Summary
In People v. Martinez (Jan. 7, 2008, B193631) [nonpub. opn.], we affirmed Martinez's prior conviction of first degree murder for the shooting death of Sebero Ruiz, which occurred on June 12, 2003, after the instant offense.
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NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA249009. George Gonzalez Lomeli, Judge.
Waldemar D. Halka, 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, Michael C. Keller and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Defendant appeals his jury conviction for one count of first-degree murder (Pen. Code, § 187, subd. (a)) and one count of unlawful possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1). On appeal, defendant argues that (1) the trial court erred in permitting witnesses who had claimed a Fifth Amendment privilege to testify; (2) the trial court failed to instruct the jury properly; (3) the first degree murder conviction should be reduced to second degree murder because insufficient evidence supports the jury’s finding the murder was premeditated; and (4) insufficient evidence supports the gang enhancement. We affirm.
All statutory references herein are to the Penal Code unless otherwise noted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Prosecution Case.
On June 12, 2003, at approximately 4:50 p.m., Sergio Guzman walked to the Family Farms Market at 43rd and Central in Los Angeles with Sebero Ruiz, the victim. They were going to buy beer; each of them had already had three beers. Ruiz had been involved in an automobile accident when he was 15, and was partially paralyzed on his left side and had a speech impediment. He did not belong to a gang.
Guzman saw a blue car drive by. One of the occupants yelled at them, “where are you from,” which Guzman understood to mean “what gang do you belong to?” Guzman and Ruiz did not respond, but went inside, where they bought beer. As they were leaving the market, Guzman told Ruiz to wait while he bought a lottery ticket. Ruiz walked outside, and Guzman heard gunfire. He saw Ruiz lying on the ground.
Later that day, the police showed him some photographs. Guzman identified two individuals, a man in the car who yelled at them, and the man who was the shooter, whom Guzman had never seen before in the neighborhood. Guzman also told police there was a woman seated in back of the car. At trial, Guzman identified defendant in court as the shooter.
Maria Engracia Martinez was standing in the door of the market when the shooting took place. She had seen the victim at the store before. Maria Martinez did not hear any argument before the shots were fired. She saw the victim with his arms raised above his shoulders, and the shooter was saying something to the victim, although she could not hear what was being said. The shooter had his back to her. When the police showed her photographs, she identified the shooter in two photographs because of his broad shoulders. She did not identify defendant in court.
Maria America Pacheco was also outside the market and witnessed the shooting. She saw the victim at the Family Farms market every day. She never saw him argue or get violent with anyone, and he was always by himself. On the day of the shooting, she saw Guzman and Ruiz go towards the market when she heard someone from a car yell something at them, and Guzman answered back very quickly and gave the car the finger. Guzman and the victim went into the store. The car drove by, turned around, parked, and one of the men got out of the car and walked towards the store. She saw the man who got out of the car shoot the victim three times. The shooter was in his 30s, very strong, very tall. While he was walking into the market, he was facing her. At trial, she identified defendant as the shooter.
Cristal Campos was a friend of Romulo Nava, Jr., who was the other man in the car with defendant. Nava’s nickname was “bullet” and “junior,” and he belonged to the BMS, or Barrios Majados, gang. At the time of the shooting, Nava was dating Brenda Martinez, who was a member of the Eastside Trese gang. The two different gangs did not get along. On the day of the shooting, Campos was at Nava’s home drinking and smoking marijuana. Brenda Martinez and Nava left in a blue car that belonged to Nava’s father to buy some beer. When they returned about one-half hour later, they were with three other men; Campos did not know whether one of them was the defendant. She knew there had been a shooting because she heard the helicopter and when she got back, Brenda Martinez told her to turn on the TV.
Officer David Nunn of the Los Angeles Police Department responded to the call to the Family Farms Market. He saw a man’s body with three gunshot wounds lying in the doorway of the market, and recovered three bullet casings nearby. He obtained a surveillance video from the store’s manager. He observed that the blue car involved in the shooting had some window tint that did not match, and a different hubcap on one of the rear tires. The police found the car the next day at 48th and Ascot, in front of the house where Nava lived.
