Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Ct. No. FSB040007 Arthur Harrison, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant Melecio Junior Reyes.
Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant James Daniel Fuentes.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany and Elizabeth Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
On June 24, 2003, fellow West side Verdugo (WSV) gang members defendant Melecio Junior Reyes (Reyes) and defendant James Daniel Fuentes (Fuentes) drove Reyes’s Thunderbird past Francisco Ferreira. Reyes, who was driving the car, stopped, quickly reversed, and pulled up next to where Francisco was working on his car. Reyes grabbed a gun, reached across Fuentes, and shot Francisco. Francisco died as a result of the gunshot wounds, and defendants were convicted of his murder, in the first degree.
One year prior to this incident, Reyes had been across the street from Francisco’s house with a group of people. Abraham Lopez rode his bicycle past the group. Someone in the group yelled, “West side Verdugo,” and then Reyes shot at Lopez, hitting him in the leg. Ector Ferreira, Francisco’s brother, confronted Reyes about shooting his friend Lopez. Ector told Reyes that Reyes might as well shoot him if he was going to shoot his friend. Reyes then shot Ector in the face. Reyes was convicted of the attempted murders of both Ector and Lopez. These shootings were found to be gang related.
Defendants contend jointly and individually as follows:
1. Both defendants contend that the judgment should be reversed due to Wheeler/Batson error as to three peremptory challenges exercised against three Hispanic jurors.
Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
2. Fuentes claims the prosecutor failed to present sufficient evidence to support that he aided and abetted Reyes in the shooting of Francisco.
3. Fuentes and Reyes contend there was insufficient evidence presented to support their conviction of the gang enhancement pursuant to Penal Code section 186.22, subdivision (b), on the murder of Francisco, and Reyes additionally contends there was insufficient evidence of the gang enhancement for the attempted murder of Ector.
4. Fuentes claims that the gang expert was erroneously allowed to testify as to Fuentes’s mental state.
8. Reyes claims that a mistrial should have been granted after he sustained visible injuries in jail during the trial. (RAOB 43-50.)
9. Reyes contends that the sentence on the gang enhancements on counts 2 and 3 must be corrected. (RAOB 51.)
We find no prejudicial error, but we agree with Reyes that his sentence should be modified. Hence, we modify the sentence and otherwise affirm the judgment.
I
FACTUAL BACKGROUND
A. Shooting of Francisco
On June 24, 2003, Megan Kahookele lived with her boyfriend Francisco at his house located at 218 West 24th Street in San Bernardino. About 4:00 p.m. that day, Francisco was in front of the house working on his car. Kahookele went outside to check on her son and Francisco’s son. She observed a “burgundy” Thunderbird drive westbound on 24th Street. The car drove past Francisco and then stopped about two or three houses down from their house. Francisco immediately told Kahookele to get his brother, Ector, who was inside the house.
Ector was in his room when he heard Kahookele scream very loudly that Francisco was in trouble. Ector ran to the front door of the house. (RT 528, 533.}
Kahookele observed the Thunderbird quickly reverse, heard the tires screeching, and then saw it pull up next to Francisco. The Thunderbird stopped in front of Francisco. There were two male Hispanics whom she later identified as Reyes and Fuentes in the car. Someone in the car started shooting at Francisco. Kahookele made eye contact with the passenger, who was leaning back during the shooting. One of the defendants was wearing a flannel shirt, and the other was wearing a white tank top. The Thunderbird took off westbound at a high rate of speed.
Ector also observed a “red” car pull up next to Francisco. Reyes, whom he identified as Soldier Boy, was in the passenger’s seat. Reyes said to Francisco, “What’s up?” The driver said nothing. Francisco waved his hand at Reyes in response. Reyes reached down toward his lap and grabbed a gun. Reyes then began to shoot at Francisco. Ector heard three gunshots. Francisco fell to the ground and began choking on his own blood.
Maria Medina lived several houses down from Francisco. She also observed what she indicated was a red Thunderbird stop and reverse back to where Francisco was working on his car. The male driver of the Thunderbird pulled out a gun, the passenger leaned back, and the driver shot at Francisco. Medina recalled that the license plate frame on the Thunderbird was red. Medina believed the driver was wearing a white tank top. Both occupants were Hispanic, with shaved heads, between the ages of 16 and 20 years old.
Jose Martinez was in his driveway down the street. Martinez observed a red Thunderbird drive by, stop, and then reverse. He lost sight of the car but heard someone yelling, after which shots were fired. The Thunderbird then sped away.
WSV gang member Melquiades Rojas lived with his mother Denise Rojas across the street from the Ferreira house. His brother, Martin, also of WSV, visited frequently. On June 24, 2003, just prior to the shooting, Reyes (whom Melquiades knew as Soldier) and Fuentes came to the Rojas house asking for Martin. Although Martin was inside the house, Melquiades lied and told them he was not there. Martin had told Melquiades to lie for him.
Denise recalled that a person called Soldier had given Martin two black eyes a day or two earlier.
Denise arrived home at this time to find a car parked in her driveway. She did not recall the type of car. Denise went inside the house and saw two Hispanic males (whom she could not identify at trial). Both her sons were also in the house.
Approximately 10 seconds after Reyes and Fuentes left the Rojas house, Melquiades and Denise heard gunshots. Melquiades also heard tires screeching. Denise, Melquiades, and Martin immediately left in Denise’s car. Denise could not identify the photographs of Reyes and Fuentes as being the two men who were at her house the day of the shooting. She also could not identify a photograph of the Thunderbird as the one at her house that day. Melquiades was afraid when he heard gunshots because he claimed that persons in the Ferreiras’ house frequently shot at his house.
Prior to trial, Melquiades told officers that defendants were driving a red Thunderbird, but he could not identify the car at trial. In addition, prior to trial, Melquiades told Detective Kokesh that defendant Reyes was in the driver’s seat when they left the Rojas’s house.
A female came to Denise’s house prior to the trial and told Denise not to testify. Denise did not call the police immediately. Denise admitted that she was scared to testify. She stated that she was bipolar and suffered from schizophrenia, which affected her memory.
San Bernardino Police Officer Michael Madden arrived at the scene of the shooting after hearing the call about the shooting that went out at 4:02 p.m. Francisco was still lying on the ground bleeding. Kahookele told Officer Madden that the suspects were two Hispanic males who were driving a red Thunderbird. Ector gave the same description of the suspects and the vehicle.
At 4:14 p.m., Detective Bret Baumgartner, then a patrol officer, observed the Thunderbird in an area approximately five to 10 minutes from the shooting location and initiated a traffic stop. The Thunderbird initially began to accelerate, which made Detective Baumgartner believe it was not going to yield to the traffic stop, but it eventually stopped. Reyes was in the driver’s seat; Fuentes was in the passenger’s seat. The license plate frame on the Thunderbird was red. The Thunderbird was registered to Reyes’s mother.
Defendants were ordered out of the car and handcuffed. Reyes was wearing a white tank top; Fuentes was wearing a short-sleeved brown shirt with a pattern. Fuentes initially gave officers a false name and birth date.
A .22-caliber shell casing was found on the right rear floorboard of the car. An ammunition clip for a .22-caliber rifle was found in the console area of the Thunderbird. It did not contain any live rounds. A live shotgun shell was also in the center console. A loaded shotgun was found in the trunk of the Thunderbird, hidden underneath some clothes. Other live shotgun shells were found in the trunk. A photograph found in the trunk depicted several individuals flashing gang signs.
At a field show up, Kahookele identified both defendants and the car as being involved in the shooting. Ector identified Reyes as the shooter and identified the car. He identified Fuentes from the shirt Fuentes was wearing. Martinez was also taken to the field show up. He identified the car as the one involved in the shooting, but he could not identify the defendants.
