Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06906977, Gary R. Orozco, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury convicted appellant Michelle Delores Molina of involuntary manslaughter (Pen. Code, § 192, subd. (b)), attempted forcible rape (§§ 664, 261, subd. (a)(1)), and false imprisonment by violence (§ 236, subd. (b)). The jury also found true allegations that all of the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced appellant to a total prison term of 12 years eight months. On appeal, appellant contends: (1) insufficient evidence supports the gang enhancements because there was no evidence the crimes were gang-related (as opposed to personally motivated); and (2) the gang enhancements must be stricken in any event because the guilty verdict forms mistakenly referred to “murder” as the offense underlying the gang enhancements alleged in each count rather than the substantive offenses of which appellant was convicted. We disagree with appellant’s contentions and affirm the judgment.
Further statutory references are to the Penal Code unless otherwise specified.
Appellant was acquitted of charges of murder and forcible rape.
The parties on appeal have provided detailed accounts of the evidence presented in support of the prosecution and defense cases. Because appellant does not challenge the sufficiency of the evidence supporting her convictions, our statement of facts focuses on the facts and circumstances relevant to appellant’s challenge to the gang enhancements.
On June 12, 2006, police were called to a tow yard in Fresno where the body of 16-year-old Courtney Rice was discovered in the bed of a pickup truck. The victim’s decomposing body was found lying facedown, wrapped in a sleeping bag, plastic trash bags, and other materials. Her feet were handcuffed together and her hands were handcuffed behind her back. Her pants were lowered, exposing her buttocks. There was black electrical tape tangled in her hair. The chief pathologist of the county coroner’s office opined the cause of death was “probable asphyxiation” caused by “binding and gagging.”
The subsequent murder investigation uncovered evidence connecting Rice to appellant, Roger Alley, Joseph Lopez, and Elbert Vargas (collectively, the defendants), and placing them together during a period between Friday, June 9, and Sunday, June 11, 2006. At trial, the parties stipulated that all the defendants were active members of the Bulldog criminal street gang.
Two other individuals, Sylvester Carter and Maria Coronado, were also linked to the victim. The prosecution’s case against the defendants pivoted on the testimony of these two percipient witnesses, who testified pursuant to plea bargains entered on related charges. At trial, Carter admitted he was a member of the Northside Crips, a criminal street gang. Coronado testified she used to associate with the Bulldog gang when she was a teenager and had since had her gang tattoos surgically removed.
Carter testified he went to appellant’s apartment on Friday, June 9, 2006, to use drugs; i.e., crack cocaine. When he arrived in the late afternoon, the door to appellant’s apartment was partly open. He walked inside and was met by appellant and Lopez who told him he “might not want to be here right now, we doing something serious.” Thinking they were trying to “party” without them, Carter said “stop playing” and pushed them aside. He then saw Rice lying on the floor in the middle of the hallway. Her hands were handcuffed behind her back and her feet were handcuffed. She was gagged and black electrical tape was wrapped tightly and painfully across her eyes and around her head.
Lopez told Carter, “calm down, this was all right.” Lopez explained that Rice had been “running her mouth.” Carter understood this to mean Rice had been “snitching” or “talking about [Lopez’s] … illegal activities.” Lopez asked Carter to kick Rice or do something to show he was “down with the situation.” Carter kicked Rice in the small of the back and Lopez said, “That’s what I’m talking about.”
Carter testified that at the time he went to appellant’s apartment, he believed appellant, Lopez, and Vargas were members of the Bulldog gang. After Lopez explained the situation, Carter understood that Rice had been snitching about Lopez and that serious things were happening as a result. The environment in the apartment seemed dangerous. Carter agreed that, by testifying at trial, he was also being a snitch and that this placed him in danger in prison. According to Carter, gangs, including the Bulldogs and Northside Crips, had a “green light” on snitches. A snitch’s status was worse than that of a rapist or child molester.
After kicking the victim in the hallway, Carter went to join Vargas in the living room, where they got high on crack cocaine Lopez gave them. At some point, Lopez told Carter and Vargas to “[f]uck [Rice] in the ass” and added that she liked it like that and deserved it. Carter said he would not touch Rice because she was “dirty.” Carter explained that “she wasn’t in good hygiene care at the time” and her clothes “didn’t look too clean.”
After Carter made these observations regarding the victim’s physical appearance, appellant and Lopez ordered Rice to “scoot on her backside towards the bathroom.” During this time, appellant acted aggressively towards Rice, calling the victim bad names, making derogatory statements about her appearance, and deriding her for believing she was “going to be with” Lopez. In the bathroom, Rice used a key to remove the handcuffs from Rice’s hands and feet. Appellant then undressed Rice and directed her to sit in the bathtub where she doused the victim with water and shampoo for approximately 10 to 15 minutes.
