Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. BA262500. Curtis B. Rappe, Judge.
Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant Guillermo Navarro.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Arturo Barajas.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Alfred Jess Renteria.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez, and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Guillermo Navarro (Navarro), Carlos Arturo Barajas (Barajas) and Alfred Jess Renteria (Renteria) (sometimes collectively referred to as defendants) were convicted of first degree murder (Pen. Code, § 187, subd. (a)) of a Black inmate, Kristopher Faye (Faye), during a riot in Module 2900 in the Men’s Central Jail in Los Angeles (Module 2900).~ The jury found that all three defendants personally used a deadly weapon (§ 12022, subd. (b)(1)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
Carlos Armando Aguilera (Aguilera) and Enrique Cesar Lopez (Lopez) were also charged with the murder of Faye. According to Barajas, the defendants were jointly tried with Aguilera but not Lopez. The jury did not reach a verdict as to Aguilera. Aguilera and Lopez are not parties to this appeal. According to Renteria, Lopez was convicted of voluntary manslaughter after a court trial.
Barajas, Navarro and Renteria appealed and joined in the arguments of the others. They seek reversals of their convictions on the following grounds: (1) there was insufficient evidence of guilt; (2) the prosecution was improperly permitted to offer prejudicial gang evidence; (3) the defendants were entitled to, but did not receive, a voluntary manslaughter instruction; (4) the trial court committed instructional error as to CALCRIM Nos. 220, 315, 401, 520, and 1403; (5) the defendants should have been able to introduce the out-of-court statements of a witness who invoked the privilege against self-incrimination; (6) they were prejudiced by cumulative error; and (7) they received ineffective assistance of counsel.
We find no error and affirm.
FACTS
On January 12, 2004, over 100 inmates were housed in Module 2900. The module had two tiers, Abel Row below and Baker Row on top. On one side of Abel Row there were cells. On the other side, against the wall, there were 18 double bunk beds. Between the cells and beds was a walkway referred to as the freeway. The cells were left open to allow inmates to use the showers and toilets.
As Branden Johnson (Johnson) and Faye walked down the freeway on Abel Row, a Hispanic man punched Faye in the face and a riot started. Inmates were thrown over the railing on Baker row, while others were hit with socks containing apples or soap. Other inmates wielded knives and shanks. A Hispanic man was stabbed in the head. Faye ran into cell 4 on Abel Row and was attacked by Hispanic inmates.
Faye died from 26 stab wounds.
The defendants were tried for first degree murder.
Victor Munoz (Munoz), an inmate, testified that prior to the attack he saw 15 to 30 “Mexicans” packed into a cell and heard a man with Canoga tattooed on his head say, “[B]e ready.” Shortly after the meeting, Munoz saw Faye and other Black men walking along the freeway. A Hispanic man hit Faye with his fist. A riot started. The man who attacked Faye was about five feet ten inches to six feet tall. He was stocky, with no facial hair. His nose was kind of smashed. Canoga was tattooed on the back of his head.
Richard Valdemar (Valdemar), a gang expert, identified Navarro as a member of the Canoga Park Alabama gang.
The man with the Canoga tattoo and others chased Faye into cell 4 on Abel Row. While Faye was trapped, the man with the Canoga tattoo hit him with “a gray piece of something” in a stabbing or punching motion. It could have been five or 10 times. Faye was also hit by a heavy set Mexican with a thick, “Fu Manchu” mustache that went down to his chin. The heavy set Mexican had a shaved head. He had a tattoo on his arm and a purple wristband. A third attacker was also a heavy set Mexican. He had a thick, regular mustache and a shaved head.
When Munoz was interviewed on February 4, 2004, he was asked to identify Faye’s attackers. After Munoz was admonished that he was under no obligation to make identifications, he looked at a series of photographs. Munoz identified Navarro from the first six pack, Barajas from the second six pack, and Renteria from the last six pack. Regarding Navarro, Munoz wrote down the following comments: “Stabbed the Black guy in the back a lot of times”; “This person had Canoga on the back of his head.” As to Barajas, Munoz wrote that the “[p]erson was stabbing the Black guy in the back many times.” Finally, when identifying and commenting on Renteria, Munoz wrote the following: “Along with the other two men this one . . . also stabbed the Black guy in the [Abel] row cell 4.”
The photographs were presented in groups of six. When presented in this manner, they are commonly referred to as “six packs.”
At trial, the lawyers and witnesses referred to people depicted in specified exhibits in lieu of using their names. According to Renteria’s opening brief, Navarro was depicted in exhibits 41 and 49, which corresponded to photo B. Barajas was pictured in exhibits 42 and 51, which set forth photo K. Renteria’s photo, photo N, was in exhibits 43 and 52. A fourth person, Aguilera, was in photo O, which was also in exhibit 43. We accept Renteria’s representation. It was adopted by Barajas and Navarro by joining Renteria’s arguments.