Gunshot residue tests performed on Francisco and Ector were negative. Gunshot residue tests conducted on both defendants were positive, which meant they had either shot, handled, or been in close proximity to a gun when it was fired.
There were no spent shell casings found in the street or anywhere near the location where the shooting occurred. Francisco’s residence was searched, and no weapons were found inside. The bullets found in Francisco’s body were consistent with the casing found in the Thunderbird, but no tests were conducted to determine if they matched. All three bullets recovered from Francisco’s body were .22 caliber. Witnesses identified the weapon used as a small-caliber handgun.
Ector had shot a gun from inside his house one week prior to Francisco’s shooting. Ector thought someone was hiding behind a tree in his yard and was going to harm him because whoever it was kept yelling his name. He thought it might be Martin, but no one was outside when he went to look behind the tree.
At the police station, Reyes told officers that his gang moniker was Soldier.
B. Shooting of Ector and Abraham Lopez
Around 1:00 a.m. on July 2, 2002 (about a year prior to Francisco’s murder), Ector called Abraham Lopez and invited him over for a beer. Lopez rode his bike to Ector’s house. Lopez’s cousin, Israel Medina, followed behind him. When Lopez turned onto Ector’s street, he immediately saw a group of people in front of the Rojas house. Lopez heard a male voice yell, “West Side mother-fucker.” Lopez was not a member of a gang. In a matter of seconds, Lopez was being shot at. Lopez went to the ground and started crawling to safety. He hid behind a parked car. Israel also immediately went to the ground; he believed he heard more than five gunshots.
As Ector was waiting for Lopez, he heard gunshots in front of his house. Ector went outside and saw Reyes standing by a tree near the Rojas house, shooting at Lopez. Ector confronted Reyes and said, “That’s my friend.” Ector told Reyes that he had “messed up,” that Lopez was like a brother to him. Ector was very upset. He told Reyes, “You shoot at him, shoot at me, too.” Reyes responded, “All right” and shot at Ector’s face. Ector was within eight feet of Reyes.
Lopez and Israel ran across the street to Ector’s house and hid behind another car. Lopez then realized that he had been shot in the leg. The bullet had gone through Lopez’s thigh. Reyes ran to the back of the Rojas house after the shooting.
Melquiades was home at the time of the shooting. They were having a party. Reyes was at the party. Blood was found around both the Ferreira and Rojas residences.
Lopez had to walk on crutches for a month and then with a cane for two months. Ector spent one month in the hospital and almost died. He had a trachea tube in his throat as a result of the shooting and would have it the rest of his life. The bullet remained lodged in his chin. Ector told Israel after he got out of the hospital that Soldier Boy had shot him. Israel did not know who Soldier Boy was.
Ector did not tell the police that Reyes had shot him until after Reyes shot Francisco. Ector told the police he intended to take care of his situation himself but did not have the “balls” to kill Reyes. Ector denied that he thought Martin shot him.
Ector claimed he had been a WSV gang member but had gotten “jumped out,” which involved fighting with other gang members; he had been out of the gang at the time he was shot. Ector claimed that the gang would not come after a former member once he was jumped out. Lopez was not a WSV gang member. Ector’s street was in WSV territory.
Lopez had an encounter with WSV gang members about two months after the shooting. They accused him of having a gun and shooting first the night that he was shot.
C. Gang Testimony
On December 19, 1998, Reyes told a police officer he was a member of the Mt. Vernon gang, which was another name for the WSV gang, and that his gang moniker was Soldier. He did not appear to have any tattoos at that time. On August 15, 2002, Reyes identified himself to an officer as a WSV gang member with a moniker of Soldier. Reyes had a “Verdugo” tattoo, along with an “IE” tattoo. On March 11 and May 29, 2003, Reyes admitted to two different officers that he was a WSV gang member and that his gang moniker was Soldier. At these times, Reyes had an additional tattoo of the words “if they only knew” on his stomach.
On June 27, 2002, Fuentes told an officer that he was an active WSV gang member. Fuentes claimed he had been jumped in by four WSV gang members when he was 11 years old.
Both defendants admitted when they were first jailed for this incident that they were WSV gang members. Reyes told officers at the jail that his moniker was Soldier.
On October 24, 2005, several letters and other items were collected from Fuentes’s jail cell. Numerous letters were from Reyes and other WSV gang members. There were numerous items found that contained gang graffiti. Letters and other items were also found in Reyes’s cell.
Detective Marco Granado testified as a gang expert. The WSV territory consisted of all of western San Bernardino. WSV gang members commonly engaged in homicides, robberies, witness intimidation, drug trafficking and other crimes. Between 2000 and 2005, several WSV gang members were convicted of murder, attempted murder, and assault with a firearm.
It was Detective Granado’s opinion that Reyes was an active member of the WSV gang, specifically the 7th Street Locos clique. He based his opinion on Reyes’s own admissions, his tattoos, and items taken from his jail cell. The letters taken from his cell were from other known WSV gang members, and Reyes was referred to as Soldier. Detective Granado indicated that Reyes’s continuing addition of WSV tattoos showed his increasing status in the gang. The moniker Soldier showed that Reyes was a hardcore member of the gang.
Detective Granado had reviewed gang cards and looked at the items found in Fuentes’s jail cell. In the documents received from Fuentes’s jail cell, several items had WSV gang graffiti. Fuentes had referred to himself as Little Chato, which Detective Granado believed was a gang moniker. Fuentes also had referred to himself in one of the letters as “one of Verdugo’s finest,” showing he was a member of the gang. Fuentes had written several letters to Reyes and called himself “Your Little Homie.” The fact that Fuentes had no gang tattoos was not significant, because some gang members do not want to be classified as gang members and therefore subject to stiffer penalties. Detective Granado believed Fuentes was an active member of the WSV gang based on the documents found in his jail cell, the gang cards, and the instant crimes.
In Detective Granado’s opinion, Reyes was higher in the gang than Fuentes. Fuentes was an “up and comer” in the gang.
Detective Granado had reviewed the reports from both the 2002 shooting of Ector and Lopez and the 2003 shooting of Francisco. It was his opinion that the shooting of Lopez and Ector benefited the gang. He based his opinion on the fact that gang members gain status by committing crimes, the more violent the better. It also showed that the WSV gang was trying to establish some type of turf or neighborhood through intimidation.
As for the shooting of Francisco, Detective Granado also believed it was done to benefit the gang. He based his opinion on the fact that Reyes had been the shooter in the prior incident at the same location, which showed a pattern of his committing gang-related type shootings in the area. It also benefited Fuentes because gang members rarely commit crimes by themselves. It also would be a form of disrespect for Reyes to commit the shooting without Fuentes’s knowledge. Further, a driver of a vehicle in a drive-by shooting gains status by simply being the driver. A passenger in a vehicle from which a shooting is committed gains status for the crime.
Detective Granado also based his opinion that this was a crime committed to benefit the gang based on Denise advising him that Reyes and Martin had been in a fight a few days prior to the shooting. Reyes had given Martin two black eyes. Martin did not fight back because Reyes’s friends had produced handguns during the fight. When Denise saw Reyes and another gang member at her house on the day of the shooting, she presumed that they were there to harm Martin.
The prosecution presented a hypothetical matching the facts of the 2002 and 2003 shootings. Detective Granado believed that that hypothetical would benefit the gang because the gang member was willing to go back to the same location a year later to commit or further his gang’s activity and would personally gain respect due to the fact that he was willing to put in work or do an assault for the gang in the same area. In Detective Granado’s opinion, a gang member would not go back to an area where he previously had been involved in a shooting or assault without being armed and without fellow gang members. The passenger, with knowledge of the prior shooting in the same area, would be “on board” with whatever was going to happen. He based his opinion on his experience with dealing with gang members and investigating gang crimes.