Afterwards, appellant put the handcuffs back on Rice, who was now naked, and ordered her to scoot back out of the bathroom. Tired of seeing the victim “scooting”, Carter picked Rice up by the arms and dragged her into the back bedroom, where he left her on the floor.
According to Carter’s testimony, appellant gave condoms to him and Vargas, and Lopez gave them crack cocaine. Carter and Vargas then went into the bathroom to toss a coin to determine who would have sex with Rice first. Carter won the coin-toss but told Vargas to go first because he was having difficulty achieving an erection due to his heavy crack cocaine use. Carter remained in the bathroom and tried to get an erection by masturbating. A little later, Carter saw Vargas, shirtless and sweaty, emerge from the back bedroom and walk down the hall towards the living room.
When Carter went into the back bedroom, he found Rice on her knees and elbows with her buttocks up in the air. She was no longer handcuffed, but the tape was still around her eyes. Carter tried but was unable to have penetrative sex with the victim due to his continuing lack of an erection. Carter told the victim, if asked, to lie and say they had sex because he was afraid of how the others might react if they found out he did not do his “part of the deal.”
Coronado testified that throughout the night she saw the four men going back and forth to the back bedroom and heard them saying things like, “Are you ready, is she ready?” At one point, Alley and Lopez were in the back bedroom together. She heard Lopez laughing and one of them say, “This is how real gangsters get down.”
Carter testified that after he left the back bedroom, he encountered appellant in the hallway. Appellant had the key to the handcuffs and instructed Carter to put the handcuffs back on Rice. Carter also handed appellant a condom, which she went and disposed of in the kitchen. A little later, appellant announced: “You guys had your turn, now it’s mine.” She then walked into the back bedroom and closed the door.
Carter heard appellant yelling at Rice, calling her “a bunch of bitches,” and saying “[Lopez] wasn’t going to be with her at that time.” In response, Rice was “yelling out submissive terms.” Carter explained: “[Appellant] would yell out, let’s say, ‘Do you believe [Lopez] is gonna be with you?’ [¶] And you will hear [Rice] say, ‘no.’ [¶] ‘Are you a fat bitch?’ [¶] You hear [Rice], say, ‘yes.’”
Carter further testified that it also sounded like Rice was getting hit or kicked. Appellant was in the bedroom with Rice for at least an hour. Periodically she would come out of the room looking “exhausted,… like she needed a break, catch her wind.” She would rest for five or six minutes and then go back into the bedroom and shut the door.
Later, Carter and Lopez went into the back bedroom with Rice. Lopez handed Carter a rock of cocaine and asked him what they should do with Rice. Carter said he did not know. Meanwhile, Lopez used a pellet gun to shoot small, green rubber pellets at Rice, as she was lying handcuffed on the mattress. Rice would grunt when the pellets hit her. In her testimony, Coronado also described seeing Lopez shoot Rice with the pellet gun and Rice flinch when the green pellets hit her.
Carter testified that around daybreak he went out on the balcony/stairwell with appellant and Coronado and smoked a cigarette. Before he went outside, he noticed the door to the back bedroom was open. When he came back into the apartment, the door was closed and he could hear muffled voices, which he recognized as belonging to Lopez and Alley. Carter went back out to the balcony and saw that appellant, Coronado, and Vargas had left the apartment and gone downstairs to an area near the parking lot and below the windows of the back bedroom. Carter went to join them.
Carter heard the music that had been playing in the apartment suddenly get much louder. He then heard Rice yelling “help” and “no.” He also heard a thumping sound that was rattling the windows but which was not caused by the music. Appellant, who was standing next to Carter, warned: “You better not run.” However, when Carter looked up and saw the maintenance man coming down the walkway, he panicked and ran away.
Coronado testified that earlier Lopez had exited the back bedroom holding his shotgun and said, “This bitch is gonna have to die.” Shortly after Lopez made this statement, Coronado asked Alley permission to leave the apartment to go home to change out of her work clothes. Alley told her she would have to come back to the apartment afterwards. Although she had a cell phone, Coronado testified she was too scared to call 911 or try to get help for Rice because Alley knew where she lived. After Coronado changed her clothes, she returned to appellant’s apartment around 5:00 or 5:30 a.m. It was still dark outside. There were no sounds coming from the apartment. She saw Vargas lying on the couch, apparently asleep.
As Coronado walked to appellant’s bedroom, she noticed the doorway to the back bedroom was open. Peering into the room, Coronado observed Rice lying facedown on the floor. Rice’s feet were handcuffed and it looked like she was wearing clothes. Coronado did not see anyone else in the bedroom.
