Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge, Super.Ct.No. RIF103852
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Jon-Pierre Ricketts.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Charles Lenard Hale, Jr.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant Derrick Anthony Scott.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
Jon-Pierre Ricketts, Charles Hale, and Derrick Scott were tried jointly before separate juries. The juries found each defendant guilty of attempted murder (count 1; Pen. Code, §§ 664, 187), assault with a semiautomatic firearm (count 2; § 245, subd. (b)), and discharge of a firearm from a motor vehicle (count 3; § 12034, subd. (c)). Ricketts was additionally charged with, and found guilty of, being a felon in possession of a firearm (count 4; § 12021, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
The juries found true allegations that race was a substantial motivating factor in committing the crimes, and that defendants committed the crimes with the intent to promote, further, or assist a criminal gang. (Former §§ 422.75, subd. (c), 186.22, subd. (b).) The juries further found true allegations that a principal personally and intentionally discharged a firearm causing great bodily injury. (§§ 12022.53, subds. (d), (e)(1), 12022.5, subd. (a).)
The Hale and Ricketts juries found that the attempted murder was deliberate, willful, and premeditated. The Scott jury found the same allegation not true.
The trial court sentenced Ricketts to a total prison term of 81 years 8 months to life; Hale was sentenced to a total prison term of 57 years to life; and Scott was sentenced to prison for a total of 39 years 8 months to life. The defendants were ordered to pay, among other fines and fees, a $20 court security fee pursuant to section 1465.8, subdivision (a)(1).
At the sentencing hearing, Hale was also resentenced for other crimes. With the additional terms, Hale’s total sentence was 76 years to life.
The defendants raise issues concerning certain evidentiary rulings, jury instructions, the sufficiency of the evidence to support their convictions and the true findings on their sentence enhancement allegations, and sentencing.
We strike the true findings that race was a substantial motivating factor with respect to count 2 and vacate the corresponding portion of the sentences, and otherwise affirm the judgment..
I. SUMMARY OF FACTS
A. Background
This case arises from a drive-by shooting on May 30, 2002, on Linden Street in Riverside. Jamil Johnson, one of the passengers in the car, testified at trial for the prosecution after entering into a plea agreement. The following background is based primarily on his testimony.
In April 2002, Johnson, Hale, and Scott became members of the 1200 Blocc Crips gang (1200 Blocc). 1200 Blocc is a predominantly Black gang and a rival of a Hispanic gang, Eastside Riva or “ESR.” The tension between the two gangs was particularly high in early 2002 when, according to Johnson, there were “a lot of shootings going on.”
Blocc is spelled with “cc” because “ck” is short for “Crip killer.”
On the afternoon of May 30, 2002, Scott was driving his car and Johnson was his passenger. They drove past a pickup truck with people inside who Johnson described as “Mexicans,” and who he assumed were members of ESR. The people in the truck stared at, or “mad-dogged,” them as they drove by; Scott and Johnson mad-dogged them back. The truck made a U-turn and pulled up behind Scott’s car. After Scott sped up to get away, he was pulled over by the police for speeding.
Scott and Johnson then picked up Hale and drove to Bordwell Park, a gathering spot for 1200 Blocc members. Ricketts, a 1200 Blocc member, was there. Ricketts had been released from prison four days earlier after serving a sentence for auto theft. His gang moniker is “Money.” Scott, Johnson, Hale, and Ricketts were together in an area of the park that had covered picnic tables. They talked and drank beer. According to Johnson, they did not discuss the incident involving the Mexicans in the truck and did not talk about going “to shoot any Mexicans.”
At the park, Ricketts showed the others a nine-millimeter semiautomatic gun in his waistband. Johnson had previously seen Scott with the same gun. When a police car drove by the park, Ricketts placed the gun on top of a covering over the picnic tables. After the police left the area, Ricketts retrieved the gun.
Scott, Ricketts, Johnson, and Hale got into Scott’s car to go to “Bobcat’s” house. Ricketts asked if he could “ride shotgun.” Johnson, who was previously in the front seat, let Ricketts get into the front passenger seat because Ricketts was “bigger and needs more room.” Scott drove, Johnson sat behind Scott, and Hale sat behind Ricketts. Along the way, Ricketts told the others: “I’m going to turn you guys into riders.” A “rider,” Johnson explained, is someone who participates in criminal activity with a gang and supports the gang “to the fullest.”
Bobcat lives on Cranford Avenue. To get to Bobcat’s house from Bordwell Park, they would “normally take University” Avenue, but would sometimes take Linden Street. On this occasion, there was no discussion about taking a particular route to get to Bobcat’s house. At trial, Johnson offered a possible explanation: University Avenue was being patrolled by the police at that time and, because Ricketts was carrying a gun, he (if he was making the decision) would use Linden Street instead of University Avenue to avoid being pulled over by the police. The part of Linden Street they would use to get to Bobcat’s house is within ESR’s territory.
