Cal.4th at pp. 610-611.)
Tovar was unavailable as a witness because he asserted his right not to testify. We move to the second step of the analysis. Respondent argues that Tovar’s statements satisfied the requirements for a declaration against interest under Evidence Code section 1230 because he claimed responsibility as the shooter and Harrison’s statements provided the motive for the shooting. Under the rule explicated in People v. Leach, supra, 15 Cal.3d 419, “a hearsay statement ‘which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible.’ [Citations.]” (People v. Duarte, supra, 24 Cal.4th at p. 612, quoting In re Larry C. (1982) 134 Cal.App.3d 62, 69.)
Evidence Code section 1230 provides in pertinent part: “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, . . . so far subjected him to the risk of . . . criminal liability, . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.”
Respondent contends that the statements were “specifically disserving” to Tovar as well as to Harrison. Respondent cites our opinion in Greenberger, supra, 58 Cal.App.4th 298, in which we found that portions of a statement implicating a coconspirator or aider and abettor are admissible under section 1230 if they are an integral part of a self-inculpatory statement. (Id. at pp. 340-341.)
In People v. Duarte, supra, 24 Cal.4th 603, one of the participants in a robbery made statements to a police officer suggesting that he participated in a drive-by shooting only by mistake (it was the wrong house), that he fired in retaliation for an earlier shooting, that he did not want to kill anybody or take a chance of hurting anybody, and that he aimed high, implying that he was not responsible for the injury suffered by the victim since there was evidence of two shooters. (Id. at p. 613.) The Supreme Court found these statements described the declarant’s role in the shooting sympathetically and minimized his responsibility, implying that others shared a greater responsibility. It concluded that they could not be characterized as “specifically disserving” of the declarant’s penal interests, and that it was error to admit them under Evidence Code section 1230. (Ibid.)
Unlike the declarant in Duarte, Tovar did not attempt to shift the blame for the shooting from himself onto Harrison. In the first statement, after saying that Harrison told him to shoot, Tovar told Miramontes: “I was all mad anyways. I wanted to shoot somebody anyway.” As in Greenberger, the portions of the challenged statements implicating the codefendant Harrison were an integral part of Tovar’s statement accepting responsibility for shooting Ramos, and explaining that the motivation was Harrison’s statement that he should do it. The second statement essentially repeats the first, with Tovar saying that if Harrison spoke to the police (as he suspected), she would have to reveal that he shot Ramos because she told him to do so. We conclude that Tovar’s statements were specifically disserving of his penal interest.
The final step of the analysis under Evidence Code section 1230 is whether there were sufficient indicia of the trustworthiness of the statement. (People v. Duarte, supra, 24 Cal.4th at p. 614.) We must take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant. (Ibid.) In Duarte, the court found indications of unreliability in the declarant’s attempts to shift blame or curry favor with the authorities. (Id. at pp. 614-615.) As we have discussed, Tovar did not attempt to shift the blame to Harrison. Unlike the declarant in Duarte who said he did not want to hurt anyone so he shot at the roof of the target house (id. at pp. 615-616), Tovar told Miramontes that he “wanted to shoot somebody anyway.”
A second factor considered by the Duarte court was that the declarant’s statements were made to police officers shortly after he had been apprehended, arrested, and taken into custody, and therefore were “‘made in the coercive atmosphere of official interrogation.’” (Duarte, supra, 24 Cal.4th at p. 617, quoting Dutton v. Evans (1970) 400 U.S. 74, 87.) Here, Tovar’s statements were made in conversation with his fellow gang member, Miramontes, and were not the result of police interrogation. Miramontes and Tovar were unaware that their conversation was being recorded, and Miramontes was not acting as an agent of the investigating officers.
We conclude that the fact that Tovar did not attempt to shift blame, and that he volunteered his statements rather than making them in the course of interrogation, provide the indicia of reliability absent in Duarte. The statements qualified under the Evidence Code section 1230 hearsay exception.
Harrison also argues that the admission of these statements violated her Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36, 68. She contends that Miramontes was acting as an agent of law enforcement, and therefore, the statement was testimonial and falls within the Crawford analysis. We disagree.
“Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial. ‘[T]he court reasoned [that] the clause’s express reference to “witnesses” reflects its focus on those who “‘bear testimony,’” which typically is “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” (Crawford, supra, 541 U.S. 36, 51, quoting Webster, An American Dict. of the English Language (1828).) “An accuser who makes a formal statement to government officers,” said the court, “bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (541 U.S. at p. 51.)’” (People v. Geier (2007) 41 Cal.4th 555, 597, italics added.)
The Crawford court did not attempt a definitive description of what constitutes a “testimonial” statement for purposes of its confrontation clause analysis. (People v. Cage (2007) 40 Cal.4th 965, 969.) But it identified a “core class” of testimonial statements such as affidavits, custodial examinations, “or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” (Crawford, supra, 541 U.S. at p. 51, see also Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266, 2275, 2278] [statements made in response to police questioning].) There was no evidence to establish that Miramontes was a police agent. If he were, the constitutional issues presented would be a violation of the right to counsel under the progeny of Massiah v. United States (1964) 377 U.S. 201, rather than Crawford. Miramontes was not asked to question Tovar. Tovar voluntarily made statements to Miramontes incriminating himself and Harrison. There is no evidence that Tovar would reasonably expect that his conversation with Miramontes would be used prosecutorially. Crawford is not implicated by Tovar’s nontestimonial statement.
Since Crawford is not applicable, the appropriate analysis is under Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) and Lilly v. Virginia (1999) 527 U.S. 116 (Lilly). “‘The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’” (Lilly, supra, 527 U.S. at pp. 123-124, quoting Maryland v. Craig (1990) 497 U.S. 836, 845.)
“The Roberts court recognized the two means by which the confrontation clause restricts the range of admissible hearsay. First, the proponent of the evidence must establish the necessity for the introduction of this evidence. This usually, but not always, means that the declarant is unavailable. Second, the hearsay must have adequate indicia of reliability to justify dispensing with the requirement of confrontation. ‘The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” . . . [¶] . . . Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.’ (Ohio v. Roberts, supra, 448 U.S. at p. 66, citation and fn. omitted.)” (Greenberger, supra, 58 Cal.App.4th at p. 327.)
In Lilly, one of three codefendants responsible for a series of robberies and a murder gave statements during interrogations, implicating himself in some aspects of the crime, exculpating himself in other aspects, and inculpating his codefendants in several respects. (Lilly, supra, 527 U.S. at pp. 118-122.) A plurality of the Supreme Court concluded that “A statement . . . that falls into the category summarized in Lee—‘a confession by an accomplice which incriminates a criminal defendant’ [citation]—does not come within a firmly rooted hearsay exception.” (Id. at p. 134, fn. 5.) The plurality went on to explain that this conclusion does not compel a blanket ban on the use of accomplice statements incriminating a defendant: “Rather, it simply means that the government must satisfy the second prong of the Ohio v. Roberts[, supra,] 448 U.S. 56, test in order to introduce such statements.” (Id. at p. 134, fn. 5.)
The Lilly plurality observed: “It is highly unlikely that the presumptive unreliability that attaches to accomplices’ confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions that implicate the core concerns of the old ex parte affidavit practice—that is, when the government is involved in the statements’ production, and when the statements describe past events and have not been subjected to adversarial testing.” (Lilly, supra, 527 U.S. at p. 137.) It found irrelevant that other trial evidence corroborated portions of the statements. (Id. at pp. 137-138.) It also rejected the following as indicia of trustworthiness: the declarant’s consciousness of his Miranda rights; his knowledge that he was exposing himself to criminal liability, and the absence of an express promise of leniency. (Id. at pp. 138-139.)
Miranda v. Arizona (1966) 384 U.S. 436.
The plurality in Lilly concluded that the statements were not so inherently reliable that there was no need to subject them to adversarial testing at trial. It based this conclusion on the fact that the declarant was in custody for his involvement in, and knowledge of serious crimes, he made his statements under the supervision of governmental authorities, and he was primarily responding to the officers’ leading questions. (Lilly, supra, 527 U.S. at p. 139.) A majority of the Lilly court concluded that the admission of the confession violated the defendant’s confrontation rights and reversed the conviction. (Ibid.)