After watching the video several times, Officer Nunn came to the conclusion that he recognized defendant, who was known as “Tank,” as the shooter. Prior to the shooting, Officer Nunn had had some contacts with defendant, and had entered information on defendant into the gang database. At the time of those contacts, defendant was wearing gang attire and he was a member of the Barrios Majados gang, which Officer Nunn knew from his tattoos. At trial, defendant showed the jury the insides of his arms, which had tattoos on them. Officer Nunn believed the shooting was gang related because of the presence of graffiti. At the time of the shooting, four gangs claimed turf in the area around the market. Of these, two of them, Barrios Majados and the 28th Street gang, were involved in a rivalry.
Officer Miguel Terrazas of the Los Angeles Police Department viewed the store security video and recognized defendant. Officer Terrazas had made a vehicle stop of defendant in 2002. At the time, defendant told Officer Terrazas that he belonged to the BMS gang, and Officer Terrazas photographed defendant. At trial, Officer Terrazas observed that defendant looked thinner and had longer hair. At the time of the traffic stop, defendant was five-nine and weighed 300 pounds.
Police searched Nava’s home on June 13, 2003 and recovered photographs in which Nava was making gang signs.
Officer Gerald Ballesteros testified as a gang expert that the Barrios Majados (BMS) gang was established in 1989. The gang has been involved in murders, narcotics sales, auto theft, firearm theft, and street robberies. Nava, who had gang tattoos, was a member of BMS. Defendant had similar gang tattoos. There were approximately 100 members of the BMS gang at the time of the shooting, and there was a rivalry between BMS and 38th Street Gang. The graffiti on the wall indicated that both gangs were claiming the territory as their own. The question “where are you from?” is often a prelude to a shooting. In Officer Ballesteros’s opinion, the murder was committed for the benefit of a street gang because it preserved the gang’s territory and reputation.
2. Defense Case.
Defendant’s uncle, Javier Morales Orea, ran a taxi business in Mexico City. During 2002 and 2003, defendant worked for him and lived at his grandmother’s house in Mexico City.
Ariceli Rendon was defendant’s girlfriend in Mexico. She had his child, and lived with him at his grandmother’s house. At trial, she identified four photographs of defendant that were taken at his grandmother’s house in Mexico on May 10, 2003.
The jury convicted defendant of one count of first degree murder and one count of being a convicted felon in possession of a firearm. The jury also found true the three firearm enhancements (12022.53, subd. (d), § 12022.53, subd. (c), and § 12022.53, subd. (b)), and that the murder was committed for the benefit of a criminal street gang.
DISCUSSION
I. THERE WAS NO ERROR IN PERMITTING IMMUNIZED WITNESSES TO TESTIFY.
Defendant argues the trial court violated his constitutional rights under the due process and confrontation clause by permitting the prosecution to present the testimony of Brenda Martinez and Romulo Nava knowing that the witnesses had asserted their Fifth Amendment privilege. He also contends the evidence was irrelevant and prejudicial under Evidence Code section 352, and that the trial court failed to give an instruction to the jury not to draw any adverse inferences from the witnesses’s failure to testify.
A. Factual Background.
During trial, the prosecution advised the court that it had offered use immunity to Brenda Martinez and Romulo Nava, two witnesses it intended to call. The court was concerned with compromising the witnesses’s appellate rights, as both had been convicted for their participation in the shooting and their convictions were currently pending on appeal. The court stated it was inclined to find the witnesses had a Fifth Amendment privilege because of their pending appeals, but that because the prosecution was offering immunity under section 1324, the privilege no longer existed and the witnesses would be required to testify.
Outside the presence of the jury each witness took the stand and asserted the privilege. The court granted the prosecution’s request for use and derivative use immunity, and made a finding that the witnesses no longer had a valid Fifth Amendment privilege. The witnesses nonetheless refused to testify when called to the stand, instead responding to the four questions put to each of them, “I refuse to testify” or “I refuse to answer.”
B. Discussion.
Under Evidence Code section 913, neither the court nor a party may comment upon a witness’s exercise of the Fifth Amendment privilege, nor may the trier of fact draw any inference from an assertion of the privilege. (Evid. Code, § 913.) Therefore, a witness should not be placed on the witness stand to claim the Fifth Amendment privilege when it is already known that the witness will refuse to testify. (People v. Smith (2007) 40 Cal.4th 483, 516-517; People v. Mincey (1992) 2 Cal.4th 408, 442 (Mincey).) Instead, the trial court must conduct initial inquiries to test the claim of privilege outside the presence of the jury. (Mincey, supra, 2 Cal.4th at p. 441; People v. Lopez (1999) 71 Cal.App.4th 1550, 1555 (Lopez).)