Detective Granado also indicated he believed Fuentes knew what was going to happen the day of Francisco’s shooting based on the letters written from jail showing respect for Reyes. Again, Detective Granado opined that if a gang member committed a crime in the presence of a fellow gang member without the other person knowing, it would be a sign of disrespect. The correspondence found in the jail cells of the defendants between each other showed they were working together.
As for the shooting of Ector, by challenging Reyes, Ector was being disrespectful, especially since Ector was in the WSV gang. Any type of disrespect could not go unanswered.
Detective Granado believed the 2002 shooting was done to promote, further, or assist the criminal conduct by the gang members based on the yelling out of “WSV” prior to the shooting to alert people in the area that the shooting was being committed by gang members. Detective Granado believed that the shooting of Francisco was a carry over from the prior shooting. There was still unfinished business by the gang; it was just a continuing act to further the gang’s involvement in gang activity in the general area.
Detective Granado had no information that Francisco was a gang member. The area of 24th Street and Verdugo was not established by any gang. However, it appeared that WSV was trying to set up the area as gang territory.
D. Defense
Fuentes presented the testimony of Tonja Vargas, his mother, that he did not know how to drive. Reyes presented the testimony of Jeffrey Wagner. On the day of Francisco’s shooting, Wagner was outside playing basketball at a house located down the street from the shooting. About 4:00 p.m. he saw a car drive by but claimed he did not recall the color. After seeing the car, he heard screeching tires and gunshots. He then saw a small car, which he thought was a Geo Metro, driving fast on the next street. This car was different from the one he first saw drive by him.
Wagner also testified he attended the field show up and identified the car in which defendants were detained as the one he saw and also identified Fuentes. He could not identify them at trial.
It was stipulated that Wagner told a police detective immediately after the shooting that the car he first observed was a red Thunderbird containing three male Hispanics, all between 16 to 20 years old. Martinez could not be located for trial.
II
PROCEDURAL BACKGROUND
A jury found both defendants guilty of the first degree murder of Francisco in count 1 (Pen. Code, § 187). The jury found the enhancements true for this count that a principal discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury also found Reyes guilty of the first degree attempted murder of Lopez in count 2 and of Ector in count 3 (§§ 664/187, subd. (a)), with a true finding on the special allegation that the attempted murders were willful, deliberate, and premeditated. The jury made true findings on the enhancements to these two counts, that defendant personally used a firearm causing great bodily injury (§ 12022.53, subd. (d)) and that the crimes were gang related (§ 186.22, subd. (b)(1)). The trial court sentenced Reyes to a total state prison term of 130 years to life. Fuentes was sentenced to 50 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
III
BATSON/WHEELER CLAIM
Both defendants contend that the judgment should be reversed due to Wheeler/Batson error based on the prosecution’s use of three of its peremptory challenges to excuse three jurors with Hispanic surnames. (FAOB 61; RAOB 11-24.)
Reyes refers to the jurors by name in his opening brief. We will refer to the jurors by their juror numbers. Accordingly, we address the peremptory challenges exercised against Jurors No. 14, 35, and 45. The jurors in question here were in the first group of 18 jurors seated in the box. Juror No. 45 was in seat 10; Juror No. 35 was in seat 16; and Juror No. 14 was in seat 18. Juror No. 13, who also had a Hispanic surname, was in seat 13.
A. Additional Factual and Procedural Background
At the beginning of voir dire, after the charges had been read to the jury, Juror No. 48 asked to be excused because she did not want to be involved in a case involving violence.
During voir dire, Juror No. 45 stated that he was single, had no children, lived in Fontana, and was a mailman. He then repeated the same information again. He was asked what impressions he had when he first saw the defendants. He responded, “I went in and I — when I walked in I didn’t see — I didn’t know anything. I just seen them and I thought what are they here for? [¶] And when the judge said they were here for murder, I didn’t say nothing yet, but when he said that they had — they were also accused or found for other charges before that, that’s when I said — I thought maybe they are guilty because they have a history. That’s what I said.” He indicated that he would wait to make a decision in the case until all of the evidence was presented and that he was really going to be looking at the case. In response to questioning about the aiding and abetting law, Juror No. 45 indicated that if all the persons agreed on a criminal act, they are all guilty. He indicated that he would resolve any conflicts in the witness testimony by using common sense and by putting the different pieces together.
Juror No. 35 was single and did not have any children. The record states that she was a “food counselor” at the Riverside juvenile hall. She did not have any prior jury experience and did not know any of the witnesses or attorneys, but she had one friend on the Colton Police Department. She indicated she would not be biased by knowing someone at the police department.
Juror No. 14 was single, had no children, and lived in Riverside. She worked for Riverside County helping with Medi-Cal. She had no prior jury experience and did not know anyone in the trial. Her stepfather’s cousin was a Los Angeles Police Department member. She still lived with her mother and stepfather. Defense counsel for Fuentes asked if the jurors would have trouble waiting until the end to make a decision and not form any opinions during the case. Juror No. 14 responded, “I mean, I know that it’s — I would have to hear like all of the evidence and make absolutely sure that they are for sure guilty. You are not supposed to automatically say they are.” She was also asked, since she appeared to be so young, how she would feel working on a case with older persons. She responded that she looked and acted younger than she really was but that she had “been to college.” She also indicated that she worked with older people at her job.
When asked about bias, Juror No. 14 said she had a minor in sociology. She said those classes taught her to look at things carefully and not automatically assume things. She stated, “I know it’s going to be hard since it’s just witnesses, but I have to be very, very — I have to feel very, very comfortable with this thing.” In responding to whether she would hold the prosecution to a higher standard than reasonable doubt, she responded, “Well, I know it’s difficult to — considering it’s not like DNA or something. So, I mean, I am ready to make that decision.”
The prosecution exercised peremptory challenges against Jurors No. 35, 45, and 48. Fuentes brought a Wheeler/Batson motion claiming that the prosecution had excused three Hispanic jurors, but he noted that Juror No. 48 appeared to be Black. Defense counsel argued that they were all Hispanic jurors and that they all appeared to be unbiased. The trial court stated that the excusal of Juror No. 48 was not surprising, but it was “concerned” about the excusals of Juror Nos. 35 and 45.
The prosecutor responded that he removed Juror No. 35 because she was a juvenile counselor dealing with gang members. The name of the gang in the case had not been disclosed to the jury. The prosecutor was concerned that she might end up knowing persons in the case.
As for Juror No. 45, he repeated his responses to the form questions, which suggested that he had some difficulty understanding things. The prosecutor also mentioned he had a stuttering problem but that it appeared he was able to communicate. Juror No. 45 appeared to misunderstand from the reading of the charges that the defendants had committed prior crimes. The prosecutor was concerned about his ability to understand the case. The prosecution was at a disadvantage if Juror No. 45 did not understand something because it had the burden of proving the case.
The trial court found that the defense had failed to make a primal facie case. It noted that two Hispanic jurors remained on the panel.
When voir dire resumed the following Monday, the prosecutor immediately excused Jurors No. 13 and 14. Defendants again brought a Wheeler/Batson challenge, arguing that five of the previous six peremptory challenges by the prosecution were to Hispanic persons. The trial court concluded that a primal facie showing had been made and asked the prosecutor to state his reasons. The prosecutor first argued that only three of his peremptories were against Hispanic jurors because Juror No. 48 appeared to be Black, and Juror No. 13 appeared to be White.
As for Juror No. 45, the prosecutor noted that he had trouble communicating. The trial court interrupted and stated that Juror No. 45 did stutter but seemed to relax during further voir dire. The prosecutor also noted he had trouble with Juror No. 45 because he appeared to believe that the defendants had a prior record when the jury was never given that information. The prosecutor was concerned that Juror No. 45 would not comprehend witness testimony. The prosecutor also was concerned that if the deliberations became heated, Juror No. 45 would have difficulty communicating.