Munoz testified that Barajas and Renteria were at the meeting where Navarro told everyone to be ready.
Three other inmates testified: Johnson, Robert Betsch (Betsch), and Mark Wise (Wise). Their stories were inconsistent.
Stephan Schliebe (Schliebe), a criminalist, testified that he investigated the crime scene. Fifty-seven items of evidence were collected, and he took photographs. His first set of photographs showed a bloodstained towel, a sock containing an apple, and bloodstains on the floor. In cell 1 on Abel Row, a photograph displayed a metal pipe that was approximately 28 inches long. Other photographs showed, inter alia: a metal bar; two apples in an athletic sock; two white socks containing three hand-made knives; a bloodstained sheet; two halves of a broken broom head; a dried pool of blood on the floor of Abel Row; a bag of trash that contained a hand-made metal knife and two bloodstained T-shirts; a bloodstained T-shirt on the floor of cell 5 on Abel Row; a hand-made knife in a toilet; a hand-made knife on the ledge of a vent; bloodstains on the sink in cell 5 on Abel Row; bloodstains on the floor outside of cell 5 on Abel Row; and a bloodstained T-shirt on the lower bed of the bunk just outside of cell 5 on Abel Row.
All together, 13 shanks were collected, including four from Baker Row. Sheriff’s deputies seized clothing from various inmates, but no clothing from Navarro, Barajas, Renteria or Aguilera. Schliebe examined and swabbed Navarro’s hands and did not find any bloodstains. The only other inmate Schliebe examined was Rolando Martinez (Martinez). Schliebe did not find noticeable blood in cell 4 of Abel Row.
Valdemar, a gang expert, testified that at the time of the attack on Faye, Navarro was an active member of a street gang known as Canoga Park Alabama; Barajas was an active member of a street gang known as Florencia 13; and Renteria was an active member of a street gang known as East L.A. 13. Each of these street gangs was in a coalition called Sureno that owed allegiance to the Mexican Mafia.
The Mexican Mafia writes the rules that Sureno members follow when they are in custody. In Los Angeles County jails, the rules are designed to build power. The members must put aside rivalries on the outside and act as a group. They are at war with the Black gangs. One of the primary activities of the Surenos is assaulting and murdering people. There is no formal structure to Sureno, but there is a hierarchy. The Mexican Mafia or a representative appoints a loyal Sureno to be in charge of an area. That person is tasked with enforcing the Mexican Mafia’s rules and regulations.
In Valdemar’s opinion, the stabbing of Faye was consistent with an attack by Sureno gang members on a Black gang member.
During Valdemar’s testimony, defense counsel submitted CALCRIM No. 1403 as a limiting instruction on the use of gang evidence. The trial court instructed the jury with portions of that instruction. Subsequently, Valdemar testified that Jose Luis Orozco (Orozco), a Hawaiian Gardens gang member, killed a deputy sheriff in the street and the crime benefited Sureno.
Detective Jose Gonzalez of the Los Angeles Police Department testified about the Canoga Park Alabama gang. He explained that its primary activities were murder, attempted murder, assault with a firearm and drug dealing, and opined that Navarro was a member.
Renteria called Dr. Mitchell Eisen to testify regarding memory and the effects of post-event information on witness suggestibility. He explained that when stress increases, a person’s ability to handle information decreases. When he was asked about studies and their conclusions, the prosecution objected. The objections were sustained. Dr. Eisen went on to offer an opinion that time delay effects memory and that the confidence of a witness is not generally well related to that witness’s accuracy.
Aguilera called Brandon Nichols (Nichols), another inmate. He testified out of the presence of the jury and admitted that he spoke to Johnson and an investigator after the riot. Nichols invoked his Fifth Amendment privilege not to answer questions about those conversations. As a result, defense counsel requested that the trial court consider Nichols unavailable for trial so the investigator could testify as to Nichols’s out-of-court statements. The request was denied because there was no showing of trustworthiness.
After deliberating, the jury found Barajas, Navarro and Renteria guilty of first-degree murder (§ 187, subd. (a)). It also found that all three defendants personally used a deadly weapon (§ 12022, subd. (b)(1)) and that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Navarro was sentenced to 51 years to life for first degree murder. Barajas and Renteria were each sentenced to indeterminate terms of 25 years to life for first degree murder, and an additional year for the use of a deadly weapon pursuant to section 12022, subdivision (b)(1).
Not every objection and argument was made by each of the defendants and preserved for appeal. Nonetheless, for the sake of simplicity and unless otherwise indicated, we analyze the issues as to all defendants.
I.
Sufficiency of the Evidence
The defendants contend that their convictions should be reversed because there was no forensic evidence linking them to Faye’s murder; the prosecution’s witnesses lacked credibility; and the identification procedures were unreliable. The People contend that the defendants were convicted based on an aiding and abetting theory, and that there is ample evidence to affirm.