Once inside appellant’s bedroom, Coronado smoked drugs with appellant, Alley, and Lopez. Coronado was unsure where Carter was at this time. A little later, Coronado saw Carter walk down the hallway, go into the back bedroom, and close the door. Coronado heard some noises and it sounded like Carter had turned the music back on. Lopez then left appellant’s bedroom and joined Carter in the back bedroom. This was around 7:00 a.m. Coronado heard the music get louder. She then saw Vargas get up from the couch in the living room and go into the back bedroom and close the door. Finally, Alley also got up and went into the back bedroom and closed the door, leaving Coronado and appellant alone in appellant’s bedroom. Coronado heard the four men talking but could not make out what they were saying because of the music that was playing in the back bedroom.
Coronado started talking to appellant about trying to see if they could talk the guys into letting them leave the apartment. After this, they went outside to smoke a cigarette. About five minutes later, they came back into the apartment and went back into appellant’s bedroom. The door of the back bedroom was still closed and music was coming from the room. The door opened and all four men came out. Lopez and Alley told appellant and Coronado to keep an eye on Vargas and Carter and to make sure they did not leave. Appellant, Coronado, and Carter sat in appellant’s bedroom, smoking drugs. Vargas returned to the living room couch. Lopez and Alley went into the back bedroom. The door was closed and the music got a little bit louder.
Appellant and Coronado went outside to smoke another cigarette. Coronado walked to the bottom of the stairs, and appellant stayed upstairs. A few minutes later, Carter came down the stairs, walked past Coronado, and left the apartment complex. Coronado never saw Carter again that morning.
Meanwhile, Coronado heard thumping sounds that were not the beat of the music. She assumed they were coming from the back bedroom. With each thump, the window from that room vibrated. She was not able to hear anything else at that time.
Coronado returned to the apartment. Lopez and Alley came out of the back bedroom and yelled at Coronado for letting Carter leave. Appellant, Alley, Lopez, and Coronado then went into appellant’s bedroom together. The four sat and talked about Carter. Lopez was upset and wanted to go look for him. The discussion lasted 10 or 15 minutes.
Lopez then left the apartment to look for Carter. Coronado sat in the appellant’s bedroom with Alley and appellant for another 20 minutes. Alley left and went into the back bedroom with Vargas and closed the door behind him. The music got a lot louder. Appellant and Coronado went back outside the front door to smoke a cigarette. Coronado heard more thumping from the apartment and this time moaning and screaming like someone was in pain. The screaming went on for 15 or 20 minutes.
Coronado went downstairs. It was light by this time. She saw a maintenance man throwing some trash in the dumpster and a couple of neighbors sitting on the stairs smoking cigarettes. When she was at ground level in front of the two windows of appellant’s apartment, she heard “screaming, thumping, like somebody was jumping up and down.” The windows were rattling had the volume of the music had been turned up a lot higher. At this point in time, she had not seen Lopez return to the apartment. The only people in the apartment were Alley, Vargas, and Rice. Eventually, Alley came out of the apartment. He was sweaty, his face was red, and he complained of being hot. Alley said “she doesn’t want to die” and “no matter what they do, she’s still breathing.”
Alley asked appellant about Lopez and then went back into the apartment. When Alley was on the balcony with Coronado, she only heard the music coming from the back bedroom and no thumping or screaming. When Alley went back into the apartment, the screaming and thumping started again. The screaming finally stopped and the music was lowered. Vargas stayed in the room and Alley came back out and said something to appellant. After that, Alley said to Coronado that they needed to come up with a story to explain what they were doing that day.
In their testimony, Carter and Coronado went on to describe how the group later met at a motel and made efforts to hide Rice’s body and other evidence of the crimes. It was decided that the “girls” (i.e., appellant and Coronado) would return to the apartment and clean up and that the “guys” would go over later and move the body. Coronado was not happy with this arrangement and argued with Alley about it. Eventually she and appellant returned to the apartment around 3:00 or 4:00 p.m., after first purchasing cleaning supplies at a discount store.
When they walked inside the apartment, there was an overwhelming stink. Appellant and Coronado got upset and started crying. They then hugged each other and went into the back bedroom where Rice’s body was lying on the floor. There was a green dishtowel over Rice’s face. Her right arm was in a fist by her side and the other arm was twisted behind her back. She was wearing jeans, which were lowered, exposing the pubic area. Coronado rolled Rice over to clean the carpet underneath her body. Coronado and appellant also wiped down counters and doorknobs in the apartment.
Early the next morning, Coronado drove back to appellant’s apartment and met up with the others. Lopez and another individual, named Craig Mills, were in the back bedroom trying to move a loveseat, which had Rice’s body on it. Rice’s body was wrapped in a sleeping bag and her feet were still cuffed. As the men were trying to move the loveseat, Lopez seemed “happy.” He said “it was turning him on to see [Rice] like that” and “[t]hat he wanted to fuck her.”
Rice’s body fell off the loveseat and Lopez dragged it into the living room. Lopez and Mills wrapped the body in a futon mattress and tied it with electrical cords. They then took the body downstairs and put it in the bed of a blue pickup truck, which belonged to the construction company where Lopez’s brother worked and was his brother’s work vehicle.