The prosecutor again stated that he was concerned that Juror No. 35 was a juvenile counselor. The prosecutor had removed a White juror for the same reason. The prosecutor did not want her on the jury because Fuentes was very young when he committed the crime, and he was concerned she would relate to Fuentes due to her work. The prosecutor concluded, “She is dealing with juveniles. She is dealing with delinquents, dealing with gang members.”
The prosecutor excused Juror No. 14 because she was young and inexperienced. Although she claimed to have taken college courses for six years, she appeared very young. The prosecutor noted that she giggled very inappropriately when she answered questions. The trial court stated it believed that any giggling showed she was nervous.
The prosecutor was also concerned because when he had mentioned the case would not be like the CSI television show, she indicated it would be harder to evaluate the case just on witness testimony.
The prosecutor also explained the reasons he struck Jurors No. 13 and 48, even though it did not appear that the trial court was concerned about these jurors. The prosecutor struck Juror No. 13 because she had trouble finding someone guilty if he or she were not the shooter under an aiding and abetting theory. The prosecutor struck Juror No. 48, who appeared to be Black, because she did not want to be on a criminal case. The prosecutor noted that there were two Hispanic jurors still on the panel whom he intended to keep.
The trial court ruled, “Prosecution has given justifications for their excusals. The Court accepts those justifications. I believe they’re honestly given. I do find that the prosecution made these issues pretty close to any line. [¶] I am looking very critically and using my discretion and best judgment in denying the Wheeler motion at this point. But I think everybody needs to understand that the Court is looking very critically at prosecution’s excusals in this case.” (Italics added.)
B. Analysis
“A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a primal facie showing that the prosecutor exercised a peremptory challenge on the basis of race. [Citation.] Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. [Citation.] . . . Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. [Citations.]” (Rice v. Collins (2006) ___ U.S. ___, ___ [126 S.Ct. 969, 973-974, 163 L.Ed.2d 824].) “‘[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ [Citation.]” (Ibid.)
Batson was based on the equal protection clause of the Fourteenth Amendment to the United States Constitution and Wheeler on the right to a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Batson, supra, 476 U.S. at pp. 97-98; Wheeler, supra, 22 Cal.3d at pp. 276-277.) As our discussion will demonstrate, the showing required to prove a constitutional violation under Batson is less than, or at least no greater than, the showing required under Wheeler. Accordingly, if defendants failed to make the required showing under Batson, they necessarily failed to make the required showing under Wheeler. For that reason, we will limit our discussion to the Batson standard.
Here, we are concerned with the third step, since the trial court found a primal facie case and the prosecutor stated his reasons. The trial court’s assessment of the prosecution’s reasons is generally entitled to great deference, but only if the trial court has made a “sincere and reasoned” attempt to evaluate them. (People v. Reynoso (2003) 31 Cal.4th 903, 919; see also People v. Silva (2001) 25 Cal.4th 345, 385-386.) “When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.” (Silva, at p. 386.) In other words, what the prosecutor must show is a race-neutral reason, regardless of its implausibility, for excusing the juror. (Purkett v. Elem (1995) 514 U.S. 765, 767-768 [115 S.Ct. 1769, 131 L.Ed.2d 834].)
The record in this case reveals that the trial court made a sincere and reasoned effort to evaluate the prosecutor’s justifications for excusing the three jurors in question. The trial court’s conclusions are supported by the record of voir dire.
Although Juror No. 35 provided little information regarding her background and experiences, the prosecutor could remove her due to her job in social services. A peremptory challenge based on experience in social services is a proper, race-neutral reason. (People v. Trevino (1997) 55 Cal.App.4th 396, 411; People v. Perez (1996) 48 Cal.App.4th 1310, 1315.) The record supports that she worked at juvenile hall. We believe this was a proper, race-neutral reason for excusing Juror No. 35.
We also believe the prosecution stated adequate, race-neutral reasons for excusing Juror No. 45. The prosecutor had legitimate concerns that Juror No. 45 would be unable to understand the witnesses because he misunderstood the reading of the information. Furthermore, since Juror No. 45 had shown nervousness at the beginning of voir dire as evidenced by his stuttering, the prosecutor reasonably could be concerned he would not be able to stand up for himself if the deliberations became contentious.
Finally, as to Juror No. 14, all of the parties believed that she both acted and looked younger than she actually was, which certainly could go to her being inexperienced. Just like Juror No. 45, the prosecutor could be concerned that this inexperience could affect her ability to effectively deliberate. The record also supports that she expressed some concern that the case “only” involved eyewitness testimony.
We accord the trial court’s conclusions that the prosecution stated adequate, race-neutral reasons deference on appeal. We reject defendants’ contention that the prosecutor’s reasons for excusing Jurors No. 14, 35, and 45 were pretextual and that the prosecutor’s intent was to excuse Hispanic jurors who may be sympathetic to the defendants. The record supports the trial court’s conclusions. As such, we conclude the trial court properly denied defendants’ Batson/Wheeler motions to dismiss the venire.
IV
INSUFFICIENCY CLAIMS
Fuentes contends that there was insufficient evidence presented to support that he aided and abetted the shooting of Francisco. In addition, both defendants claim that there was insufficient evidence presented to support the jury’s true finding on the gang enhancement pursuant to section 186.22, subdivision (b) for the murder of Francisco, and Reyes claims the true finding should also be reversed on the attempted murder of Ector.
A. Standard of Review
Our review of any claim of insufficiency of the evidence is limited. In determining the sufficiency of the evidence, we review the entire record to determine whether the evidence was reasonable, credible, and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331.)
B. Sufficiency of the Evidence that Fuentes Aided and
Abetted the Shooting of Francisco
Fuentes contends that the evidence was insufficient to support his conviction for aiding and abetting the murder of Francisco.
“A ‘person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ [Citation.]” (People v. Marshall (1997) 15 Cal.4th 1, 40.) “[P]resence at the scene of the crime, while insufficient of itself to make one an aider and abettor, is one factor which tends to show intent. Other factors which may be considered include the defendant’s failure to take steps to prevent the commission of the crime, companionship, and conduct before and after the crime. [Citation.]” (People v. Pitts (1990) 223 Cal.App.3d 606, 893.)
As noted by Fuentes, the jury was not instructed on the natural and probable consequences doctrine. As such, Fuentes was found liable only if he aided and abetted the first degree murder of Francisco.
We find ample evidence supporting that Fuentes intended to aid and abet the cold-blooded murder of Francisco. There is no dispute that Fuentes was present during the shooting. Furthermore, he made no attempt to stop the shooting and in fact facilitated the shooting by leaning back to give Reyes a clear shot. Although Fuentes characterizes this action as his attempt to merely get out of the way of the gun, we believe this evidence, combined with other evidence presented, was a strong indication of Fuentes’s intent to aid and abet the murder.
This additional evidence included that defendants were fellow gang members who spent time together. Prior to the crime, defendants had driven together to the Rojas residence and asked to speak with Martin. They then drove by Francisco, backed up, and shot him several times. Based on the eyewitness testimony, Reyes reached down to his lap prior to the shooting and grabbed the gun. Fuentes willingly accompanied Reyes, a fellow gang member, in his car in which a loaded firearm was located in the front seat area. Fuentes surely could anticipate that this could mean trouble.
We note that both defendants refer throughout their briefs to statements made by Denise Rojas during a videotaped interview with Detective Granado conducted prior to the trial. The transcript of the interview was included in the clerk’s transcript. However, the trial court admonished the jurors that the evidence in this case was the videotape, not the transcript. The parties have not asked this court to review the taped interview. As such, we will not consider the evidence in the instant decision. We additionally note that, having reviewed the transcript, it does not appear that the evidence would make a difference in the resolution of this case.