We agree with the People.
A. Standard of review.
When a defendant in a criminal case challenges the sufficiency of the evidence supporting his conviction, we ask “whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Jones (1990) 51 Cal.3d 294, 314.) We view the evidence in the light most favorable to the prosecution and must presume every fact the jury could reasonably deduce from the evidence. (Ibid.) We resolve conflicts in the evidence and questions of credibility in favor of the verdict. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal based on insufficiency of the evidence is “unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. The law of murder and aiding and abetting.
Murder is the unlawful killing of a human being will malice. (§ 187, subd. (a).)
Section 31 provides that all persons involved in the commission of a crime, “whether they directly commit the act constituting the offense, or aid and abet in its commission, or . . . have advised and encouraged its commission,” are considered principals “in any crime so committed.” Our Supreme Court instructs: “A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
C. The testimony of Munoz, Schliebe and Valdemar supports the convictions.
The trier of fact has the duty of resolving credibility issues. That resolution, with few exceptions, must be credited on appeal. Indeed, we accept the testimony of a witness which supports a judgment unless the testimony suggested physically impossible or inherently improbable facts. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.)
When Munoz was interviewed by the police sometime after the riot, he said he would have no trouble identifying the assailants. He testified about his six pack identifications. On the back of his identification of Navarro, Munoz wrote: “Stabbed the Black guy in the back a lot of times. [¶] . . . [¶] This person had Canoga on the back of his head.” With respect to his identification of Barajas, Munoz wrote: “Person was stabbing the Black guy in the back many times.” As to Renteria, Munoz noted: “Along with the other two men[,] this one . . . also stabbed the Black guy in the Abel [row], cell 4.”
After he took the witness stand, Munoz was asked to recount what he saw. He said that Navarro was the person who told a group of inmates to be ready, and that both Barajas and Renteria were present during that meeting. When the riot started, Munoz saw the man with the Canoga tattoo—based on all the evidence, this was Navarro—hit Faye on the freeway. Navarro chased Faye into cell 4 on Abel row, caught him and began hitting him with a “gray piece of something” in the back. It could have been five or ten times. Navarro was making a stabbing or punching motion.
Munoz saw “a lot of Mexicans” strike Faye. According to Munoz, “[i]t was a group activity.” Faye was on the floor. They were “hitting him, stabbing him.” People were hitting Faye with their hands, feet, poles and sticks. Referring to Barajas, Munoz stated: “They were doing a stabbing motion, or hitting [Faye]. They were hitting.” Munoz testified that he saw Renteria make a stabbing motion at Faye. The evidence further showed that Faye died after receiving 26 stab wounds. Schliebe recovered multiple weapons of various types from the crime scene.
Valdemar opined that the attack was consistent with a Sureno attack on Black gang members. When put together, the testimony of Munoz, Schliebe and Valdemar suggests that the Surenos carefully collected weapons in anticipation of a planned riot and attack on Black gang members.
This evidence supports the defendants’ convictions; it permits a finding that the attack arose from a premeditated riot, the defendants participated in the attack on Faye and stabbed him, which supported the first degree murder conviction and finding of personal use of a weapon. Regarding aiding and abetting, the evidence shows that the defendants helped subdue Faye in a concerted, group action so he could be stabbed by others. As a result, there is a permissible inference that the defendants knew of the unlawful purpose of the perpetrators and that they intended to facilitate the crime. The testimony of Munoz, Schliebe and Valdemar is substantial and is not inherently improbable or physically impossible. And the absence of forensic evidence is not a trump card that negates their testimony.
In the defendants’ view, the testimony of Munoz was a house of unreliable cards that no jury was entitled to believe because Munoz lied, told inconsistent stories, the identification procedures used by the police were fatally flawed, and his testimony was inconsistent with that of Johnson, Betsch and Wise. But even if true, those were issues for the jury to resolve. We must affirm if there is a hypothesis that there is substantial evidence. Here, that hypothesis exists.
II.
Gang Evidence
The defendants contend that the trial court deprived them of a fair trial by permitting unlimited gang evidence, evidence of their criminal histories and custody status, and the unrelated murder of a police officer outside the jail by Orozco, a Hawaiian Gardens gang member. We disagree.
A. Standard of review.
When an appellant claims that the erroneous admission of evidence violated his federal constitutional rights to due process, rendering his trial fundamentally unfair, we ask whether there are permissible inferences the jury may draw from the evidence. If the answer is no, we ask whether the evidence was of such a quality that “‘necessarily prevents a fair trial.’ [Citations.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 229 (Albarran).) If the answer is yes, we infer that “‘the jury must have used the evidence for an improper purpose.’ [Citation.]” (Ibid.) Whether a due process violation leads us to affirm or reverse rests on our application of Chapman v. California (1967) 386 U.S. 18, 23-24. Thus, we must reverse unless the state can demonstrate beyond a reasonable doubt that the due process violation did not contribute to the verdict. (Albarran, supra, 149 Cal.App.4th at p. 229.)