The group drove in separate vehicles to a rural area of Fresno, stopping first at a gas station to fill a five-gallon can with gas, which Lopez indicated he was planning to use to burn Rice’s body. They eventually pulled into an almond orchard. Lopez, Vargas, and Mills retrieved shovels from the bed of the pickup truck and started to dig a hole. They had been digging five or 10 minutes, when Coronado saw a light in the distance and warned them she thought someone was coming. They fled, abandoning the pickup truck containing Rice’s body. The pickup was observed by a California Highway Patrol Officer on the morning of Sunday, June 11, 2006, and ordered towed to the impound lot where Rice’s body was discovered the following day.
Amanda Essman, a resident of appellant’s apartment complex, testified that in early June, Rice described herself to Essman as Lopez’s “hooker” and a “gangster” and made statements to the effect that she and Lopez had committed crimes (“done dirt”) together. About 20 minutes after Rice made these statements, Essman confronted Lopez. Lopez denied Rice’s statements and told Essman that Rice was “crazy.” Later, Rice called Essman a snitch and said she was going to kill her. Fearing for her personal safety, Essman spent the night at a hotel.
Another resident of the apartment complex, Terri Egger, testified that on Saturday, June 10, she overheard appellant arguing with Lopez. Appellant told Lopez, “Don’t you bring that bitch to my place, don’t bring her over there” and “If I ever see that bitch again, I’m going to beat her ass.” Lopez said something about using the person for prostitution and getting money for him by robbing people.
A few hours later, Egger met Rice for the first time by a trash dumpster at the apartment complex. Rice was not wearing any shoes and Egger invited her to her apartment to give her some clothing.
Later that evening, appellant told Egger that Rice was the person she had been arguing about with Lopez earlier that day. Appellant came to Egger’s apartment around 9:00 or 10:00 p.m. Appellant seemed nervous. She was limping and her knuckles were swollen and bruised. Egger asked appellant how she injured her hand. Appellant responded that she was “made to fight some girl.” As to the limp, appellant said the girl’s head hit her foot and she was going to have to get rid of her shoes.
Appellant returned to Egger’s apartment around midnight, seeming more “antsy” than before. Appellant left some laundry at Egger’s apartment and never returned for it.
Lopez’s brother, Richard Juarez, testified that he knew his brother had several girlfriends. Juarez had met Rice in the past. The last time was about two weeks before she died. Lopez told Juarez that Rice “had stuff on him.”
The Gang Expert’s Testimony
Detective Anthony Gates testified as the prosecution’s gang expert. He had been a member of the Fresno Police Department for two and a half years, and had previously served as a California Highway Patrol Officer for nine and a half years. Detective Gates had also been part of the Multi-Agency Gang Enforcement Consortium (MAGEC) for the past seven years and had been assigned to that unit as a detective for the past four years.
Detective Gates testified that the Bulldog gang is the largest gang in the greater Fresno area with approximately 4000 validated members. In his work, he has had approximately 800 to 1000 contacts with Bulldog gang members. Bulldogs identify with the color red and anything related to the Fresno State athletic department such as the school’s bulldog mascot. The Bulldog gang’s primary activities include murder, assaults, and witness intimidation.
According to Detective Gates, respect is everything in the gang culture. Respect comes from fear and intimidation. Gang members gain respect by committing acts of violence against rival gang members and non-gang members. Fear and intimidation make it easier for gangs to commit crimes within a neighborhood because people are reluctant to report crimes to the police.
It is beneficial to a gang member to commit a violent act on an individual in front of other members of his or her gang. It bolsters the gang member’s reputation within the gang by showing the gang member is “down with the cause” and not afraid to commit crimes. Committing violent crimes in front of other gang members also benefits the gang itself because it “cements that feeling of invincibility and … cements that into the minds of the other gang members that, hey, we are … a bunch of bad dudes, bad gals type-of-thing.” When an individual Bulldog commits violent acts, it benefits the Bulldog gang in general because “they’ve now proven themselves, in a sense, to each other, and to rivals, community members and law enforcement.”
A snitch is someone who cooperates with the police or tells on someone else in a way that may potentially get them in trouble. Bulldogs view snitches as the “[l]owest of the low.” Snitches are perceived as posing a danger to the self-preservation of both individual gang members and the gang itself.
Presented with a series of hypothetical scenarios based on the facts and circumstances in this case, Detective Gates opined, as to each defendant, that their activities benefited, were directed by, and were in association with the Bulldog gang. Among other things, Detective Gates testified that by acting in the presence of other Bulldog gang members, defendants’ activities benefited the gang because “now each one of them can attest – or testify to the fact that that person is willing to commit such violent acts, again, garnishing the fear, garnishing the reputation.”