After the shooting, defendants sped off. They were not apprehended until about 15 minutes after the shooting. Fuentes was still in the car. Fuentes did not attempt at any time after the shooting to either exit the Thunderbird or somehow distance himself from the shooting. This was strong evidence that Fuentes was an active participant in the crime.
Finally, the gang expert testified that a gang member would not commit a crime in the presence of another gang member without his knowledge. This would be a form of disrespect. Additionally, after the shooting, defendants continued to correspond with each other. If Fuentes had no knowledge of Reyes’s intent to kill Francisco, then, based on the gang expert’s testimony, he would no longer communicate with Reyes, who would have disrespected him.
Fuentes errs by concluding that the only evidence that he aided and abetted the shooting was the gang expert’s claim that because he was a gang member he would have known about Reyes’s feud with Ector and that he would have been “‘on the same page’” as Reyes during the shooting. As outlined above, the gang expert testimony, in conjunction with the other evidence presented at trial, supported the jury’s finding.
Fuentes makes note that this was a spur-of-the-moment decision to murder Francisco and not a planned activity. We don’t believe that this would be fatal to the jury’s finding. Even if Reyes did decide to gun down Francisco only after he drove by and saw him, the jury could reasonably infer at that point that Fuentes was well aware of Reyes’s intentions. As previously noted, there was a loaded firearm in the car. Based on the gang expert’s opinion, a gang member would not commit a crime without the other gang member’s knowledge. The jury could reasonably infer that Fuentes knew that Reyes was going to shoot Francisco.
A reasonable inference can be made from these circumstances that Fuentes knew Reyes intended to shoot Francisco, and Fuentes assisted him in doing so.
C. Sufficiency of Evidence of Gang Enhancements
Both defendants contend the evidence was insufficient to support the jury’s true findings on the gang enhancement (§ 186.22, subd. (b)) for the murder of Francisco. Reyes additionally argues the evidence was insufficient on count 3, the attempted murder of Ector.
A gang enhancement does not apply unless the crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1)). A gang enhancement under this section requires proof that (1) the defendant committed a felony; (2) the felony was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (3) the felony was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Ibid.; see In re Ramon T. (1997) 57 Cal.App.4th 201, 207 & fn. 3.)
The prosecution may rely on expert testimony to establish the required elements of the gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) An expert’s testimony is also admissible concerning the existence, size, or composition of a gang; an individual’s membership in, or association with, a gang; the primary activities of a specific gang; the motivation for a particular crime; whether a crime was committed to benefit or promote a gang, and how; rivalries between gangs; gang-related tattoos; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, and cases cited therein; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) This expert testimony is permissible because these subjects are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .” (Evid. Code, § 801, subd. (a); see People v. Gardeley (1996) 14 Cal.4th 605, 617.)
Defendants essentially claim that Francisco was shot not as a gang-related shooting, but rather based on a personal vendetta between Reyes and Francisco. We believe the jury could reasonably infer that the shooting was gang related.
Here, there was no dispute that defendants were members of the same gang. They committed the shooting together. Moreover, as set forth, ante, we believe there was sufficient evidence presented that Fuentes intended to aid and abet the shooting.
It was fairly inferable that defendants committed the instant shooting for the benefit of the WSV gang. As stated by the gang expert, not only did it increase the reputation of the gang itself by increasing fear in the community and establishing its territory, it also increased both defendants’ status in the gang. Also, we believe that it was a reasonable inference that the shooting was related to the prior shooting of Lopez and Ector, which, as we will address further, post, was clearly gang related.
We also note that Detective Granado testified that he reviewed letters written between Reyes and Fuentes. He indicated that they showed they were working together. This evidence also supports the jury’s finding that the shooting was gang related. We find the evidence supported the true finding on the gang enhancement for count 1.
Reyes contends the shooting of Ector was not committed to benefit the gang. Reyes concedes that the shooting of Lopez was gang related. We think it defies logic that the shooting of Ector, which occurred only minutes later, was not also committed to benefit the gang. Someone in the group with Reyes yelled out “West side mother-fucker” just prior to Reyes shooting Lopez. Ector then confronted Reyes. Detective Granado indicated that this form of disrespect of a fellow gang member by Ector would have to be dealt with by the gang member. We believe that substantial evidence supported that the shooting of Ector was not a solitary act committed by Reyes, but rather it was committed to benefit the gang and benefiting him as a gang member by protecting his honor.
We find sufficient evidence for a jury to reasonably find true the gang enhancement allegations under section 186.22, subdivision (b) for counts 1 and 3.
V
GANG TESTIMONY ON MENTAL STATE
Fuentes claims that the gang expert improperly testified as to Fuentes’s mental state at the time of the crimes.
A. Additional Factual and Procedural Background
Prior to trial, defendants brought a motion to bifurcate trial on the gang allegations. The prosecution argued the evidence was relevant to show motive and identity and to show that Fuentes aided and abetted the shooting of Francisco. Defendants contended that the gang evidence was highly prejudicial. The trial court concluded, relying on Evidence Code section 352, that the gang evidence was admissible, and it denied the motion.
As outlined extensively, ante, Detective Granado testified about the WSV gang and that the crimes were committed to benefit the gang. Detective Granado was also given a hypothetical matching the facts of the shooting of Ector and Lopez and the subsequent shooting of Francisco. Detective Granado surmised that, as to the shooter, the crimes were gang related. He was also asked the significance of a passenger accompanying a driver to an area where one year prior the driver had shot someone. Defense counsel objected on the ground that the question was vague. The trial court overruled the objection, stating that the question was based on the hypothetical. Detective Granado then testified that a gang member who accompanies a fellow gang member would know about the prior shooting and would be “on board” with the shooter. Detective Granado was then asked whether it was his opinion that Fuentes was an active WSV gang member. He responded, “My opinion is that he’s an active member of West Side Verdugo gang. He was on the same page with Mr. Reyes when this crime was committed.” There was no further objection.
B. Analysis
Initially, we find that Fuentes has waived his claim that the testimony that he was “on the same page” with Reyes at the time of the shooting was improper gang expert testimony. Fuentes claims that any objection would have been futile, since the trial court had denied his request to bifurcate the gang allegation from the substantive offense on the ground that it was necessary to admit the gang expert testimony to prove that Fuentes aided and abetted the shooting of Francisco. We believe that a specific objection was necessary.
The admission of gang-expert opinion testimony regarding Fuentes’s gang membership, the culture of the gang, and whether and how a crime was committed to benefit or promote a gang was proper testimony and could be utilized to infer the intent that Fuentes possessed at the time of the shooting. (People v. Gardeley, supra, 14 Cal.4th at p. 617.) In fact, numerous cases have held that evidence of gang membership is admissible to show intent and motive. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 194; People v. Sandoval (1992) 4 Cal.4th 155, 175.) The testimony that Fuentes was in fact “on board” with Reyes at the time of the crime, however, was an improper opinion. An expert cannot opine on whether an “a specific individual had specific knowledge or possessed a specific intent.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 658.)
Fuentes should have objected to this improper opinion despite the trial court’s earlier ruling. The trial court certainly could presume that the evidence admitted at trial would be the kind approved of in Gardeley. It should have been alerted by Fuentes that the complained-of testimony was improper.
Defendant’s counsel contended at oral argument that this court had misrepresented the record by finding that he had waived the instant issue. However, as noted in his own opening brief, defendant only made an objection to the testimony on vagueness grounds, not that this testimony constituted improper gang expert testimony, the issue he now raises on appeal. It is a well-settled rule of appellate procedure that in order to raise an issue on appeal, the defendant must object in the trial court on the same grounds raised on appeal. (People v. Cook (2006) 39 Cal.4th 566, 607; Evid. Code, § 353.) There was no objection made in the lower court that the gang expert had provided improper testimony, and therefore, the issue has been waived.