B. Section 186.22, subdivision (b).
Under section 186.22, subdivision (b), a defendant is subject to a sentencing enhancement if he is convicted of a felony committed for the benefit of a criminal street gang. The prosecution has to prove the existence of a criminal street gang, as defined by subdivisions (e) and (f) of section 186.22, and that the defendant had the specific intent to promote, further or assist in any criminal conduct by gang members. A criminal street gang is an ongoing organization having as one of its primary activities the commission of one or more criminal acts, such as assault with a deadly weapon, homicide or the sale of drugs. (§ 1866.22, subd. (e).)
C. Objection to unlimited gang evidence.
Below, the defendants argued that the prosecution was using Valdemar as a “garbage truck” to offer hearsay and other evidence not relevant to the gang enhancement allegation. Further, they objected to any reference to Sureno “hits” without a limiting instruction. The defendants now argue that the trial court deprived them of due process and a fair trial.
We perceive no error. The defendants did not raise their federal concerns below, which means that their arguments have been forfeited. (People v. Stanley (2006) 39 Cal.4th 913, 953.) In limited circumstances, a due process argument can be advanced for the first time on appeal. But that is only when the due process argument mirrors a timely Evidence Code section 352 objection made during trial. (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).) The defendants did not object based on Evidence Code section 352. They objected based on relevance and hearsay.
D. Objection to evidence of criminal history and custody status.
Valdemar testified that the defendants were gang members and he relied on his review of police reports, police contacts in and out of custody, and criminal histories in forming his opinion. Only Renteria objected based on Evidence Code section 352. Nonetheless, we presume that each of the defendants preserved his due process argument.
We are mindful that past criminal acts are generally inadmissible to prove a defendant’s criminal propensities or bad character, and cannot be used to suggest that it is reasonable to infer that he committed the crime being tried. (People v. Perez (1981) 114 Cal.App.3d 470, 477.) The evidence is “admissible only when it [is] logically relevant to some material issue in the particular prosecution other than as character-trait evidence.” (Ibid.) Based on this law, the defendants argue that testimony about criminal history, police contacts and custody status was not needed to establish gang membership. In their opinion, their tattoos were adequate evidence.
This argument is unpersuasive. Valdemar needed to rely on more than tattoos to establish that, at the time of the crime, the defendants were current rather than former gang members. Tattoos, by themselves, did not establish gang membership at the relevant time, and therefore the gang furtherance allegation, beyond a reasonable doubt. As well, Valdemar’s testimony would have been thin, and perhaps not credible, if based only on tattoos. He had to lay a foundation. In other words, there were permissible inferences the jury could draw from the evidence, i.e., due to the breadth of his knowledge, Valdemar’s opinions were valid. And, as the trial court indicated, the jury was well aware that the defendants were in custody. Faye was murdered by the defendants while incarcerated in Module 2900. So mention of the defendants being in custody was not prejudicial.
As a bulwark, the record discloses a proper exercise of discretion. The trial court recognized that a gang expert can rely on hearsay. (People v. Duran (2002) 97 Cal.App.4th 1448, 1463.) Expert testimony may be based on material that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of the type relied upon experts in the field. (Ibid.) “Thus, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. [Citations.] Likewise, an individual’s membership in a criminal street gang is a proper subject for expert testimony. [Citations.]” (Id. at pp. 1463–1464.) In our view, the probative value of the evidence was not outweighed by any undue prejudice, and the trial court’s rulings did not exceed the bounds of reason.
E. Objection to evidence of Orozco’s murder.
Below, the defendants objected that Orozco’s crime was irrelevant because it happened outside of the county jail. Partida precludes the defendants from arguing due process for the first time on appeal.
III.
The Failure to Instruct on Voluntary Manslaughter
The defendants urge us to conclude that they are entitled to a new trial because the trial court did not give a voluntary manslaughter instruction and thereby violated their right to a jury trial and due process.
We cannot adopt this position.
A. Standard of review.
We review claims of instructional error on an independent basis because they involve questions of law. (People v. Alvarez (1996) 14 Cal.4th 155, 217.) The rule is that a trial court must instruct on a lesser offense necessarily included in the charged offense “if there is substantial evidence that only the lesser crime was committed.” (People v. Birks (1998) 19 Cal.4th 108, 112.)