It also benefited the gang when one of its members was successfully able to direct others, including non-Bulldog members, to assist him in carrying out his crimes. Thus, Detective Gates answered in the affirmative when asked, “The individual [i.e., Lopez] who was using the 16-year-old, as a prostitute, did his actions in having that snitch raped and murdered, is that furthering the activities of the Bulldog gang.” The gang expert explained: “[a]gain, you’re talking about a group that thrives on fear and intimidation, and you get fear and intimidation by committing violent acts. And in that culture, the more fear and intimidation and respect you have, the easier it is to be a gang.”
DISCUSSION
I. Sufficiency of the Evidence of the Gang Enhancements
Appellant contends there was insufficient evidence to support the gang enhancements imposed under section 186.22, subdivision (b)(1) for her convictions of involuntary manslaughter, attempted forcible rape, and false imprisonment by violence. In particular, appellant argues the offenses were not gang-related merely because she and the other defendants were members of the Bulldog gang. She places strong reliance on the fact defendants made efforts to hide their crimes afterwards instead of advertising their involvement publicly to gain respect or enhance their gang’s reputation in the community. Appellant also relies heavily on evidence of personal motives for the crimes, including her jealousy over the victim’s relationship with Lopez.
When an appellant raises a challenge on appeal to the sufficiency of the evidence to support a conviction, she faces a formidable task. In order to succeed, she must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the verdict and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (See People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Augborne (2002) 104 Cal.App.4th 362, 371 [applying standard to gang enhancement].)
Section 186.22, subdivision (b)(1) provides for a sentence enhancement for any person who commits a felony where the prosecution proves such offense was committed (1) “for the benefit of, at the direction of, or in association with any criminal street gang,” (2) “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” With respect to the second element, “specific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Gang membership alone does not prove the requisite specific intent. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) “‘The crime itself must have some connection with the activities of a gang.’” (Ibid.)
In a case where a defendant/gang member commits a felony with another gang member, the jury can readily infer that the crime was in association with the gang, and the defendant intended to promote the gang. (See People v. Morales, supra, 112 Cal.App.4th at p. 1198; In re Ramon T. (1997) 57 Cal.App.4th 201, 204, 206-207 [gang enhancement supported by fact that minor, in association with two other gang members, assaulted police officer to free minor from officer’s grasp].) In contrast, “the typical close case is one in which one gang member, acting alone, commits a crime.” (People v. Morales, supra, 112 Cal.App.4th at p. 1198.)
On the record before us, we have no difficulty concluding appellant’s crimes were committed both for the benefit of and in association with the gang and with the requisite intent. Appellant committed the offenses with three other gang members against a victim accused by one of them as being a snitch. The gang expert gave testimony to the effect that gangs deal harshly with snitches and the types of crimes committed in this case would benefit the gang by promoting gang solidarity, regardless of whether the defendants’ involvement in the crimes ever became known in the greater community. (See People v. Montes (2003) 31 Cal.4th 350, 361 [“‘Gang-related crimes pose a unique threat to the public because of gang members’ organization and solidarity’”].) In this regard, the expert testified that by committing violent acts in front of one another gang members benefit the gang because it “cements that feeling of invincibility” and proves to one another they are “down with the cause.”
Appellant relies on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran). That case, however, did not concern the sufficiency of the evidence to support a gang enhancement – the gang enhancement in that case were dismissed by the trial court after it granted defendant’s motion for a new trial. The issue addressed by the appellant court was whether the trial court erred in admitting gang evidence that was so “completely irrelevant and highly prejudicial” that it violated the defendant’s constitutional right to a fair trial. (Id. at pp. 217, 222; see People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [“It is axiomatic that cases are not authority for propositions not considered”].)
To the extent appellant argues by analogy, Albarran, supra, 149 Cal.App.4th 214, is factually distinguishable. In that case, two men shot – at night and from a distance – at a house where a birthday party was being held. (Id. at p. 217.) The prosecution’s gang expert testified that the shooting was gang related because it would enhance the gang’s and the shooters’ reputations. (Id. at p. 227.) The appellate court, however, observed:
“[T]here was insufficient evidence to support the contention that this shooting was done with the intent to gain respect. On the contrary, the motive for the underlying crimes... was not apparent from the circumstances of the crime. The shooting occurred at a private birthday party for [one victim’s] cousin. Although according to [the gang expert], [that victim] was a member of the Pierce Boys Gang, [the victim’s] gang did not have any known or relevant gang rivalries.... [T]his shooting presented no signs of gang members’ efforts [to enhance his reputation]—there was no evidence the shooters announced their presence or purpose—before, during or after the shooting. There was no evidence presented that any gang members had ‘bragged’ about their involvement or created graffiti and took credit for it. In fact, [at a pretrial hearing, the gang expert] conceded he did not know the reason for the shooting, though he had ‘heard’ that gang members were present at the party. There is nothing inherent in the facts of the shooting to suggest any specific gang motive. In the final analysis, the only evidence to support the respect motive is the fact of [the defendant’s] gang affiliation.” (Ibid., fn. omitted.)