Even if we were to review Fuentes’s claim, we would find any conceivable error in admitting the statement by Detective Granado was harmless. Although this response was plainly improper, as discussed, ante, there was ample admissible evidence to support the true finding on the gang enhancement and that Fuentes aided and abetted the shooting of Francisco. This isolated improper testimony was not so prejudicial that it is reasonably probable Fuentes would have received a more favorable result had these questions not been asked. (See People v. Avitia (2005) 127 Cal.App.4th 185, 194; People v. Watson (1956) 46 Cal.2d 818, 836.) Even if Detective Granado’s response had been entirely excluded, there was more than sufficient other evidence from which the jury could reasonably conclude that Fuentes aided and abetted the shooting of Francisco and that the crime was committed for the benefit of the WSV gang. We reject Fuentes’s claim to the contrary.
VI
INSUFFICIENT EVIDENCE OF PREMEDITATION AND DELIBERATION FOR THE ATTEMPTED MURDER OF ECTOR
Reyes contends that the trial court had a sua sponte duty to instruct the jury to view with caution his out-of-court oral statement, “All right,” which was uttered just before he shot Ector. He contends its failure to do so requires that the premeditation and deliberation finding on count 3 be reversed.
A trial court has a sua sponte duty to instruct the jury with the appropriate cautionary instruction when there is evidence that a defendant made a preoffense oral admission. (People v. Williams (1988) 45 Cal.3d 1268, 1315; People v. Beagle (1972) 6 Cal.3d 441, 455.) CALJIC No. 2.71.7 provides, “Evidence has been received from which you may find that an oral statement of [intent] [plan] [motive] [design] was made by the defendant before the offense with which [he] [she] is charged was committed. [¶] It is for you to decide whether the statement was made by [a] [the] defendant. [¶] Evidence of an oral statement ought to be viewed with caution.”
Currently, that would be Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 350. We discuss its old counterpart, CALJIC No. 2.71.7, however, because the parties stipulated that CALJIC would be used in this case. CALCRIM No. 358 is not significantly different from CALJIC No. 2.71.7.
Cautionary instructions such as CALJIC No. 2.71.7 are designed to help the jury determine whether the defendant actually made the statements attributed to him. (People v. Carpenter (1997) 15 Cal.4th 312, 393.) The purpose of such an instruction is to assist the jury in determining whether the statement was in fact made or was fabricated and whether it was inaccurately reported. (Ibid.)
Ector stated that he confronted Reyes as to why he was shooting at Lopez. Ector told Reyes that if he was going to shoot at his friend, he had might as well shoot at him. Reyes responded, “All right” and then shot him in the face. We believe, and the People agree, that Reyes’s statement could be viewed as an oral admission, and the jury should have been instructed to view the statement with caution. The People nonetheless argue that any error in failing to give the instruction was harmless. We agree.
An error in failing to give such an instruction is harmless if no reasonable probability exists that the defendant would have obtained a more favorable verdict had the instruction been given. (People v. Carpenter, supra, 15 Cal.4th at p. 393; People v. Watson, supra,46 Cal.2d at p. 836.) In assessing the effect of a failure to instruct, we review the record for any evidence that the statement was not made, was fabricated, or was inaccurately remembered or reported. (Carpenter, at p. 393.) We have reviewed the record and have determined that there was no dispute as to the statement uttered, and no evidence was presented that the statement was not made by Reyes.
In any event, despite Reyes’s claim that there was no other evidence showing premeditation and deliberation, we believe there was other overwhelming independent evidence of Reyes’s guilt on the charge. Reyes had been shooting at Lopez (an unarmed, innocent bystander) when Ector confronted him. Reyes had clearly armed himself that night to engage in some sort of confrontation. Ector told Reyes that he should go ahead and shoot him if he was going to shoot at his friend Lopez. Reyes then shot Ector. Furthermore, the prosecution did not mention the statement in closing argument. Rather, the prosecution relied upon the fact that Reyes had armed himself that night and shot at Ector after he was challenged by him to support the premeditation and deliberation finding.
The shooting of Ector clearly was premeditated and deliberate. Hence, any failure to instruct the jury that it should view Reyes’s statement with caution was harmless.
VII
PROSECUTORIAL MISCONDUCT
Both defendants contend that the prosecutor committed prejudicial misconduct during closing argument.
A. Additional Factual Background
During closing argument, the prosecutor stated, “These type of killings are happening every day in our streets. You hear about them, you read about them, and now you have firsthand knowledge.” There was no objection by counsel. After further argument by the prosecutor, the trial court stated, “I want to acknowledge to the jurors, the prosecutor’s comments about the killings that happen every day in your streets, you hear about them and now have firsthand knowledge, I want to caution you and ask you to disregard that comment. The decision making in this case is to be made on the facts, the evidence in this case without reference to anything that may have occurred or not have occurred in any other case.”
Although defendants did not object to the statement made by the prosecution, which would normally bar consideration of the claim on appeal (People v. Sapp (2003) 31 Cal.4th 240, 279), since the trial court admonished the jury on its own volition, we will review the claim.
Later, the prosecutor argued, “Imagine Ms. Medina, if she still lives in that neighborhood, what is it like for her having to come to court and testify and then wonder is tonight going to be the night? Is tomorrow morning going to be the morning? Is tomorrow afternoon going to be the afternoon that somebody from West Side Verdugo comes back? I don’t know if she still lives there. [¶] Can Megan? Can Ector? The only time witnesses can actually return to their neighborhoods is when jurors care and be fair to the defendants with these types of facts and this type of evidence and find them guilty.”
Counsel for Reyes made an objection to the argument. The trial court believed that the argument was improper and advised the jurors, “The Court will admonish the jurors to disregard that aspect of the argument. To consider the evidence in this case alone, not to be considered about the consequences to anyone on either side of this case in determining your deliberations and your verdicts. That means to be fair to both sides and to not be concerned about the consequences. I’ll give you further instructions in a little while on that.”
B. Analysis
A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
The People concede that the prosecutor’s arguments were objectionable. We will therefore proceed to determine whether the admonitions cured any potential prejudice and, if not, whether the prosecutor’s comments rendered the trial unfair.
“[W]e may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) On both occasions here, the trial court promptly admonished the jurors to disregard the prosecutor’s comments. We believe such admonitions were adequate to dispel any possible prejudice. The prosecution had argued that gang killings were happening in the streets on a daily basis. The trial court promptly, on its own volition, advised the jurors to only consider the evidence before them. The trial court instructed the jury with CALJIC No. 1.02, that statements made by attorneys during the trial are not evidence. We must presume that the jurors followed the instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.)
Furthermore, when the prosecutor argued that the witnesses in this case lived in fear for their lives, the trial court immediately admonished them not consider that argument. The jury was also instructed not to let sympathy influence their decision. (CALJIC No. 50.) There is no reason to believe the admonitions were not adequate to cure any prejudice.
We also conclude that these comments did not so infect the trial as to make it fundamentally unfair. (People v. Morales, supra, 25 Cal.4th at p. 44.) The evidence of defendants’ guilt was overwhelming. All three of the instant shootings were brazenly committed and involved unarmed victims. We disagree with defendants that the arguments by the prosecution would be interpreted by the jurors as an appeal for them to avenge gang killings in general, especially in light of the admonitions given by the trial court. These brief comments by the prosecutor in face of the egregious nature of the shootings did not render the defendants’ trial unfair.