On Linden Street, Gilbert Mauricio and Cecilia Govea were standing outside an apartment building. Mauricio is described by Johnson as “a Mexican dude,” and Govea as a “Mexican.” Scott drove slowly past them. Mauricio mad-dogged them and Johnson mad-dogged him back. Ricketts told Scott to make a U-turn and said that he was going to “have his hat.” Johnson understood this to mean that Ricketts intended to kill him. Scott made the U-turn. Ricketts pulled the gun out of his waistband. Scott stopped the car near Mauricio. Ricketts fired several shots toward Mauricio. Mauricio threw Govea to the ground and covered her with his body. One of the bullets hit S.C., a four-year-old boy, in the foot. As the car drove away, Ricketts yelled, “Money Loc, East Coast.”
According to Johnson, the shooting was not planned and it was a “big surprise” to see Ricketts pull the gun out on Linden Street and start shooting. He said that Hale also appeared surprised. When the shooting began, Johnson and Hale dove “for the floorboards in the back seat.”
After the shooting, Scott drove them to “Esco’s” house. Esco is a “shot-caller” for the Georgia Street Mob or “GSM,” and a “big-time gang member.” GSM is affiliated with, or a subset of, 1200 Blocc. At Esco’s house, Ricketts gave the gun to someone, then used bleach to wash the side of the car and his hands and arms to get rid of gunpowder residue.
After leaving Esco’s house, they drove to Bobcat’s house and then to a movie theater. They planned to “sneak” into the theater to look for movie ticket stubs they could use to build an alibi. When they were unsuccessful, they drove to Johnson’s house. Ricketts told the others, “nobody better not snitch.” When they arrived at Johnson’s house, they were arrested.
B. Police Investigation
Following the shooting, a police officer spoke with Salvador Chavez, the uncle of the boy that was shot. After Chavez testified at trial that he did not remember anything about the shooting, the officer testified that Chavez told him the following: Chavez was outside the apartment building on Linden Street when the shooting occurred; he saw a white car with four Black males stop in front of the building; the passenger windows were rolled down; two people—the person in the front passenger seat and the person in the right rear passenger seat—pulled out handguns and began firing into the apartments.
According to the officer, Chavez told him that his name was Salvador Gonzales.
Govea (the woman who was with Mauricio when the shooting occurred) told the investigating officer and testified at trial that she saw a white car drive by, then turn around. There were four Black males in the car. The car slowed down, then came to a stop. She saw the right front passenger put a gun out the window and shoot it. After Mauricio threw her to the ground, she heard more shots.
Police found 6 nine-millimeter bullet casings, three bullet fragments, and six bullet strike marks (including the shoe of the victim) at the scene. The bullets were all shot from the same gun.
Clothes worn by Ricketts and Hale were tested for gunshot residue. Scott’s and Johnson’s clothes were not tested for gunshot residue. Particles of gunshot residue were found on Ricketts’s and Hale’s clothes.
Each defendant was interviewed by the police on the night of the shooting. Hale stated that Scott and Johnson picked him up in the afternoon and drove him to a girl’s house. From there, he went to Bordwell Park, where he talked with Ricketts. While at the park, Hale saw Scott drive by and get pulled over by the police. He stayed at the park until approximately 8:00 p.m. when he, Scott, Johnson, and Ricketts tried to sneak into a movie theater. When they were unsuccessful, they drove to Johnson’s house, where they were arrested. He denied being a member of a gang, and said he was not in a car during a drive-by shooting.
Scott initially told the officers that he was at Bordwell Park with Ricketts, Hale, and Johnson, where they played basketball; later, they went to a movie. He denied any involvement in a drive-by shooting. Eventually, Scott told them that he drove the others in his car onto Linden Street. There, they saw a Mexican, who mad-dogged them. Scott then “flipped the bitch” (i.e., made a U-turn), believing they were returning to “mad-dog [the Mexican] back.” He said they did not have any particular plan. Although he was aware that there was a gun in the car, he said he did not know that Ricketts was going to start shooting. When he heard the shooting, he drove away. They then went to the movie theater, but did not go inside. Finally, they went to Johnson’s house, where they were arrested. A recording of Scott’s interview was played only to his jury.
Ricketts denied having any knowledge about a drive-by shooting earlier that day. He said that he met Scott, Johnson, and Hale at Bordwell Park, and that he told Scott to give him a ride home. On the way to his house, they were stopped by the police.
On the night of the shooting, Johnson told the officers that he had been at Bordwell Park with Ricketts, Hale, and Scott. In the evening, they went to the movie theater, but did not go inside. Then they went to his house, where they were arrested. He denied being a gang member or being involved in a shooting.
At some point, when Johnson was shown a photograph of the victim, he decided to “tell them what happened.” In August 2002, Johnson was interviewed again. This time, he described the events essentially as he did at trial (and as set out above).