B. The law of voluntary manslaughter.
Voluntary manslaughter is a lesser included offense of intentional murder based on an intentional and unlawful killing committed without malice. (People v. Rios (2000) 23 Cal.4th 450, 461.) Malice is absent when a person kills while acting in a sudden quarrel or heat of passion, or due to imperfect self-defense, i.e., the defendant unreasonably but in good faith believed that he had to defend himself. (Ibid.) Imperfect self-defense is established if the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
C. A voluntary manslaughter instruction was not appropriate.
The defendants assign error to the trial court’s refusal to give a voluntary manslaughter instruction because, in their minds, “there was ample evidence that the African-Americans started the riot, and the Hispanic inmates believed they had to defend themselves.” We turn to this issue.
The first record reference provided to us is reporter’s transcript, page 1429. The importance, we are told, is that it establishes that Johnson and Faye started the riot. But on that page in the reporter’s transcript there is not an iota of testimony. It contains a colloquy in which defense counsel complains that the testimony of deputy sheriff Marco Encinas did not make sense. Defense counsel maintained that Johnson and Faye were part of attacks by Blacks on Hispanics. On the heels of this, we are directed to consider statements by Valdemar that Black gangs would hold “kangaroo courts” to mete out justice in the jails, and the Surenos would decide what food could be eaten, how it would be eaten, who would take showers, what toilets people would use, and where people would sleep. Valdemar explained that if the deputy sheriffs did not create rules, then the prison gangs would create rules. Our attention is then pulled to pages 1404 to 1407 and 2974 to 2975 of the reporter’s transcript. Therein, counsel argued that the conditions in Module 2900 spurred spontaneous action in his client without deliberation or willfulness. Further, counsel claimed that Faye held a shank as a stabbing utensil.
From the defendants’ vantage, the riot was the result of overcrowding, the deputy sheriffs’ surrender of control, and the inmates’ total lack of personal safety. This theory, the defendants maintain, was consistent with the evidence that two Blacks descended from Baker row, one on each end of Abel row, and started the melee in a pincer-like action. The problem is multitudinous. There is no evidence that Johnson and Faye started the riot. Even if there was evidence that they or other Blacks started the riot, there is no evidence that the defendants believed they were in imminent danger of death or great bodily injury while Faye was on the floor in cell 4 of Abel row and being hit and stabbed in the back. Further, there is no evidence that the murder of Faye was due to heat of passion. The testimony of Munoz, Schliebe and Valdemar suggested that the riot was premeditated.
IV.
Jury Instructions
The defendants argue that the trial court erred by giving CALCRIM No. 220; failing to modify CALCRIM No. 315 with an instruction pinpointing the defendants’ theory of the case; giving CALCRIM No. 401 regarding aiding and abetting; giving the implied malice portion of CALCRIM No. 520; and failing to edit CALCRIM No. 1403. After analyzing these issues, we find no error.
A. Standard of review.
We review the correctness of jury instructions on an independent basis. (People v. Griffin (2004) 33 Cal.4th 536, 596.)
B. CALCRIM No. 220.
The defendants contend that they were denied due process when the trial court instructed pursuant to CALCRIM No. 220. We disagree and therefore find that CALCRIM No. 220 is proper.
CALCRIM No. 220 provides: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove [each element of the crime and special allegation beyond] a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt . . . . [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the enter trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find him not guilty.”
We reject the defendants’ contention that telling a jury to impartially compare and consider all the evidence that was received throughout the trial negated the presumption of innocence because it thereby suggested that the defendants had to mount a defense. The court in People v. Flores (2007) 153 Cal.App.4th 1088, 1092, held otherwise, and so do we. CALCRIM No. 220 effectively communicates that there is a presumption of innocence and that a defendant can only be convicted if the evidence establishes guilt beyond a reasonable doubt.
Neither do we agree that defining reasonable doubt as an abiding conviction results in constitutional infirmity. The defendants contend that the phrase abiding conviction conveys the idea of a determination that will last, but it cannot convey the idea of a conviction based on weighty evidence. They argue that an instruction must have objective and subjective moorings—a reasonable and moral certainty—so that a conviction has weight and depth. But Victor stated that “[a]n instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof. [Citation.]” (Victor v. Nebraska (1994) 511 U.S. 1, 14–15.) We have no cause to revisit a settled issue.
C. CALCRIM No. 315.
The defendants contend that the trial court deprived them of their constitutional rights when it instructed the jury with CALCRIM No. 315 but did not pinpoint their theory of the case, which was that the stories and identifications of the eyewitnesses were tainted by post-event information. Additionally, they argue that CALCRIM No. 315 is improper because it suggests that confidence and accuracy are proportional. We conclude that the instruction given was appropriate.