Albarran, supra, 149 Cal.App.4th 214,bears no resemblance to the facts in this case. Here, four defendant gang members humiliated and held the victim bound and gagged for many until she died of asphyxiation. Those present generally understood the reason for the victim’s ordeal was that one of the defendant gang members had accused her of being a snitch. While appellant notes the lack of evidence that defendants shouted gang slogans during the crimes, she overlooks evidence one defendant was heard to proclaim that this was how “real gangsters get down.” The gang expert’s testimony explained that in gang culture, being a snitch is taboo and places an individual who acquires the label in great danger. Defendants’ activities in this case strongly exemplified this particular aspect of gang culture. Moreover, as discussed above, the circumstance that defendants did not brag about their crimes or otherwise announce their participation publicly afterwards, did not foreclose a finding the crimes were gang-related, since the gang expert’s testimony suggested additional ways defendants’ activities could benefit the gang besides enhancing the gang’s reputation, such as by promoting sense of solidarity within the gang.
In any event, appellant’s reliance on defendants’ efforts to hide evidence of their crimes after their commission overlooks evidence the defendants were not so circumspect during the commission of the crimes. For example, there was evidence the front door to appellant’s apartment was left ajar, allowing Carter to walk inside the apartment and almost immediately perceive the victim, who was lying bound and gagged in the hallway. Later, defendants blasted their music into the early morning hours, apparently without fear of drawing attention to themselves or having their activities reported by other residents of the apartment complex. Indeed, at one point on Saturday morning, the music, the victim’s protests, and sounds of thumping and rattling in the room where the victim was being held became so loud persons standing outside the apartment could hear them. Based on these circumstances, a reasonable jury could find that, in addition to promoting gang solidarity, the defendants’ flagrant conduct served to benefit the gang by intimidating and arousing fear in members of the community living in close vicinity to appellant’s apartment.
The other cases appellant cites are also inapposite and do not require extended discussion. (See In re Frank S., supra, 141 Cal.App.4th at pp. 1195, 1199 [insufficient evidence of gang enhancement where only evidence of gang-related intent was single perpetrator’s gang membership]; see also People v. Martinez (2004) 116 Cal.App.4th 753, 762 [insufficient evidence for gang registration requirement where the defendant was gang member but no evidence accomplice was gang member]).)
In her reply brief, appellant relies on federal authority holding the specific intent element of section 186.22, subdivision (b), is not satisfied by evidence the defendant has the intent to assist a fellow gang member in any criminal conduct; rather the specific intent must be to facilitate other criminal activities by gang members. (See Bricenov. Scribner (9th Cir. 2009) 555 F.3d 1069, 1079, fn. 3; Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103.) As lower federal court decisions, these cases are not binding on this court. (People v. Burnett (2003) 110 Cal.App.4th 868, 882.) We agree with our Court of Appeal colleagues these cases misinterpret section 186.22. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 20; cf. Briceno v. Scribner, supra, 555 F.3d at pp. 1084-1089 (conc. & dis. opn. of Wardlaw, J.).)
In conclusion, we find there was ample evidence to permit a reasonable jury to infer the attack on the victim in this case was gang-related and that the crimes were in association with and for the benefit of the gang. We therefore reject appellant’s evidentiary challenge to the gang enhancements.
II. Defective Verdict Forms
The verdict forms provided to the jury mistakenly identified “murder” as the offense underlying the gang enhancements alleged in counts 1 through 4. Consequently, the guilty forms returned by the jury on counts 1, 3, and 4, stated the jury found appellant guilty of the substantive offenses charged in those counts and stated the jury further found to be true “that the murder was committed for the benefit of, at the direction of or in association with a criminal street gang.…” (Italics added.)
For example, the guilty verdict form for count one stated:
Noting Lopez was the only defendant convicted of murder, appellant contends the verdict forms show the jury never found any of the other crimes were committed for the benefit of the gang. Therefore, the gang enhancements imposed on her convictions of involuntary manslaughter, attempted rape, and imprisonment by violence must be stricken. Appellant further contends the trial court, by imposing judgment as though the jury had returned true findings on the gang enhancements, violated her Sixth Amendment right to a jury trial on the enhancement allegations. Assuming without deciding appellant’s challenge to the verdict forms was not forfeited by her failure to object in the trial court, we reject her contentions on the merits.
The verdict must “‘“be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.” [Citations.]’” (People v. Jones (1997) 58 Cal.App.4th 693, 710.) Verdicts will be liberally construed and their validity sustained if the intention of the jury can be clearly seen. (People v. Soto (1985) 166 Cal.App.3d 428, 437 (Soto).) Furthermore, technical defects in a verdict may be disregarded if the jury’s intent to convict is unmistakably clear. (People v. Jones, supra, 58 Cal.App.4th at pp. 710-711.) The verdict should be read in light of the information, the plea entered, and the jury instructions. (People v. Paul (1998) 18 Cal.4th 698, 706-707; People v. Jones, supra, 58 Cal.App.4th at p. 710.)