C. Scott’s Jailhouse Kite
While Scott was in jail awaiting trial, he wrote a letter to Esco, who was in custody in the same facility. The letter, or “kite,” was intercepted by jail officials. This kite begins with a rant against Johnson for being a “snitch” even though “the homies swore up and down that [he] was a rider and so hardcore.” Scott then described what happened on the night of the shooting: “We were on our way to my girl[’]s house. The cops were hot as fuck that day. Money was only fresh out 4 days . . . . I told all the homies (me, JR, Jamil, Static, Money) that we needed to just post up and chill because it was too hot to do anything. I was going to my girl[’]s and I was going to drop everyone off at Big Bot Cat[’]s house because he lives next to my girl. I told ALL the homie[s] B4 they got in my car that we are not getting in my car to go ride because we[’]re 5 deep and I don’t get down like that. Plus the cops are hot. We see a Dick on the way to my Girl[’]s house and Money’s like, ‘let me have his hat.’ I[’]m like hell no nigga [sic] look at your surroundings. There[’]s cars behind us and people everywhere. I told Money not to do it and he thought I was acting like a weeney because I wanna [sic] be smart instead of a dumbass like I am now. . . . So [M]oney’s like ‘[M]ilk turned [sic] this bitch around cuz [sic] so I do it. He get’s off with people everywhere and guest [sic] what! A little Boy gets hit in the foot and he never hits the Dick.” (“Dick” is a derogatory reference to a subset of ESR known as the Tiny Dukes. “Milk” is Scott’s gang moniker.)
The kite concludes with a plea for advice from Esco: “You need to strike me back and let me know how you feel about this Esco. . . . My lawyer wants me to turn on [M]oney too. He’s telling me every court date that I need to make a choice. He said [M]oney is already washed up and there[’]s nothing [M]oney can do. He said that the [district attorney] wants to prove I had something to do with it too. My lawyer wants me to say that I didn’t know that [M]oney was going to do anything and other shit. Esco I[’]m confused and worried. [Portion redacted.] A little boy got shot man. The jury ain[’]t going for that shit. Plus Jamil [Johnson] coming to court. I done already proved to everyone that I ain[’]t no snitch Esco because I[’]m still HERE. [Portion redacted.] . . . If I would of done it or IF I was wit [sic] Riding that day, I would be a man about mines and take my beef because that’s part of the G-code. . . . Strike me back and let me know wuz [sic] up Esco cause I need to hear from you about this shit.” The kite is signed, Milk. Following the signature is a final note: “Is this situation work [sic] me loseing [sic] my life????”
D. Gang Expert Testimony
Joe Miera, a Riverside Police Department detective, testified as an expert on Riverside gangs. According to Detective Miera, 1200 Blocc is a criminal street gang. Its primary purposes include selling rock cocaine and committing violent assaults against, and the murder of, members of ESR, its main rival. Although the two gangs were once allied with each other, certain events reshaped the rivalry into one based upon racial differences. He testified that Hale, Scott, and Ricketts were members of 1200 Blocc on May 30, 2002. Detective Miera further opined that the shooting on May 30, 2002, constituted a crime that would benefit 1200 Blocc.
E. Defense
Ricketts testified that on May 30, 2002, Scott, Hale, Johnson, and a fourth person, a “youngster” he did not know, left Bordwell Park in a car without him. Johnson got into the front passenger seat. They returned to the park, without the youngster, some time later. Scott agreed to give him a ride home. When they stopped at Johnson’s house, he and the others were arrested. He denied being a member of 1200 Blocc and said he was not involved in the shooting.
Scott and Hale did not testify.
Additional facts will be discussed below where pertinent to the issues raised in this appeal.
II. ANALYSIS
A. Issues Raised by the Admission of Scott’s Kite
Ricketts objected to the admission of Scott’s kite into evidence in his case based upon hearsay and the Sixth Amendment’s confrontation clause. The court overruled the objections and allowed the kite to be admitted into evidence against all defendants. On appeal, Ricketts argues that statements in the kite are inadmissible hearsay and violate his confrontation clause rights under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Bruton v. United States (1968) 391 U.S. 123 (Bruton). We reject the arguments.
The kite was redacted to exclude references to a possible plea agreement concerning Hale and the fact that Hale had been convicted of rape.
1. Hearsay and Declaration Against Penal Interest
Under Evidence Code section 1230, “[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of civil or criminal liability, . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.” (Italics added.) “The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) The exception does not apply to “‘evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.’ [Citation.]” (Id. at p. 612.)
“‘The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 584.) The decision to admit or exclude evidence under this section is a matter committed to the trial court’s discretion, which “‘“will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citation.]” (Id. at p. 585.)