The trial court instructed: “You’ve heard eyewitness testimony identifying the defendant. As with any other witness[,] you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony[,] consider the following questions: [¶] Did the witness know or have contact with the defendant before the event[?] [¶] How well could the witness see the perpetrator[?] [¶] What were the circumstances affecting the witness’[s] ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation[?] [¶] How closely was the witness paying attention[?] [¶] Was the witness under stress when he or she made the observation[?] [¶] Did the witness give a description and how does that description compare to the defendant[?] [¶] How much time passed between the event and the time when the witness identified the defendant[?] [¶] Was the identification the product of the witness[’s] own observations[?] [¶] Was the witness asked to pick the perpetrator out of a group[?] [¶] Did the witness ever fail to identify the defendant[?] [¶] Did the witness ever change his or her mind about the identification[?] [¶] How certain was the witness when he or she made an identification[?] [¶] Are the witnesses and the defendant of different races[?] [¶] Were there any circumstances affecting the witness’ ability to make an accurate identification[?] [¶] Was the witness able to identify other participants in the crime[?] [¶] Was the witness able to identify the defendant in a photographic or physical lineup[?]”
A trial court is not required to “‘instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction.’ [Citations.]” (People v. Garvin (2003) 110 Cal.App.4th 484, 489.) “‘[I]n appropriate circumstances’ a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case . . . . [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].” (People v. Bolden (2002) 29 Cal.4th 515, 558.) An instruction is argumentative if it invites the jury to draw inferences favorable to one of the parties from specified items of evidence. (People v. Panah (2005) 35 Cal.4th 395, 486.)
In light of these authorities, the suggested modification was argumentative because it invited the jury to draw inferences favorable to the defense by suggesting that that post-event information necessarily had an impact on a witness’s testimony. Further, it was duplicative of the portions of CALCRIM No. 315 directing the jury to consider how much time passed between the event and the time when the witness identified the defendant; whether the identification was the product of the witness’s own observations; and whether there were circumstances affecting the witness’s ability to make an accurate identification.
Our analysis is bolstered by People v. Johnson (1992) 3 Cal.4th 1183, 1232 (Johnson). In that case, the appellant requested that the jury be given this instruction: “‘Was the witness’[s] memory affected by intervening time and events? Memory tends to fade over time, and studies show that a witness may subconsciously incorporate into her memory information from other sources.’” (Ibid.) The court explained that “[t]he requested instruction was argumentative, in that it invited the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact. [Citation.]” (Ibid.) Further, the court noted that “the concept that post-event information could contaminate a witness’s identification was adequately covered by other instructions.” (Ibid.)
Further, our Supreme Court held that CALJIC No. 2.92 or a comparable instruction is appropriate “when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” (People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright).) In People v. Johnson, supra, 3 Cal.4th 1183, the court rejected a claim that the trial court erred when it instructed the jury to consider the degree to which the witness was certain. (Id. at p. 1231.) The defendants concede that CALCRIM No. 315 is a rephrasing of CALJIC No. 2.92 and that the language has been approved by our Supreme Court. They indicate that they disagree with the reasoning of People v. Johnson, supra, 3 Cal.4th 1183 and wish to preserve their federal constitutional claim. Because we are bound by Wright and People v. Johnson, supra, 3 Cal.4th 1183, our analysis need not go further.
D. CALCRIM No. 401.
Below, the defendants objected that CALCRIM No. 401 is defective because it suggests that simply being present is sufficient to find guilt as an aider and abettor. On appeal, they claim that it is confusing and does not correctly state the law on aiding and abetting. This leads them to claim that the trial court violated their constitutional rights. This contention lacks merit.
The trial court instructed: “To prove that a defendant is guilty of a crime based on aiding and abetting that crime[,] the People must prove that, one, the perpetrator committed the crime, two, the defendant[s] knew that the perpetrator intended to commit the crime, three, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime and, four, the defendant[s] words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Now, someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to and does in fact aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved[,] the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that a defendant was present at the scene of the crime or failed to prevent the crime you may consider that fact in determining whether the defendant was an aider and abettor; however, the fact that a person is present at the scene of a crime or fails to prevent that crime does not by itself make him or her an aider and abettor.”
There are no published opinions reviewing CALCRIM No. 401 prior to the date the defendants filed opening briefs. But there is one that was published before Renteria filed a reply brief on November 12, 2008. Though Renteria and the other defendants failed to brief it, they had the opportunity to do so. (People v. Alice (2007) 41 Cal.4th 668, 677.) Thus, we may consider it.
In People v. Stallworth (2008) 164 Cal.App.4th 1079 (Stallworth), the appellant argued that CALCRIM No. 401 is constitutionally deficient because it does not explicitly state that mere presence or knowledge is insufficient to establish aiding and abetting liability. The Stallworth court disagreed because CALCRIM No. 401 states: “‘However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.’” (Stallworth, supra, at p. 1103.) Further, CALCRIM No. 401 explains that the People must prove that the perpetrator committed the crime, the defendant knew that the perpetrator intended to commit the crime, prior to or during the crime the defendant intended to aid or abet the perpetrator in committing the crime, and the defendant’s words or conduct did in fact aid or abet the perpetrator’s commission of the crime. (Ibid.) In the view of Stallworth, CALCRIM No. 401 clearly established that knowledge that the perpetrator intended to commit the crime was only one of four elements for a finding of liability. (Ibid.) This establishes that the instruction is neither confusing nor incomplete.