Ultimately, none of the purported misconduct by the prosecutor was such that there was a reasonable likelihood the defendants would have achieved a more favorable outcome. Therefore, any error was harmless.
VIII
FAILURE TO INSTRUCT JURY TO BEGIN DELIBERATIONS ANEW
Both defendants contend that the trial court erroneously failed to instruct the jury to begin deliberations anew when a juror was replaced by an alternate.
A. Additional Factual Background
On February 16, 2006, after giving the final instructions, the trial court advised the jurors, “What I suggest is that you go to the jury room at this point, decide what time you wish to commence deliberations tomorrow morning. I would give you a little bit of latitude in that regard. You can do that without my involvement. Let the bailiff know when you are all here and he will escort you to the jury room in the morning. But what time you come in is up to you. [¶] Okay. We’ll see you tomorrow morning at whatever time you designate.” The jurors then exited the courtroom. According to the clerk’s transcript, the bailiff was sworn to take the jurors at 4:42 p.m. At 5:03 p.m., the jurors sent out a written question that one of the jurors needed to be excused because of a work commitment beginning on February 21, 2006. At 5:06 p.m., the parties apparently stipulated that the juror could be replaced by an alternate juror.
The jury had evidently been excused for the night because the seated juror was not replaced with the alternate until the next session, which began on February 21, 2006, at 10:00 a.m. After making the substitution, the trial court stated, “And we’ll allow the jurors to continue with their deliberations at this point.” At 10:21 a.m., the jury sent out a request for one of the juror’s notebooks (not the newly impaneled juror’s). The jury deliberated the entire day and was excused at 5:10 p.m.
The jury began deliberations again on February 22, 2006, at 10:00 a.m. At 4:21 p.m. that day, the jury reached a verdict as to both defendants. Except for the weapons use allegation found true against Fuentes, all of the verdict forms were signed on February 21, 2006.
B. Analysis
Section 1089 authorizes substitution of an alternate juror before or after final submission of the case to the jury on a showing of good cause. Post submission substitution does not violate a defendant’s right to a trial by jury and its essential element of a unanimous verdict provided the trial court instructs the jury to commence deliberations anew. (People v. Collins (1976) 17 Cal.3d 687, 691-694.) CALJIC No. 17.51, the standard instruction given in such cases, provides, “Members of the Jury: [¶] A juror has been replaced by an alternate juror. You must not consider this fact for any purpose. [¶] The People and [the] defendant[s] have the right to a verdict reached only after full participation of the twelve jurors who return the verdict. [¶] This right may be assured only if you begin your deliberations again from the beginning. [¶] You must therefore set aside and disregard all past deliberations and begin deliberating anew. This means that each remaining original juror must set aside and disregard the earlier deliberations as if they had not taken place. [¶] You shall now retire to begin anew your deliberations in accordance with all the instructions previously given.”
The instruction was not given here. However, we believe that such an instruction was unnecessary because the record supports that the jurors had not begun their deliberations prior to the replacement of a seated juror with an alternate juror. The trial court advised the jurors that they were to retire to the jury deliberation room and suggested that they determine at what time they wanted to commence deliberations the following day. The jurors then sent out a note to the trial court that one of the jurors had a work commitment on February 21, 2006. There is no indication that a juror foreperson had been chosen or that any type of deliberations had commenced. There is further evidence that deliberations had not begun, as one of the jurors did not request his or her notebook until after the alternate juror was impaneled. Moreover, the jury question that came out to the trial court prior to the substitution involved only the scheduling issue and nothing substantive.
We think the record supports that the jury did not begin discussing the case until the morning of February 21, 2006, after the alternate had replaced the seated juror. As such, the trial court had no sua sponte duty to instruct the jury to begin their deliberations anew. The fact that the trial court advised the jurors when the alternate was seated to “continue with their deliberations,” is of no moment. We believe the record supports that they had not begun their deliberations.
Even if we were to find that the jury had begun its deliberations, we would find the trial court’s failure to instruct the jury was not prejudicial. (People v. Collins, supra, 17 Cal.3d at p. 697.) We review prejudice in this case under the standard enunciated in People v. Watson, supra, 46 Cal.2d 818, it is not reasonably probable the outcome of the trial would have been different had the jury been instructed to disregard any deliberations that had occurred prior to the alternate being seated. (See People v. Proctor (1992) 4 Cal.4th 499, 537-538.)
We reject defendant Fuentes’s contention (presumably joined by defendant Reyes) that the trial court’s failure to instruct the jury with CALJIC No. 17.51 deprived him of his rights to due process, and therefore the standard in Chapman v. California (1966) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] applies. In Hicks v. Okalahoma (1980) 447 U.S. 343 [100 S.Ct. 2227, 65 L.Ed.2d 175], the United States Supreme Court explained that a state law guaranteeing a criminal defendant certain procedural rights at a sentencing hearing, even if not constitutionally required, may give rise to a liberty interest protected against arbitrary deprivation by the due process clause. (Id. at p. 346.) Defendant does not explain how the replacement of a juror with an alternate juror without instruction to begin deliberations anew is the equivalent of a guarantee of a procedural right based in state law. (See People v. Weaver (2001) 26 Cal.4th 876, 986-987 [rejecting a claim based on Hicks due to the defendant’s failure to present legal argument].) A contrary holding would convert all incorrect rulings by trial courts into constitutional error. We thus reject defendants’ reading of Hicks. Furthermore, since the instruction was unnecessary here, there was no deprivation of their rights. The jury deliberated for two days after the alternate juror was put on the jury. There is no indication that the jury was other than unanimous.
Fuentes relies on People v. Martinez (1984) 159 Cal.App.3d 661 to support his claim of prejudice. In Martinez, a juror was substituted after over two hours of deliberation. (Id. at p. 666.) The trial court admonished the jury, stating, “‘Now that there is a new member of the jury, the jury will resume their deliberations starting over with the new trial juror.’” (Id. at p. 664.) Six days of deliberation followed before the jury convicted the defendant of murder. (Id. at p. 666.) The court in Martinez found the jury had not been properly admonished and found prejudice, finding the issues before the jury of premeditation and malice were very complex and the case “close.” (Id. at p. 665.)
We find this case more akin to People v. Proctor, supra, 4 Cal.4th 499. In Proctor, the jury retired to deliberate and, after less than one hour, recessed for the day. The following morning, before further deliberation, a juror was replaced by an alternate juror due to illness. The trial court advised the jury to resume deliberations, stating it “‘would be helpful and in connection with commencing your deliberations again, that you kind of start, start from scratch, so to speak, so that [the alternate] has the benefit of your thinking as well as give him an opportunity for his input also.’” (Id. at p. 536.) A verdict was returned two days later. (Ibid.) The court found a lack of prejudicial error, citing the strong evidence against the defendant, and the short amount of time the jury deliberated before the substitution. (Id. at pp. 537-538.)
Here, unlike Proctor, no attempt at instruction occurred. However, like Proctor, the jury here recessed for the day after less than an hour — only 20 minutes. As noted, it does not appear that the jurors had begun discussing the case as the trial court suggested to them that they establish when they would commence deliberations the next day and then to go home. The following day, a number of questions were raised and requests made by the jury. Although the verdicts were signed on the same day that the alternate juror was impaneled, February 21, 2006, the jurors were still receiving read back of testimony at 2:21 p.m. and did not declare an impasse on the weapons use allegation until 3:46 p.m. the following day. Even though the jurors apparently had reached partial verdicts, they were in fact still deliberating. We cannot say they only discussed the weapons use enhancement the remaining time. Certainly, the jury could have revisited their verdicts at any time during these two days of deliberations.