A California Court of Appeal recently rejected a similar defective verdict form challenge. (People v. Camacho (2009) 171 Cal.App.4th 1269 (review den. June 10, 2009) (Camacho).) In Camacho, “[a] verdict form provided to the jury on a charge of robbery mistakenly identified the offense as carjacking. The mistake went unnoticed when the guilty verdict was read and the jury polled, and judgment was imposed as though the jury had returned a verdict of guilty of robbery.” (Camacho, supra, 171 Cal.App.4th at p. 1271.) The Court of Appeal concluded: “Because every stage of this case identified the offense as robbery – the charging document, the opening statement, arguments of counsel, and the jury instructions – we hold the jury’s intent to convict on robbery was unmistakably clear. The clerical error in the verdict form does not affect the validity of the verdict.” (Ibid.)
In reaching its conclusion, Camacho relied on a line of California decisions where the reviewing courts disregarded technical errors in the verdict form to effectuate the clear intent of the jury. (Camacho, supra, 171 Cal.App.4th at p. 1274; see People v. Escarcega (1969) 273 Cal.App.2d 853, 857-858 [verdict form contained wrong Penal Code reference but jury was instructed on correct offense]; People v. Reed (1980) 114 Cal.App.3d Supp. 1, 6-7 [verdict form insufficiently described elements of offense but referred to guilt “‘of the offense charged’”]; People v. Reddick (1959) 176 Cal.App.2d 806, 819-821, verdict form contained wrong Penal Code section but included phrase “‘as charged in count 1 of the information’”]; People v. Trotter (1992) 7 Cal.App.4th 363, 370, the “incorrect wording [of the enhancement] was found in a preprinted verdict form given to the jury after they were properly instructed as to use. The error in the form was inadvertent, not advertent.… The jury filled in the form as they were instructed to do.… This was a textbook example of clerical error”].) The Camacho court observed:
“In each of these cases, the reviewing courts gave effect to the manifest intention of the jury by disregarding the errors and surplusage. [Citations.] The same should be done here. The information correctly charged the offense of second degree robbery in count two, the trial court instructed the jury on robbery in count two, the parties’ arguments conformed to the information and instructions, and the jury found defendant guilty ‘as charged in count 2.’ It is evident that the reference to carjacking is a clerical error and the jury convicted defendant of second degree robbery.” (Camacho, supra, 171 Cal.App.4th at pp. 1274-1275.)
Following Camacho and the authorities discussed therein, we similarly conclude the mistaken reference to murder in the verdict forms in this case was an inadvertent clerical error that may be disregarded. Viewing the record as a whole, the jury’s unmistakable intent was to find the gang enhancements true as to each of appellant’s crimes and not just the crime of murder of which appellant was acquitted. The first amended information correctly alleged the gang enhancements. Appellant pled not guilty and denied the allegations. The trial court properly instructed the jury that it was required to make separate findings on the gang enhancements for each crime charged against the defendants. The argument of counsel also reflected the understanding the jury was to decide whether each defendant committed his or her crimes for the benefit of, at the direction of, or in association with the Bulldog gang. Finally, the jury was given separate verdict forms for each defendant for each count. As seen above, the jury was asked to enter its true or not true findings on the enhancement allegations immediately below its guilty findings on the substantive offenses in the same verdict form.
The instruction on the gang enhancements stated in part: “If you find the defendants guilty of the crimes charged in Counts 1 through 4, or any of the lesser offenses, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.”
For example, the prosecutor argued: “Next, we get to what I call the S.T.E.P. Act, the 186.22. This applies to each and every count; Count One, Two, Three and Four. And what does it say? It says the defendant committed or attempted to commit the crime, for what? The benefit of, or at the direction of, or in association with the Bulldogs.… And if you notice, I asked [the gang expert] that question for each and every defendant, the benefit, he gave an opinion. The direction, he gave an opinion. The association, he gave an opinion.… [¶] Next, the defendant intended to assist, further, or promote criminal conduct by gang members. Note, it doesn’t say they intended to benefit the gang; it says, did they intend to assist criminal conduct by gang members. This conduct that took place in that house is criminal. You have the rape, you have the attempted rape, you have the false imprisonment, and you have the murder. Did their actions assist in either of those? Yes. If you find that their actions assisted in either of those … S.T.E.P. Act proved.”