These factors are not present here. Tovar was aware that he was a suspect in the Ramos murder when he made his statements to Miramontes. But the statements were not made in interrogation, and were thus not in response to leading questions by an officer. Tovar volunteered the statements to his fellow gang member. We conclude that these circumstances provide sufficient indicia of reliability to support admission of the statement. We find no confrontation clause violation. The statements were admissible against Harrison.
III
Harrison challenges the sufficiency of the evidence to support the jury’s finding that the crime was committed in furtherance of a criminal street gang under section 186.22, subdivision (b)(1). She contends that the only evidence on this issue was that she appeared in photographs with young men believed to be gang members.
We review the finding under section 186.22 for substantial evidence. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) Section 186.22, subdivision (b)(1) imposes additional punishment for “any person who is 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 . . . .” In contrast to the enhancement charged under subdivision (a) of section 186.22, the enhancement charged here under subdivision (b)(1) of section 186.22 does not require active gang participation. (People v. Bautista (2005) 125 Cal.App.4th 646, 656, fn. 5.)
Michael Lopez testified that Harrison identified the Ramos house as the home of a person who had “ratted” on a “homie” named Dreamer. He testified that after driving by the house, Tovar asked Harrison what she wanted him to do, whether he should shoot the man. She said, “Yeah.” Lopez testified that Dreamer and Tovar were Happy Homes gang members. It was stipulated that Happy Homes is a criminal street gang.
A search of Harrison’s bedroom in her home revealed papers with gang writing, including some saying “Happy Homes”; a newspaper article relating to a murder for which a Happy Homes member was convicted; photographs of Harrison with known Happy Homes gang members throwing gang signs; and other photographs of Happy Homes gang members. Detective Steven Kays, a gang expert with the Los Angeles County Sheriff’s Department, testified about the gang significance of the items seized from Harrison’s home. He identified persons in the photographs seized from Harrison’s room as gang members. Kays explained that gestures made by gang members in some of the photographs were gang signs. He interpreted writings in a notebook found in Harrison’s room as making reference to the Happy Homes clique of the Puente gang. In one photograph, Kays explained that the man with Harrison had a Happy Homes gang tattoo. Tovar had Happy Homes gang tattoos.
Based on this evidence, Kays concluded that, in his opinion, Harrison was an associate of the Happy Homes gang before the Ramos shooting. He would now consider her to be a member of the gang. Kays based this opinion on the photographs of Harrison with the gang members and evidence of her close association with them. Detective Kays testified that gang members do not allow themselves to be photographed throwing gang signs with people they do not trust. Since Harrison appeared in this type of photograph, Kays concluded that she was at least an associate of the gang.
Kays testified that in his opinion, the shooting was committed for the reputation of the Happy Homes gang. He formed this opinion on the evidence that Harrison said that the Ramos house was the house of someone who had “ratted” on Dreamer, and that she drove the car back so Tovar could shoot Ramos, Kays also placed significance on the fact that Harrison identified the Ramos house as the location of a person who had snitched on a gang member with the knowledge that Tovar, a gang member himself, was armed. The crime was committed in Happy Homes territory. Kays explained that witnesses are killed by gang members to discourage members of the public from coming forward with evidence against the gang.
Expert testimony may be admitted to establish the elements of the street gang enhancement. (People v Gardeley (1996) 14 Cal.4th 605, 616-617.) Evidence of Harrison’s close association with gang members, together with her statement identifying the Ramos house as the home of a person who incriminated a member of the gang, supported the jury’s finding that the murder was committed for the benefit of the Happy Homes gang under section 186.22, subdivision (b)(1). (See People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
IV
Harrison argues that the enhancement under section 12022.53, subdivision (e)(1) violates her federal constitutional right to equal protection because it “punishes aiders and abettors of a principal using a firearm for the benefit of a ‘criminal street gang’ more severely than aiders and abettors of a principal using a firearm for the benefit of some other type of criminal enterprise such as a mob or mafia group, a drug cartel, a terror group or a racist group.” She acknowledges that similar challenges have been rejected in People v. Gonzales (2001) 87 Cal.App.4th 1 and People v. Hernandez (2005) 134 Cal.App.4th 474.