Finally, we do not believe this was a complex case, and the evidence of guilt was overwhelming. Like Proctor, this was an “extremely strong” case for the prosecution. (People v. Proctor, supra, 4 Cal.4th at p. 537.) As set forth extensively above, we find that the evidence that Fuentes aided and abetted the murder of Francisco was overwhelming and that the crime was committed in furtherance of the gang. We believe the evidence that Reyes committed the shootings of Francisco, Lopez, and Ector was overwhelming and were also gang-motivated crimes. As such, any conceivable error in failing to instruct the jury to begin deliberations anew was harmless.
IX
REYES’S INJURIES DURING TRIAL
Reyes contends that the trial court should have declared a mistrial based on injuries he received during trial from an altercation in jail.
A. Additional Procedural and Factual Background
On November 8, 2005, a mistrial was declared in the middle of trial because Reyes apparently had been severely beaten, which resulted in his having a black eye and a broken ankle.
On February 6, 2006, during the second trial and after a significant amount of the People’s testimony had been presented, Reyes again sustained injuries while in custody. The trial court noted that medical authorities in the jail were asking that Reyes be allowed two days of recovery time. All the parties agreed that court proceedings could not continue that day. Although Reyes had been released from the hospital, he had staples in his head and had other abrasions.
The court granted the two-day extension but denied the motion for mistrial by Reyes’s counsel at that point. The trial court agreed to revisit the issue when they reconvened in two days. When court reconvened two days later, proceedings began immediately after the jurors were admonished by the trial court as follows: “On Monday I continued the matter indicating an injury occurred. I will caution everyone not to apply sympathy nor [sic] prejudice against or for any party in this matter as a result of what the Court indicated to you was injuries that had been sustained in this matter. It should be a non issue. You are not to allow that fact or factor to influence your consideration or verdict or deliberations in any fashion.”
During a break in the proceedings, the trial court noted that it had been advised that Reyes would have actually been ready for court one day earlier. Counsel for Reyes asked that he be given one more day until he had to conduct cross-examination of the next witness, Ector, in order to get his client’s help. He claimed Reyes was not getting any pain medication, and he was groggy and in pain. Ector was one of the main witnesses against Reyes. The prosecution objected because the witnesses were ready to proceed. Further, it appeared that Reyes was alert.
The trial court noted that it had observed Reyes, and he had appeared to be interacting with counsel. The trial court then described one of Reyes’s injuries as an area of his scalp that had a three and one-half inch cut with 17 staples. The trial court believed that continuing with the trial at that time was advisable. Defense counsel again noted the extent of the injuries.
The trial court noted that it was 12 to 15 feet from Reyes and could not see any injuries on the right side of his face or on his right side. He could see a scrape on his left cheek area that was less than one-half inch wide and a little over one inch in length. Defense counsel for Reyes then requested that pictures be taken of his client’s injuries. Both the trial court and the prosecution agreed that photographs should be taken. The trial court noted that jurors came within about six feet of Reyes when entering the court.
Photographs were taken of Reyes, which were made part of the record on appeal. The trial court believed that the photographs should be taken from six feet to accurately reflect the vantage point of the jury.
B. Analysis
“A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged’”’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation]. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 573.)
The trial court did not abuse its discretion in denying Reyes’s mistrial motion. We have reviewed the photographs. Those photographs show that he was injured, but the injuries do not appear overly gruesome or excessive. Further, the trial court immediately admonished the jury that it should not apply “sympathy” or “prejudice” for or against any party as a result of injuries that Reyes had sustained. We must assume that the jury followed the court’s instruction unless the record shows otherwise. (People v. Burgener (2003) 29 Cal.4th 833, 874; People v. Pinholster (1992) 1 Cal.4th 865, 943.) It does not.
We further reject Reyes’s claim that the denial of the motion for a mistrial violated his rights under the Fourteenth Amendment to the federal Constitution. The cases cited by Reyes — Estelle v. Williams (1976) 425 U.S. 501, 503-505 [96 S.Ct. 1691, 48 L.Ed.2d 126] and Deck v. Missouri (2005) ___ U.S. ___, ___ [125 S.Ct. 2007, 161 L.Ed.2d 953] — are readily distinguishable. Both of those cases involved actions by the state. In Estelle, the high court concluded that requiring a defendant to wear prison clothes during trial as a constant reminder that he was in custody violated his right to a fair trial. (Estelle, at pp. 511-512.) In Deck, after the defendant was found guilty, he was visibly shackled during the sentencing proceedings. (Deck, at p. 2010.) The court concluded that requiring a defendant to wear visible shackles without justification violated due process. (Id. at p. 2015.)
Initially, in Estelle and Deck, no admonition was given to the jury. (See Estelle v. Williams, supra, 425 U.S. at pp. 502-503; Deck v. Missouri, supra, 125 S.Ct. at p. 2010) Here, the trial court gave an admonition to the jury not to surmise how Reyes received his injuries and that it could not have sympathy or adjudge prejudice for or against him due to those injuries.
Furthermore, we note that in Estelle the high court specifically noted that a prisoner who is so “contumacious” as to require leg restraints “brings his plight upon himself” and “cannot be allowed to abort a trial and frustrate the process of justice by his own acts.” (Estelle v. Williams, supra, 425 U.S. at p. 505, fn. 2.) Unlike in Estelle and Deck, here the state did not subject Reyes to the injuries he suffered. Moreover, this was the second time that Reyes had been involved in an altercation in the jail system. We reject Reyes’s proposition that it was not shown that the injuries he received were within his control. Although we may have agreed had Reyes been involved in only one beating, by being involved in a second, separate beating it is conceivable that he was to some extent responsible for his injuries. Reyes left the trial court no choice but to continue with the trial despite his injuries.
Even if we were to consider that Reyes’s federal constitutional rights were violated, any conceivable error was harmless beyond a reasonable doubt. (Estelle v. Williams, supra, 425 U.S. at p. 506; Deck v. Missouri, supra, 125 S.Ct. at pp. 2015-2016; see also Chapman v. California, supra, 386 U.S. at p. 24.) Here, the evidence was overwhelming that Reyes committed the instant shootings. Kahookele identified Reyes as being in the Thunderbird at the time of the shooting. Ector identified Reyes as the shooter. Maria Medina indicated the driver was the shooter and that the passenger leaned back during the shooting. Both defendants had gunshot residue on their hands after the shooting. A .22-caliber shell casing was found in the Thunderbird when the two were stopped; .22-caliber bullets were found in Francisco. Ector testified that Reyes shot at him and Lopez. Israel indicated that Ector told him that someone named Soldier Boy shot him. It was undisputed at trial that Reyes’s gang moniker was Soldier. There was no credible evidence presented that someone else committed these shootings. Furthermore, we have already concluded that ample evidence supported the street terrorism findings. We therefore reject Reyes’s contention that the trial court erroneously denied his motion for mistrial.
X
SENTENCING
Reyes contends that the trial court erred by sentencing him to 15 years to life for the gang enhancements found true under section 186.22, subdivision (b)(5) on counts 2 and 3. He argues that the correct sentence is not a separate life term, but rather a minimum parole eligibility of 15 years. Respondent concedes the error. We agree. “[T]he criminal street gang enhancement found at section 186.22, subdivision (b)(5), requires service of a 15-year term before parole eligibility, not a 15-year enhancement.” (People v. Ramos (2004) 121 Cal.App.4th 1194, 1209.) We will therefore modify Reyes’s sentences on counts 2 and 3.
XI
DISPOSITION
The judgment is affirmed as to defendant Fuentes.
Defendant Reyes’s sentences on the gang enhancements on counts 2 and 3 are modified to a minimum parole eligibility of 15 years rather than 15 years to life. In all other respects, the judgment as to Reyes is affirmed. The trial court is directed to amend abstract of judgment in accordance with this opinion and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
We concur: HOLLENHORST, Acting P.J., KING, J.