Appellant’s reliance on our decision in Soto, supra, 166 Cal.App.3d 428 is misplaced. In Soto, the jury returned a verdict form expressly finding the defendant “not guilty” of murder but also fixing the murder to be of the second degree. (Soto, supra, 166 Cal.App.3d at p. 432.) The jury further found the defendant was armed in the commission of the murder. (Ibid.) The trial court and counsel both assumed the jury had found the defendant guilty of second degree murder. (Id. at pp. 432-433.) The day after the jury was discharged, the trial court noticed the ambiguity in the verdict form and reimpaneled the jury to resolve the ambiguity. The jury then found the defendant guilty of second degree murder. (Id. at p. 433.)
We identified the primary issues on appeal as “first, whether the trial court erred in reimpaneling the jury to correct an ambiguity in the murder verdict after the jury had been discharged and the jurors had left the courtroom; second, if the court did so err, what is the result of the ambiguous verdict as originally returned.” (Soto, supra, 166 Cal.App.3d at p. 431.) We concluded:
“In answer to the first question, we hold that the trial court had no power to reimpanel the jury after its discharge and the jurors had left the courtroom; hence, the later verdict of second degree murder and its entry in the record were of no effect. In answer to the second question, we hold the original verdict returned by the jury may not be construed as a conviction of second degree murder but only as a general verdict of acquittal of murder. As a consequence, the double jeopardy clauses of the federal and state Constitutions forbid a remand for a new trial. [The defendant] is entitled to the entry of a judgment of acquittal on the murder charge.” (Ibid.)
In reaching this conclusion, we acknowledged that “some cases have held that uncertain verdicts will be liberally construed and their validity sustained if the intention of the jury can be clearly seen.” (Soto, supra, 166 Cal.App.3d at p. 437.) However, we distinguished such cases on the ground that none “involve[d] an explicit finding of ‘not guilty’ of the crime charged.” (Ibid.) In considering the legal effect of the verdict form originally returned by the jury, we cited People v. Tilley (1901) 135 Cal. 61, 62-63:
“[T]he Supreme Court, after noting that the form of the verdict is to be regarded as immaterial if ‘the intention to convict of the crime charged be unmistakably expressed’ (italics added), then noted Penal Code section 1162 which states ‘no judgment of conviction can be given unless the jury expressly finds against the defendant upon the issue,.…’ (Italics added.) From this the court concluded ‘there is no room for inference outside the words of the verdict. These must express the intention unequivocally; otherwise, the verdict must be regarded as insufficient.’ (Italics added, [citation].) Under these principles, the colloquy which occurred between the court and counsel in the jury’s presence concerning second degree murder cannot be used to clarify the words of the verdict.” (Soto, supra, 166 Cal.App.3d at p. 437.)
We concluded that because the verdict form expressly found the defendant “not guilty” of murder and did not expressly find him “guilty” of second degree murder, we were unable to construe the verdict to find the defendant guilty of second degree murder. (Soto, supra, 166 Cal.App.3d at p. 438.) “To do this would be an impermissible alteration of a verdict contrary to the defendant’s right to an unequivocal verdict on the question of his guilt.” (Ibid.)
The asserted applicability of Soto to the present case rests on the assumption the verdict forms here were ambiguous or uncertain. However, this assumption is unsupported by the record, which, for reasons discussed above, clearly evinced the jury’s intent to find the gang enhancements to be true for each count despite the mistaken reference to murder in the verdict forms. Although the jury expressly found appellant not guilty of murder, we find no basis in Soto for concluding the jury’s not guilty finding on the murder count nullified the jury’s true findings on the gang enhancement allegations which appeared directly below the substantive offenses of which appellant was convicted. Even though the gang allegations referred to the crime of murder, we are confident, in light of the record discussed above, the jury would have understood the enhancement allegations to refer to the substantive offenses directly preceding them and not to the crime of murder, which was covered in a separate verdict form.
In conclusion, the instructions given in this case, together with the parties’ arguments and the verdict forms, made it clear to the jury that it was to return findings for the gang enhancements alleged in connection with each crime. Thus, despite the mistaken reference to murder in the verdict forms, the jury’s intent to convict appellant of involuntary manslaughter, attempted rape, and imprisonment by violence and to find true the gang enhancements attached to these counts was unmistakably clear. Accordingly, we disregard the defect identified by appellant in the verdict forms to give effect to the jury’s clear intent to return true findings on the gang enhancement allegations included in each count on which appellant was convicted.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., LEVY, J.
“WE, the jury in the above-entitled action, find the defendant MICHELLE DELORES MOLINA, GUILTY of VIOLATION OF SECTION 192(b) OF THE PENAL CODE, INVOLUNTARY MANSLAUGHTER, of Courtney Sherrie Rice, a lesser included offense of Count One of the First Amended Information filed herein. [¶] We further find to be true, within the meaning of Penal Code Section 186.22(b)(1), that the murder was committed for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members.”
The guilty verdicts for count three, attempted rape, and count four, false imprisonment, follow the same pattern. The guilty verdict for count three also included a true finding on a tying and binding enhancement (§ 667.61, subd. (b)) which the trial court later struck as inapplicable to the crime of attempted rape.