With these rules in mind, we now consider the kite. The kite was written to Esco, a senior gang member. After denouncing Johnson for being a snitch, Scott describes the crime. He appears to downplay his role in the crime: After telling Ricketts “not to do it,” he eventually “turned this bitch [i.e., the car] around” only when Ricketts told him to do so. Ricketts is portrayed as brash and reckless, willing to take the man’s “hat,” despite being told by Scott that people were “everywhere.” Scott describes himself as a thoughtful and prudent gang member: He did not want to “go ride” because he does not “get down” with so many people in the car when “the cops are hot.” The contrast between the two is highlighted when he explains: Ricketts “thought I was acting like a weeney because I wanna [sic] be smart instead of a dumbass . . . .” Ricketts is not only a “dumbass,” but “gets off with people everywhere” and is a bad shot: he hits the little boy and “never hits the Dick. What kind of shit is that.” While critical of Ricketts, Scott insists that he is not a snitch and has stayed true to the “G-code.” Nevertheless, he is “confused and worried.” He points out that his lawyer says that Ricketts “is already washed up,” and wants Scott to “turn on [Ricketts] too.” He concludes with the question, “Is this situation wor[th] me loseing [sic] my life????”
Read in its entirety, Scott appears to have written the kite for the primary purpose of requesting Esco’s guidance as to whether he should take his lawyer’s advice to “turn on” Ricketts. However, Scott is not simply looking for whatever advice Esco may give; rather, he appears to be subtly suggesting to Esco that he be allowed to accept his lawyer’s advice to “turn on” Ricketts; that is, if Ricketts is “washed up” anyway, then Scott might as well save himself—so long as he has Esco’s blessing and can avoid being labeled a snitch. With this as his apparent motivation, Scott portrays Ricketts as a loose cannon who, for the gang’s sake, would be better off in prison; and portrays himself as a “smart,” G-code abiding gang member who can continue to contribute to the gang by staying out of prison. Viewed in this light, there is reason to be skeptical of the trustworthiness of Scott’s statements about Ricketts.
Nevertheless, we do not find that the trial court abused its discretion in allowing the kite into evidence against Ricketts under Evidence Code section 1230. The court could reasonably conclude that the statements that incriminate Ricketts were made against Scott’s penal interest. Scott was the driver of the car and, despite his stated reluctance to “ride” and his initial objection to turning around, he admits to turning the car around upon Ricketts’s direction. By describing Ricketts’s actions and statements, Scott indicates that he is aware at the time he turned the car around that Ricketts intended to “have [the Dick’s] hat.” Moreover, his statement that he told Ricketts not to do it because there were cars behind them and people everywhere is evidence that Scott was aware that Ricketts intended to commit a violent crime against the “Dick”—we would not expect him to be so concerned about other cars and people if they were turning around merely to mad-dog Mauricio. Thus, the statements that incriminate Ricketts also directly inculpate Scott.
The court could also find the statements were sufficiently trustworthy. The kite was written to a senior gang member, or shot caller, about another gang member. Even if Scott is motivated by a desire to obtain Esco’s permission to turn on Ricketts, the court could reasonably find that Scott would not likely tell lies about Ricketts. Lying to a gang leader about Ricketts’s involvement in the crime would likely put Scott at serious risk of harm at the hands of others within his gang. The risk involved in speaking falsely makes it highly likely that he is telling the truth. Even if Scott described the events with a view to paint Ricketts as the aggressor and himself as a voice of reason in the car that night, the court could find that a reasonable man in Scott’s position would not have made the statements about Ricketts unless he believed them to be true. (Evid. Code, § 1230.)
Because the court could reasonably find that the statements and actions attributed to Ricketts in the kite were made against Scott’s penal interest and are sufficiently trustworthy to satisfy that requirement of Evidence Code section 1230, the court did not abuse its discretion in allowing the evidence as a declaration against penal interest.
2. Confrontation Clause
Ricketts contends, as he did below, that he was deprived of his constitutional right under the Sixth Amendment’s confrontation clause because he could not cross-examine Scott regarding statements made in the kite. The trial court rejected the argument. We review the issue de novo (see Lilly v. Virginia (1999) 527 U.S. 116, 137; People v. Johnson (2007) 150 Cal.App.4th 1467, 1478), and reject the argument.
The confrontation clause provides a criminal defendant with “the right . . . to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) In Crawford, the Supreme Court held that the confrontation clause bars the use of testimonial hearsay statements of an unavailable witness against an accused at trial if the accused has not had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at p. 68.) The parties do not dispute that the constitutional and statutory privileges against self-incrimination and against being called as a witness in this case made Scott “unavailable” to testify about the kite. (See U.S. Const., 5th Amend.; Evid. Code, §§ 240, subd. (a)(1), 930; People v. Whelchel (1967) 255 Cal.App.2d 455, 460.) Nor does anyone assert that Ricketts had a prior opportunity to cross-examine Scott about the kite. The issue, therefore, is whether Scott’s statements in the kite are “testimonial” for purposes of the confrontation clause. If they are testimonial, then the admission of the statements against Ricketts violated his right to cross-examine Scott about the statements; if they are not testimonial, then he did not have a constitutional right to cross-examine Scott. We hold that the statements are not testimonial and, therefore, Ricketts had no right to cross-examine Scott about them.