Once the witness is granted immunity, however, his or her testimony is compelled because the witness no longer has a privilege against self-incrimination. (United States v. Washington (1977) 431 U.S. 181, 188; see also Kastigar v. United States (1972) 406 U.S. 441, 453; § 1324.) Under that circumstance, Evidence Code section 913 no longer applies, and the jury is entitled to draw a negative inference from the witness’s refusal to testify. (Lopez, supra, 71 Cal.App.4th at p. 1554.) “Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury. . . . But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” (Lopez, supra, 71 Cal.App.4th at p. 1554.)
Here, once the witnesses were granted immunity, they no longer had a privilege not to testify, and the trial court did not err in permitting them to take the stand. The jury was entitled to hear their refusal to testify and draw inferences from this conduct. (Lopez, supra, 71 Cal.App.4th at p. 1554.) For this reason, no special instruction was required regarding the evidence.
Furthermore, neither the Confrontation Clause nor Evidence Code section 352 compel reversal. Defendant’s Evidence Code section 352 argument is misplaced because any negative inference the jury would draw from the witnesses’s refusal to testify is permitted under Lopez and therefore cannot form the basis of a relevancy or prejudice claim.
The witnesses’s refusal to testify does not implicate either the Confrontation Clause or the rule of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The Sixth Amendment right to confrontation provides that a defendant in a criminal case has a right “‘to be confronted with the witnesses against the defendant.’” (California v. Green (1970) 399 U.S. 149, 155.) The purpose of confrontation is to ensure reliability by means of the oath; to expose the witness to cross-examination, and to permit the trier of fact to assess credibility. (Id. at p. 158.) In Crawford, supra, Supreme Court held that with respect to hearsay statements of a witness, “[w]here testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. . . .” (Id. at p. 1374.) Here, however, there were no hearsay statements of these witnesses which the prosecution sought to introduce; all that was presented was their refusal to respond to questioning.
II. THERE WAS NO INSTRUCTIONAL ERROR RELATING TO VOLUNTARY MANSLAUGHTER.
Defendant makes three arguments of error relating to the trial court’s instructions on the substantive elements of murder and manslaughter, and contends that reversal is also required based upon cumulative prejudice from these instructional errors. He first contends the trial court erred in refusing to instruct on voluntary manslaughter as a lesser included offense of murder because there was sufficient evidence of provocation. He also contends that because malice aforethought requires a specific intent to kill in the absence of sudden quarrel, heat of passion, and imperfect self-defense, the trial court was required to separately instruct that the prosecution had the burden of establishing lack of sudden quarrel, heat of passion, and imperfect self-defense. He finally contends that the trial court erred in failing to instruct on the meaning of “heat of passion,” thereby leaving the jury to decide for itself what constituted heat of passion. We disagree with these arguments.
A. Insufficient Evidence of Provocation to Warrant Instruction on Voluntary Manslaughter.
Voluntary manslaughter is a lesser included offense of murder. (People v. Lasko (2000) 23 Cal.4th 101, 108.) A defendant is guilty of voluntary manslaughter when he or she commits an unlawful killing either with intent to kill or with conscious disregard for life but lacks malice, either because (1) he or she acts in unreasonable self-defense or (2) the killing results from a sudden quarrel or heat of passion on sufficient provocation. (Ibid.)
A killing may therefore be reduced from murder to voluntary manslaughter if it occurs without malice “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a); People v. Lee (1999) 20 Cal.4th 47, 59; People v. Barton (1995) 12 Cal.4th 186, 199.) To reduce the crime to voluntary manslaughter, the provocation that incites the killer to act must be caused by the victim or reasonably believed by the accused to have been engaged in by the victim. “The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (People v. Manriquez (2005) 37 Cal.4th 547, 583-584.)