Even if it is not confusing, the defendants contend that CALCRIM No. 401 is defective because it did not instruct the jury that the reasonable doubt standard applies to proof of an aider and abettor’s knowledge and intent. But that was unnecessary because the jury was instructed with CALCRIM No. 220.
Based on this analysis, the defendants were not deprived of due process. The due process clause requires the prosecution to prove all elements of the crime beyond a reasonable doubt (Patterson v. New York (1977) 432 U.S. 197, 210), and CALCRIM No. 403 safeguarded that principle. And, in any event, the jury found that each of the defendants personally used a deadly weapon. In our view, the defendants’ knowledge and intent was established by evidence of the stabbings.
E. CALCRIM No. 520.
CALCRIM No. 520 contains instructions on the elements of murder. The defendants cite People v. Tufunga (1999) 21 Cal.4th 933, 944 [a party is not entitled to an instruction on a theory for which there is no supporting evidence] and argue the trial court should not have given the portion of CALCRIM No. 520 pertaining to implied malice. As we shall discuss, the instruction was proper.
As to implied malice, the trial court instructed the jury as follows: “The defendant acted with implied malice if, one, he intentionally committed an act, two, the[] natural consequences of the act were dangerous to human life, three, at the time he acted he knew that his act was dangerous to human life and, four, he deliberately acted with conscious disregard for human life.”
We find no fault with this instruction. Malice is implied when a killing results from an intentional act, the natural consequences of the act is dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. (People v. Cook (2006) 39 Cal.4th 566, 596.) Here, undeniably, the only evidence of express and implied malice was in the form of inference. If the defendants stabbed and hit Faye, they either intended to kill him or injure him. Both were equally possible. If they intended to injure him, then they intentionally committed an act, it was dangerous to human life, they knew, and they acted deliberately with conscious disregard for human life. Thus, the implied malice instruction was warranted by the evidence.
F. CALCRIM No. 1403.
During Valdemar’s testimony, the defense attorneys requested that the trial court instruct the jury with CALCRIM No. 1403. They agreed that the instruction could be amplified before the jury deliberated. The defendants now argue that the instruction given was improper.
The trial court addressed the jury and stated, “Ladies and Gentlemen, before we get going again let me read to you an instruction that may be amplified in my final instructions but at least so you understand the use of this expert’s testimony at this time I’m going to read this instruction to you and it’s as follows. [¶] You may consider gang evidence of gang activity only for the limited purpose of deciding whether the defendants acted with the intent, purpose and knowledge required to prove the gang-related crimes and enhancements charged in this case or the defendants had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility or the believability of a witness and when you consider the facts and information relied upon by an expert witness in reaching his opinion. [¶] You may not consider this evidence for any other purpose and you may not conclude from this evidence that any defendant is a person of bad character or that he has a disposition to commit any of these crimes.”
At the end of the trial, the trial court read the same instruction to the jury but deleted the reference to gang-related crimes.
The defendants believe that the trial court erred by failing to remove the optional portions of CALCRIM No. 1403. They claim that the trial court violated its duty to give an instruction in a legally correct form (People v. Castillo (1997) 16 Cal.4th 1009, 1015) because no gang-related crime was charged in the case, gang evidence was cumulative on issues of intent, purpose and knowledge and not relevant to prove motive or identification, and gang evidence was not relevant to witness credibility. These arguments are unavailing.
The information alleged that pursuant to section 186.22, subdivision (b)(1), the murder of Faye was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist criminal conduct by gang members. Because this statute required proof of specific intent to assist criminal conduct by a criminal street gang, the evidence was relevant to issues of intent, purpose and knowledge. Whether the gang evidence was cumulative is a question of admissibility, not jury instruction.
Though the defendants assert that the gang evidence was not relevant to the credibility of witnesses, we see it otherwise. It was relevant to the weight to be given to opinions offered by the gang experts.
The reference to gang-related crimes in the first reading of the instruction was not improper. The prosecution bore the burden of proving that the murder of Faye was a gang-related crime by proving that it was committed to benefit a criminal street gang. We reject the defendants’ theory that the reference to gang-related crimes in CALCRIM No. 1403 only pertains to street terrorism in violation of section 186.22, subdivision (a). Section 186.22, subdivision (a) provides that a person who actively participates in any criminal street gang with knowledge that its members engage in a pattern of criminal activity, and who actively promotes felonious criminal conduct by members of that gang, shall be imprisoned in county jail for up to one year or state prison for up to three years. Because both subdivision (a) and (b) of section 186.22 apply to conduct that promotes criminal conduct by a street gang, there is no basis to say one involves gang-related crimes and the other does not.