In People v. Cage (2007) 40 Cal.4th 965, the California Supreme Court set forth the following “basic principles” for determining whether hearsay statements are testimonial: (1) the statements “are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial”; (2) the statement “must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony”; (3) “the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial”; (4) “the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation”; (5) “sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses”; and (6) “statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Id. at p. 984, fns. omitted.)
Applying these standards here, the statements in Scott’s kite cannot reasonably be viewed as testimonial statements. The kite was found in the Southwest Detention Center at a time when both Scott and Esco were housed there. As set forth above, the kite appears to have been written by Scott to Esco to elicit Esco’s guidance about his case and his lawyer’s advice to turn on Ricketts. The handwritten kite lacks any indicia of the formality or solemnity characteristic of testimony; nor does it reasonably bear any similarity in purpose or form to testimony given at trial. The kite was not the result of a police interview or otherwise elicited by law enforcement. Nor is there any basis for concluding that Scott intended to have the kite fall into the hands of law enforcement or to have it used at trial. Because the statements in the kite are nontestimonial, Ricketts had no constitutional right to confront Scott about the statements.
Scott used gang-infused language that he could not reasonably have expected would be understood by fact finders in court without some interpretive assistance. For example: “Everyone thought I was a Hook and a Bitch. I ain[’]t trippin [sic] though because I know the REAL. I stayed tru [sic] to the G-code even though they wanna [sic] give me 35-L”; and “I told ALL the homie[s] B4 [sic] they got in my car that we are not getting in my car to go ride because we[’]re 5 deep and I don’t get down like that. Plus the cops are hot. We see a Dick on the way to my Girl[’]s house and Money’s like, ‘let me have his hat.’ I[’]m like hell no nigga [sic] look at your surroundings. . . . So [M]oney’s like ‘[M]ilk turned [sic] this bitch around cuz [sic] so I do it.”
Ricketts further argues that even if the kite is nontestimonial, it must still be analyzed under the “indicia of reliability” test set forth in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts). Although the Crawford decision itself left open the possibility that Roberts was still viable as to nontestimonial hearsay statements (see Crawford, supra, 541 U.S. at p. 68; United States v. Saget (2d Cir. 2004) 377 F.3d 223, 227), recent decisions have made clear that the confrontation clause does not protect a defendant from the use of such statements (see Whorton v. Bockting (2007) 549 U.S. 406 [the confrontation clause has no application to nontestimonial statements “and therefore permits their admission even if they lack indicia of reliability”]; Davis v. Washington (2006) 547 U.S. 813, 821, 823 [nontestimonial hearsay is not subject to the confrontation clause]; People v. Cage, supra, 40 Cal.4th at p. 981, fn. 10 [nontestimonial hearsay statement need not undergo a Roberts analysis before it may be admitted under the Constitution]). We therefore reject this argument.
Under Roberts, an unavailable witness’s out-of-court statement against a criminal defendant was admissible if it bore adequate “indicia of reliability.” (Roberts, supra, 448 U.S. at p. 66.) This test was met if the statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” (Ibid., fn. omitted.)
Nor does Ricketts’s reliance on Bruton aid him. In Bruton, two defendants were tried together. The confession of one defendant was admitted into evidence even though it was inadmissible against the codefendant. (Bruton, supra, 391 U.S. at p. 128 & fn. 3.) The trial court instructed the jury that the confession was inadmissible hearsay against the codefendant and had to be disregarded in determining his guilt or innocence. (Id. at p. 123.) The Court of Appeal affirmed the conviction of the codefendant on the ground that the trial court’s limiting instruction was presumably followed by the jury. (Evans v. United States (8th Cir. 1967) 375 F.2d 355, 361-362, revd. sub nom. Bruton, supra, 391 U.S. 123.) The United States Supreme Court reversed, stating: “Despite the concededly clear instructions to the jury to disregard [the confessor’s] inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination.” (Bruton, supra, at p. 137.)
“Bruton does not stand for the proposition that all statements of one defendant that implicate another may not be introduced against all defendants in a joint trial.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 332.) Indeed, “if the statement is admissible against the codefendant under a hearsay exception, and its admission otherwise survives confrontation analysis, then the jury may consider it against the codefendant; no reason exists for severance or redaction.” (People v. Smith (2005) 135 Cal.App.4th 914, 922; see also People v. Cervantes (2004) 118 Cal.App.4th 162, 176-177.) This is the situation in this case; the statements in the kite are admissible as a declaration against the declarant’s penal interest and, because the statements are nontestimonial, the confrontation clause is not implicated. Therefore, Bruton does not apply.