In People v. Gonzales, supra, 87 Cal.App.4th 1, the defendants raised a broad equal protection argument: that an aider and abettor of a gang member is similarly situated to aiders and abettors of firearm users who are not members of a criminal street gang. (Id. at p. 13.) We concluded that defendants failed to make the requisite threshold showing that they were similarly situated to other aiders and abettors: “Unlike other aiders and abettors who have encouraged the commission of a target offense resulting in a murder, defendants committed their crime with the purpose of promoting and furthering their street gang in its criminal conduct. The 25-year-to-life enhancement may not be imposed on an aider and abettor under section 12022.53 unless the jury finds the crime comes within section 186.22, subdivision (b).” (Id. at p. 13.)
In Hernandez, the equal protection argument was the same as here: that an aider and abettor of a criminal street gang should not be more severely punished than aiders and abettors of other outlaw criminal organizations. The court distinguished our opinion in Gonzales because it was faced with a narrower equal protection argument: “[Hernandez] argues section 12022.53 violates the guarantee of equal protection of the law because it unreasonably discriminates between aiders and abettors of firearm users who commit murder for the benefit of a ‘criminal street gang’ and aiders and abettors of firearm users who commit murder for the benefit of equally dangerous criminal associations such as drug cartels, White supremacist groups and terrorist organizations. [¶] Certainly a cogent argument can be made those who aid and abet a murder for the benefit of a ‘criminal street gang’ are similarly situated with those who aid and abet a murder for the benefit of other outlaw organizations. Indeed it could be argued the two classes of aiders and abettors are so similar section 12022.53 does not distinguish between them and there is no equal protection issue. Assuming Hernandez has established disparate treatment of similarly situated aiders and abettors his equal protection claim nevertheless fails.” (People v. Hernandez, supra, 134 Cal.App.4th at p. 481, fn. omitted.)
The rational basis test applies to an equal protection challenge to a criminal statutory scheme where there is no claim that the classification at issue involves a suspect class, or more harsh treatment for a juvenile than an adult. (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Since no such claim is made here, we apply the rational basis test. That test was applied by the court in Hernandez. Itreasoned: “Clearly the Legislature had a rational basis for imposing a 25 years to life enhancement on one who aids and abets a gang-related murder in which the perpetrator uses a gun, regardless of the relationship between the aider and abettor and the perpetrator. As we previously observed, the purpose of this enhancement is to reduce through punishment and deterrence ‘the serious threats posed to the citizens of California by gang members using firearms.’ One way to accomplish this purpose is to punish equally with the perpetrator a person who, acting with knowledge of the perpetrator’s criminal purpose, promotes, encourages or assists the perpetrator to commit the murder. It is irrelevant to this purpose whether the aider and abettor was a hard-core gang member or merely a ‘wannabe.’” (People v. Hernandez, supra, 134 Cal.App.4th at p. 483, fn. omitted.)
We conclude that the approach of the court in Hernandez is appropriate here. While it may be difficult to distinguish between criminal street gangs and other outlaw criminal organizations, we agree with Hernandez that the Legislature had a rational basis for punishing crimes committed to further a street gang more severely. Harrison’s equal protection challenge fails on that basis.
V
Harrison also challenges the court’s order that she pay victim restitution of $79,355, of which $12,400 was made joint and several with Tovar, who was sentenced before Harrison. According to a representative of the California Victim Compensation Board, the total compensation paid for victim restitution had not been assessed when Tovar was sentenced. Harrison argues that the unequal apportionment was arbitrary and unfair.
Respondent concedes that the trial court apparently was unaware that it retained jurisdiction under section 1202.46 to increase the restitution order as to Tovar once the final figures were available. Since the court was apparently unaware of the scope of its discretion, respondent suggests that the matter be remanded to allow it to exercise that discretion. We agree, reverse the restitution award, and remand for the trial court to exercise its discretion in determining the amount of the award as to Harrison. (See People v. Terrell (1999) 69 Cal.App.4th 1246, 1255.)
DISPOSITION
Tovar’s conviction is affirmed. Harrison’s conviction is affirmed, but her case is remanded for resentencing in order that the trial court may exercise its discretion as to the amount of victim restitution.
We concur: MANELLA, J., SUZUKAWA, J.