V.
Exclusion of Out-of-Court Statements of Nichols
Renteria contends that the trial court erred when it excluded the out-of-court statements of Nichols. In Renteria’s opinion, the statements were admissible under Evidence Code section 1230 and he was denied his right to mount a defense. These arguments, however, are unavailing.
A. Standard of review.
We review claims of evidentiary error under an abuse of discretion standard. (People v.Cooper (2007) 148 Cal.App.4th 731, 740.)
B. Nichols’s out-of-court statements were properly excluded.
Nichols was asked whether he told an investigator what Johnson said about the stabbing of Faye. Nichols invoked the Fifth Amendment.
A statement by an unavailable declarant is not made inadmissible by the hearsay rule if the statement was against his penal interest and was sufficiently reliable to warrant admission. (Evid. Code, § 1230; People v. Duarte (2000) 24 Cal.4th 603, 610–611.) The People concede that Nichols was unavailable but contend that his statements were not against his penal interest. Renteria argues that when Nichols invoked the Fifth Amendment, his out-of-court statements were against his penal interest as a matter of law. But “[i]t is well recognized that the assertion of the privilege against self-incrimination does not automatically make the witness’[s] extrajudicial declarations admissible under [Evidence Code] section 1230.” (People v. Johnson (1974) 39 Cal.App.3d 749, 761.) The case Renteria cites, People v. Claxton (1982) 129 Cal.App.3d 638, 665–666, does not hold to the contrary.
Renteria does not explain how Nichols’s repetition of statements Johnson made about the stabbing could implicate Nichols in a crime or otherwise be against his penal interest. This omission fatally undermines Renteria’s argument. As a result, we need not address Renteria’s argument that he was denied his right to mount a defense. That right is not infringed by the application of ordinary rules of evidence. (People v. Lawley (2002) 27 Cal.4th 102, 155.)
VI.
Cumulative Error
The defendants argue that they are entitled to a reversal due to the cumulative effect of multiple trial court errors. But because we conclude that the trial court did not commit any errors, the cumulative error argument is not viable. (People v. Phillips (2000) 22 Cal.4th 226, 244.)
VII.
Ineffective Assistance of Counsel
The defendants contend that their attorneys provided ineffective assistance of counsel by failing to object to CALCRIM Nos. 315 and 1403; failing to move for bifurcation of the gang furtherance allegation; failing to advise them to admit the truth of the gang furtherance allegations; failing to assert a constitutional objection to the introduction of gang evidence; failing to object to evidence of the misconduct of Canoga Park Alabama; and failing to object when the trial court limited Dr. Eisen’s testimony. These arguments do not dictate reversal.
A defendant has a right to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the defendant suffered prejudice as a result. (Id. at pp. 216–218.) In proving prejudice, the defendant must show that, absent counsel’s deficiencies, it is reasonably probable the defendant would have obtained a more favorable result. (Id. at pp. 217–218.)
The defendants were not prejudiced when their attorneys did not object to CALCRIM Nos. 315 and 1403. As previously discussed, those instructions were proper.
Neither were the defendants prejudiced when their attorneys did not file a motion to bifurcate the gang furtherance allegation. The decision to bifurcate a gang furtherance allegation rests within the trial court’s sound discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047 (Hernandez).) The Hernandez court explained that a gang furtherance allegation is inextricably intertwined with the charged offense and there is less need, generally, for bifurcation than with a prior conviction allegation. (Id. at p. 1048.) And nothing in section 186.22 suggests that a gang furtherance allegations should receive special treatment. (Hernandez, supra, 33 Cal.4th at p. 1049.) Evidence of gang membership is often relevant to the charged offense because it can help prove motive, modus operandi, specific intent, and means of applying force and fear. (Ibid.) That was true in this case because it provided the motive and modus operandi for assaults with a deadly weapon by Surenos. In this situation, any inference of prejudice was dispelled and bifurcation was unnecessary. (Id. at pp. 1049–1050.) It is not reasonably probable that a motion to bifurcate would have succeeded or, if it had, the defendants would have escaped conviction. Once the jury believed Munoz, as we presume they did, the convictions were foregone.
Finally, it is not reasonably probable that the defendants would have obtained a better result if they were advised to admit the truth of the gang furtherance allegation or if their attorneys had challenged the constitutionality of admitting gang evidence, objected to the testimony of Detective Gonzalez about the misconduct of Canoga Park Alabama, and objected to the limitation on Dr. Eisen’s ability to discuss the contents of studies he relied upon in forming his opinions. The evidence of liability against the defendants was too strong to overcome.
All other issues are moot.
DISPOSITION
The judgments are affirmed.
We concur: BOREN, P. J., CHAVEZ, J.