The People contend that the Bruton rule is inapplicable because the kite statements are nontestimonial. That is, according to the People, for purposes of the Bruton rule, the inadmissibility of the statements under state law is irrelevant; the Bruton rule is concerned with the confrontation clause, and if the statements are nontestimonial, then neither the confrontation clause nor Bruton is implicated. We need not reach this issue because we hold that the court did not err in finding the statements were admissible under a hearsay exception.
B. Admission of Other Drive-by Shootings
Johnson testified before Scott’s jury that he and Scott were involved in two drive-by shooting incidents that took place prior to the incident that gave rise to this case. On both occasions, Scott was the driver of the car and Johnson was the shooter; each time, Johnson shot at a house where he believed ESR members lived. Scott contends: (1) that the manner by which the court allowed this testimony to be introduced violated his right to due process; (2) the evidence was inadmissible under Evidence Code sections 1101 and 352; and (3) the admission of the evidence violated his right to due process under McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378. We address each argument in turn.
1. The Manner By Which the Court Allowed the Testimony
During trial, Ricketts’s attorney sought to cross-examine Johnson regarding two prior drive-by shootings in which Johnson was allegedly involved. According to the prosecutor, no one ever positively identified Johnson with respect to the shootings. The court ruled that Ricketts’s counsel could question Johnson about the prior incidents in front of Ricketts’s jury only. With respect to the other defendants, the court ruled that the evidence was inadmissible under Evidence Code section 352 because “the probative value is attenuated by the fact that nobody identifies these people in the car at the time of the shooting.”
Johnson then testified before the Ricketts jury that he was involved in two drive-by shootings directed at a house where “Mexicans” lived. He was the shooter and Scott was the driver. The incidents occurred about five months prior to the shooting that is the subject of this case. Johnson said that Scott knew of the plan to shoot at the house and stopped the car in front of the house so that Johnson could shoot. Scott’s attorney was in the courtroom for “a small portion of the testimony.”
Following Johnson’s testimony, the prosecutor told the court that Johnson’s admissions before the Ricketts jury regarding the two prior shootings provided him with the “solid” foundation to show Scott’s involvement in the prior shootings that had been previously missing. The prosecutor sought to introduce Johnson’s testimony before Scott’s jury under Evidence Code section 1101, subdivision (b), and as evidence of gang membership and affiliation. Scott’s attorney objected under Evidence Code section 352. The court asked Scott’s counsel if he needed time to analyze any issues regarding the new evidence. Scott’s counsel replied: “I’d like to . . . have an opportunity to get the reporter’s transcript from this testimony this morning and take a look at what was said because I don’t think I heard all of it. I know I didn’t. And then perhaps voice any objections I may have based upon that. In all honesty, I sincerely doubt that I have any grounds other than [Evidence Code section] 352 issues at this point.” The court then ordered the transcript prepared for each attorney. Scott’s attorney did not request an opportunity to examine Johnson outside of the presence of the jury.
When the matter was raised again, the court ruled that Johnson’s testimony regarding the prior drive-by shootings could not be admitted against Hale under Evidence Code section 352. The court asked Scott’s counsel if he had anything further, to which Scott’s counsel suggested that Johnson be provided with counsel before speaking further about his involvement in the prior shootings. He asserted no objection. Before Scott’s jury, Johnson then testified to the two prior shootings, stating that he was the shooter and Scott was the driver.
Relative to the manner in which the evidence was allowed, Scott contends: (1) he was deprived of his right to counsel; (2) he was deprived of the opportunity to cross-examine Johnson prior to ruling on the admissibility of the evidence; (3) he was not given an opportunity to investigate the prior crime and present evidence prior to the court’s ruling on admissibility; and (4) he was not given time to make further objections. We reject these arguments.
The alleged deprivation of the right to counsel is the failure of Scott’s counsel to be present when Johnson testified before the Ricketts jury. The argument is without merit. At the point in the proceeding when the evidence of Johnson’s or Scott’s involvement in prior shootings was dubious, the court ruled that such evidence could not come in against Scott. Johnson then testified before the Ricketts jury. It is only then that the court and the prosecutor became aware of Johnson’s testimony that he and Scott were involved in the two prior drive-by shootings. There is nothing in the record to indicate that Scott’s counsel was not permitted to be present during the testimony; indeed, he came into the courtroom during the examination of Johnson by Ricketts’s counsel. There is no reason to believe that he could not have been present for the entire examination if he desired. Thus, to the extent that Scott had a right to have counsel present during that time, there is nothing to indicate that he was deprived of that right. Moreover, Scott’s attorney did not assert any error or violation of any right relative to his absence from the first part of the examination. Thus, even if the alleged deprivation of the right to counsel occurred, any claim of error on appeal on this point was forfeited.
Second, Scott contends that he was not given an opportunity to cross-examine Johnson prior to the court’s ruling. To the extent that Scott is arguing that he had a right to cross-examine Johnson when Johnson testified before the Ricketts jury, Scott offers no authority for such an argument. To the extent that he is arguing that he was deprived of an opportunity to question Johnson out of the presence of all juries, it does not appear from the record that Scott ever requested such an opportunity. The argument is thus forfeited.