The trial court is obliged to give, sua sponte, instructions on all theories of lesser included offenses that are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 159-160, 162.) “In a murder case, this means that both heat of passion and unreasonable self-defense, as forms of voluntary manslaughter, must be presented to the jury if both have substantial evidentiary support.” (Id. at p. 160.) However, the evidence of the lesser offense must be substantial, that is evidence from which a jury of reasonable persons could conclude that the lesser offense rather than the greater offense was committed. (Id. at p. 162; People v. Manriquez, supra, 37 Cal.4th at p. 584.) If there is no evidence of provocation, the trial court need not instruct on voluntary manslaughter. (People v. Johnson (1993) 6 Cal.4th 1, 43; People v. Morse (1969) 70 Cal.2d 711, 736.)
Here, the evidence that would support provocation in this case was limited to Guzman giving the occupants of the car the finger and a verbal exchange when defendant confronted the victim at the door of the supermarket. This conduct was insufficient to arouse the passions of an ordinarily reasonable person under the circumstances. (People v. Manriquez, supra, at p. 584.) Indeed, the evidence shows that defendant and his male accomplice attempted to provoke his victims twice, and their response -- the finger and an exchange of words that was not loud enough to be heard by bystanders -- are commonplace responses and not sufficiently provocative that it could be expected to cause defendant to “‘act rashly and without deliberation and reflection, and from such passion, rather than from judgment.’” (People v. Barton (1995) 12 Cal.4th 186, 201.)
B. No Rios Error.
Defendant argues that the trial court erred under People v. Rios (2000) 23 Cal.4th 450 (Rios) by failing properly to instruct on malice aforethought because under Rios, in order to convict defendant, the prosecution had to prove the killing was not committed upon a sudden quarrel or heat of passion. We disagree.
In Rios, supra, the defendant was tried solely on a theory of voluntary manslaughter and argued that provocation and heat of passion were elements of the offense. (Id. at pp. 455, 459.) To address the argument, the court considered the long-standing relationship of voluntary manslaughter to murder, and reiterated the rule that even where the defendant has an intent to kill, he or she may be found to have acted without malice if he or she acted in a sudden quarrel or heat of passion. (Rios, supra, at pp. 460-461.) Where both murder and manslaughter are at issue, unless the prosecution evidence establishes that the killing was provoked, it is the defendant’s obligation to proffer evidence on the issue of sudden quarrel or heat of passion. In any event, where evidence of provocation is presented by either party, the prosecution must establish that provocation and heat of passion were lacking in order to prove malice. (Id. at pp. 461-462.) Because of this relationship between the two offenses, the Rios court rejected the defendant’s argument, and observed that if it were to find otherwise, “[o]n the one hand, the People would have to prove, beyond reasonable doubt, the absence of [heat of passion] in order to establish the greater offense, but on the other hand, would have to prove their presence beyond reasonable doubt to establish the lesser one.” (Id. at p. 462.)
Rios reaffirmed the principle that a murder defendant is entitled to voluntary manslaughter instructions as a lesser included offense only where evidence of provocation has been introduced; only then does the prosecution have the burden of proving the absence of provocation beyond a reasonable doubt. (Rios, supra, 23 Cal.4th at p. 462.) Here, unlike Rios, only murder was at issue; in the absence of provocation, there was insufficient evidence to support an instruction on voluntary manslaughter as a lesser included offense.
C. There Was No Error in Failure to Define “Heat of Passion.”
1. Factual Background.
The trial court instructed the jury with CALJIC No. 8.20, that deliberation or premeditation must not have been formed under a “sudden heat of passion or other condition precluding the idea of deliberation.” During deliberations, the jury asked the court to clarify the difference between first and second degree murder, “specifically to define ‘deliberate and premeditated’ pertaining to the charge and the phrase ‘careful thought and weighing of considerations for and against the proposed course of action.’”
The relevant portion of CALJIC No. 8.20 provided that “If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.”
The jury was instructed as to first and second degree murder. The second degree murder instruction (CALJIC No. 8.30) provided, “Murder of the second degree is the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.”