The third argument—that he was not given an opportunity to investigate the prior crime and present evidence prior to the court’s ruling on admissibility—is also forfeited for failure to assert below.
Finally, Scott complains that he was not given time to make further objections. The record does not support the contention. When the new evidence came to light, the court asked Scott’s counsel if he needed time to analyze any issues regarding the new evidence. Scott’s counsel said only that he would like an opportunity to get a transcript of the testimony. Although the record is not perfectly clear, it appears that the transcript was ordered, and there is nothing to indicate that Scott’s counsel did not receive a copy.
2. Admissibility Under Evidence Code Sections 352 and 1101, Subdivision (b)
Scott asserts that the court erred in allowing the evidence under Evidence Code section 1101, subdivision (b). He did not assert this argument below. Indeed, when the prosecutor informed Scott’s counsel and the court that he wanted to introduce evidence of the prior drive-by shootings before Scott’s jury, Scott’s attorney responded, “I’m assuming [Evidence Code section] 1101[, subdivision] (b) is the grounds.” He then objected “under [Evidence Code section] 352 grounds” only. He therefore forfeited any argument based upon Evidence Code section 1101, subdivision (b). (Evid. Code, § 353; People v. Clark (1992) 3 Cal.4th 41, 125-126.)
Evidence Code section 1101, subdivision (b), provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
Scott further contends that the court erred in allowing the evidence in over his objection based on Evidence Code section 352. Under Evidence Code section 352, the trial court has discretion to exclude evidence when its probative value is substantially outweighed by the probability of undue prejudice, confusion of the issues, or of misleading the jury. “Prejudice” in this statute refers to “evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.” (People v. Carter (2005) 36 Cal.4th 1114, 1168.) We review a trial court’s ruling under Evidence Code section 352 for abuse of such discretion. (People v. Tafoya (2007) 42 Cal.4th 147, 174.)
Johnson’s testimony regarding the prior shootings was probative of, at least, Scott’s knowledge, intent, and lack of mistake. (See Evid. Code, § 1101. subd. (b).) Just prior to shooting at Mauricio, Ricketts told Scott he was going to take Mauricio’s hat and instructed Scott to turn the car around. A person who was unfamiliar with drive-by shootings might not know what Ricketts had in mind. However, a person who, like Scott, has been directly involved in two other recent shootings directed at Mexicans, was likely aware that by turning around to face Mauricio so that Ricketts could take his hat he would again be participating in a drive-by shooting. The evidence thus has some “tendency in reason to prove” Scott’s knowledge and intent with respect to his aiding and abetting liability for the attempted murder of Mauricio. Additionally, on the prior occasions, as in the present instance, Scott stopped his vehicle to facilitate the firing of the shots, thus providing further evidence as to his knowledge and intent.
Such probative value was not outweighed by any undue prejudice. The evidence of the prior incidents (shooting at a house in which no one was harmed) was not more inflammatory than the charged crime (during which a child was shot). Scott relies primarily upon the argument that because he was not charged in connection with the prior shooting, it is “very likely” that the jury would use the evidence to punish him for those events and not for the charged crime. Although there is a risk of such prejudice, we cannot find that the risk was so great as to render the court’s ruling an abuse of discretion. Furthermore, the evidence against Scott in the present proceeding was strong, thereby diminishing the likelihood that jurors convicted him based upon the prior instances.
3. Due Process
Scott further contends that the admission of evidence of the prior shootings violated his constitutional right to due process. He did not raise this argument below. Even if the argument has not been forfeited on appeal, it is without merit. “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) For the same reasons that the admission of the evidence was not unduly prejudicial and did not violate Evidence Code section 352, it did not render the trial fundamentally unfair.
C. Sufficiency of Evidence
Scott and Hale challenge the sufficiency of the evidence supporting their convictions. Neither Scott nor Hale contend that the crimes did not occur or that the evidence is insufficient to support the elements of the crimes as to Ricketts, the direct perpetrator of the crime; rather, their arguments are focused on their criminal liability as alleged aiders and abettors. We hold that the evidence is sufficient to support such liability as to both defendants.
“A person aids and abets in 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.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 560-561.) When the crime “requires a specific intent, in order to be guilty as an aider and abettor the person ‘must share the specific intent of the [direct] perpetrator,’ that is to say, the person must ‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s commission of the crime.’ [Citation.] Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.]” (People v. Lee (2003) 31 Cal.4th 613, 623-624.)
Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to sustain a conviction based on aiding and abetting. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161.) However, such evidence may be considered in determining intent along with evidence of the defendant’s companionship with the perpetrator and his conduct before and after the offense. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460; People v. Campbell (1994) 25 Cal.App.4th 402, 409; People v. Pitts (1990) 223 Cal.App.3d 606, 893.)