2. The Trial Court Was Not Required to Define “Heat of Passion.”
Defendant argues here that further definition was required because the jury could have found he did not form the intent to kill until the sudden quarrel during the confrontation in the market, thereby negating the elements of premeditation and deliberation. In People v. Cole (2004) 33 Cal.4th 1158, the Supreme Court rejected this argument because where voluntary manslaughter is not at issue, the phrase “heat of passion” has no special meaning. “Provocation and heat of passion as used in [CALJIC No. 8.20 have] their common meaning, which required no further explanation in the absence of a specific request.” (Id. at pp. 1217-1218.) Here, the jury inquired concerning the meaning of “deliberate” and “premeditation” as those terms related to a careful weighing of the considerations for and against the proposed course of action. This inquiry did not indicate confusion over the meaning of “heat of passion;” in any event, absent such confusion, under People v .Cole, supra, no clarification was required.
D. No Cumulative Error.
Whether considered individually or for their cumulative effect, none of the instructional errors alleged affected the process of the trial or accrued to defendant’s detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565.) Where there is no individual error, there can be no cumulative error. (People v. Beeler (1995) 9 Cal.4th 953, 994.)
V. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDING THE MURDER WAS WILFUL, DELIBERATE AND PREMEDITATED.
Defendant contends his first-degree murder conviction must be reduced to second-degree murder because there is no evidence that he planned to kill Ruiz. Instead, he argues, the evidence establishes that the homicide took place after a sudden confrontation after Guzman “flipped” defendant off; there was no proof of any gang affiliation on the part of Ruiz or Guzman that would support a motive; and he did not approach Ruiz with his firearm drawn and did not shoot him in the heart or other vital organ. We disagree.
A verdict of deliberate and premeditated murder requires more than a showing of intent to kill. “Deliberation” refers to a careful weighing of considerations in forming a course of action, and “premeditation” refers to the act of thinking something over in advance. However, the process of deliberation and premeditation does not require any particular amount of time. “‘“‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’ [Citations].” [Citations.]’” (People v. Young (2005) 34 Cal.4th 1149, 1182.)
In People v. Anderson (1968) 70 Cal.2d 15, the court set forth three categories of facts that would support a finding of premeditation and deliberation. (Id. at pp. 26- 27.) These categories may support an inference of premeditation where direct evidence of defendant’s state of mind is not available: (1) facts constituting “planning” activity, such as acts by the defendant prior to the killing that show the defendant was engaged in activity directed toward and intended to result in the killing; (2) facts about the defendant’s prior relationship with the victim from which the jury could reasonably infer a motive to kill; (3) facts about the nature of the killing from which the jury could infer the manner of killing was the result of pre-existing reflection and careful thought rather than unconsidered, rash impulses hastily executed. Strong evidence of all three factors will support a verdict of first degree murder, as will strong evidence of planning or evidence of motive in conjunction with planning and method evidence. (Anderson, supra, at pp. 26-27; People v. Procter (1992) 4 Cal.4th 499, 529.)
The Anderson criteria of planning, motive and method are meant to guide reviewing courts in assessing whether the evidence supports an inference the killing resulted from pre-existing reflection, rather than an unconsidered or rash impulse. Therefore, no particular Anderson factor need be accorded a particular weight, the factors need not be used in any particular combination, and they are not exhaustive. (Proctor, supra, 4 Cal.4th at pp. 528-529.) The circumstances need only show appellant formed the intent to kill prior to the killing. (People v. Sanchez (1995) 12 Cal.4th 1, 34 [test of premeditation is not duration, but depth of reflection and deliberation].) Thus, although facts may be consistent with a “rash impulse,” they may be equally consistent with a deliberated, premeditated decision to kill. (People v. Thomas (1992) 2 Cal.4th 489, 514 [if evidence reasonably justifies the jury’s findings, the fact that the circumstances might be reconciled with a different conclusion does not warrant reversal of the judgment].)
Here, defendant drove by a market; one of the occupants of the car attempted to initiate a fight by asking Guzman and Ruiz “where are you from,” thereby asking whether they belonged to a gang. When Guzman gave them the finger and continued into the market with Ruiz, defendant’s car circled around and pulled into a parking lot, defendant exited the car with a weapon, and he returned to the market where he confronted Guzman and Ruiz. A verbal altercation followed; the victim had his hands raised. For many of the same reasons that no evidence of provocation or heat of passion justified a voluntary manslaughter instruction, the evidence supports a finding that defendant acted with calm, rational thought as he took the time to approach the market with his weapon, confront his disabled victim (who had his hands raised), and shoot. This conduct evidences planning (parking the car, arming himself, and approaching the market), provides a motive (an assumed gang affiliation based upon the question “where are you from”), and shows conduct directed towards the killing (arming himself and accosting the victim with a handgun). This evidence is sufficient to support a finding of a wilful, deliberate and premeditated killing.
VI. SUFFICIENT EVIDENCE SUPPORTS THE GANG ENHANCEMENT.
Defendant argues the gang enhancement imposed under section 186.22, subdivision (b)(1) based upon a murder committed for the benefit of a criminal street gang must be reversed because there is no evidence defendant committed the killing to promote additional criminal conduct by his gang, BMS, and the gang expert’s testimony was insufficient to establish this specific intent. (See Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.)
Penal Code section 186.22, subdivision (b)(1) provides a sentence enhancement 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.” A gang is a “criminal street gang,” if the prosecution demonstrates the gang has as one of its primary activities the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and that it has engaged in a “pattern of criminal gang activity” by committing two or more such “predicate offenses.” (§ 186.22, subds. (e), (f); People v. Gardeley (1996) 14 Cal.4th 605, 617.) The predicate offenses need not be gang related, and murder and robbery are included in the list of predicate offenses. (Gardeley, supra, at p. 610; § 186. 22, subd. (e).)
We reject defendant’s arguments based upon Garcia v. Carey. In Garcia v. Carey, the Ninth Circuit held that section 186.22 subdivision (b)(1) required the prosecution to establish that the defendant committed the predicate offense for the benefit of, at the direction of, or in association with a gang, and that the defendant committed the crime with the specific intent to promote, further, or assist in other criminal conduct by gang members. (Garcia v. Carey, supra, 395 F.3d at pp. 1102-1103.) In Garcia, the defendant, a gang member, robbed the victim at a liquor store. (Id. at pp. 1101-1102.) Garcia found the defendant’s gang affiliation, without more, insufficient to support a gang enhancement under section 186.22 because nothing in the record supported an inference that defendant committed the robbery with the specific intent to facilitate other gang criminal activity; the gang expert’s testimony was silent on what criminal activity was furthered by the robbery. (Id. at p. 1103.)
Two California intermediate appellate courts have rejected Garcia on the grounds the statute does not require the specific intent to further other, additional gang criminal activity. (People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Hill (2006) 142 Cal.App.4th 770, 774.) As explained in Romero, “[b]y its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct.” (People v. Romero, supra at p. 19; see also People v. Hill, supra, 142 Cal.App.4th at p. 774 [“[t]here is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits”].) We follow their reasoning. (People v. Romero, supra, 140 Cal.App.4th at p. 19 [federal authority not binding on matters of state law].)
The prosecution can show that a crime is committed for the benefit of a criminal street gang by producing evidence that establishes the defendant has the specific intent “to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) In People v. Morales (2003) 112 Cal.App.4th 1176, the defendant and two other members of a gang robbed three occupants of a house, and during the robbery, one of the other gang members murdered one of the occupants. (Id. at pp. 1179-1183.) The defendant argued that insufficient evidence supported the enhancement because the evidence only established that he and his accomplices in the robbery belonged to the same gang. (People v. Morales, supra, 112 Cal.App.4th at p. 1197.) Morales rejected this contention, reasoning that there was adequate evidence that the defendant had engaged in the robbery in association with other gang members and it was therefore “fairly inferable that he intended to assist criminal conduct by his fellow gang members.” Further, nothing indicated that the offenses were merely “a frolic and detour unrelated to the gang.” (Id. at p. 1198; see also People v. Romero, supra, 140 Cal.App.4th at p. 20.)
Applying the requirements of section 186.22, subdivision (b)(1) to the facts of this case, we find sufficient evidence supports the gang enhancement. Defendant and his companions, Nava and Brenda Martinez, were known or acknowledged gang members; the market which was the scene of the crime was in an area of disputed gang territory; one of defendant’s companions issued a verbal challenge to Guzman and Ruiz by asking them what gang they belonged to; when Guzman responded by giving defendant and his companions the finger, defendant shot Ruiz and then fled to a gang hangout. This unprovoked killing supports a fair inference that defendant intended to further the status and reputation of his gang through murder, intimidation, and turf dominance.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.