In determining whether a judgment is supported by sufficient evidence, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We will presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Id. at p. 577.) We do not, however, limit our review to the evidence favorable to the respondent. (Ibid.) “‘[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.”’ [Citation.]” (Ibid., quoting People v. Bassett (1968) 69 Cal.2d 122, 138.) Finally, “[e]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
1. Sufficiency of Evidence Supporting Hale’s Conviction
Following the close of the prosecution’s case, Hale moved to dismiss each of the counts under section 1118.1. The court denied the motion. On appeal, he asserts that as of the time the motion was made, the evidence was insufficient to prove the charges against him.
The People rely upon the following evidence to support aiding and abetting liability: Hale was an “active member” of 1200 Blocc and shared in that gang’s rivalry with ESR and its racial animus toward Mexicans; graffiti “tagging” showing Hale’s gang moniker next to “187” (the Penal Code section for murder) and a crossed-out “ESR” (indicating, the People assert, that Hale “personally embraced the [1200 Blocc’s] credo to kill ESR members”); Hale’s admission in his postarrest interview that he saw Scott being pulled over by the police following the chase incident earlier in the day (from which the jurors could infer that Hale would have inquired about the traffic stop, and that Scott would have told him about being chased by Mexicans, thus providing a motive for revenge); Hale was aware that Ricketts had a gun when they got into Scott’s car to leave the park; as they drove toward Linden Street, Ricketts declared he would make them “riders”; Scott drove slowly down Linden Street (according to the People, “trolling for victims”); and, following the shooting, Hale remained with the others and participated in the fabrication of an alibi. The People assert that the jury could reasonably deduce from these facts that Hale had knowledge of, and shared, Ricketts’s intent to kill. Although we find this a close case, we agree with the People.
Initially, we reject the People’s argument to the extent that it depends upon speculation concerning Hale’s knowledge and intent before leaving Bordwell Park. Even if jurors could reasonably conclude that Hale, as a 1200 Blocc gang member, had a hatred for Mexicans and a motive to retaliate for the chase incident that day, and could further find that Hale knew that Ricketts possessed a gun, there is insufficient evidence for a jury to reasonably conclude that at the time Hale got into Scott’s car to leave Bordwell Park he knew that Ricketts intended to commit murder. There is no direct or circumstantial evidence of any discussion or plan to do so prior to getting into the car. Indeed, Johnson testified that they were driving to Bobcat’s house and did not talk about going “to shoot any Mexicans.” Scott, in his jailhouse kite to Esco, stated that he was going to his girl’s house and planned to drop the others off at “Big Bot Cat[’]s house.” There is nothing in the kite to suggest that there was any plan to kill anyone or that Ricketts (if he had the intent to kill) shared his intent with the others. Indeed, according to Scott, he expressly told the others that they were “not getting in [his] car to go ride . . . .” Although the jury can reject such evidence, they cannot replace it with speculation or mere suspicion.
But at some point after the four got in Scott’s car and began driving toward Bobcat’s house, the situation changed. Prior to reaching Linden Street, Ricketts announced that he would turn the others into riders. According to gang expert Detective Miera, being a rider means that the gang member is “willing to put in work for your gang against your rival enemy.” “[P]utting in work,” he explained, means to be involved in “violent acts, . . . attacking enemies.” Johnson explained that putting in work means fighting and shooting, “doing violent stuff.” Merely selling drugs for the gang does not make someone a rider, Detective Miera testified; to be a rider, a gang member must do “some of [the] violent stuff.” When asked if doing violent acts on one or two occasions was enough to make someone a rider, Detective Miera said that it depends upon the seriousness of the crime.
Under the circumstances presented, Ricketts’s statement indicating that the others were about to become riders provides the logical link that allowed the jurors to conclude that Ricketts had an intent to kill and that his intent was made known to the others: The statement was made within hours of the chase incident, which called for retaliation; Ricketts possessed a gun and showed it to the others; and he informed the others that he would make them riders as the four gang members were driving into ESR territory. As a 1200 Blocc member, Hale was undoubtedly aware of the rivalry with ESR and that the violence between the gangs, including shootings, had recently increased. Under these circumstances, the jury could find that he knew that the violent act contemplated by Ricketts to make them riders would involve shooting a rival gang member (or, at least, a Mexican within ESR’s territory). Even if there was no discussion beforehand about going to “shoot Mexicans,” and even if Scott told the others that he was not getting in the car to ride, the situation changed when Ricketts informed the others of his plans.
For aiding and abetting liability, it is not enough that Hale knew of Ricketts’s intent; he must also share that intent. (See People v. Beeman, supra, 35 Cal.3d at p. 558 [when the offense is a specific intent crime, the aider and abettor must share the specific intent of the perpetrator].) There was circumstantial evidence from which the jury could find such shared intent. Despite the announcement that he was about to become a rider, Hale remained with Ricketts and the others as they drove toward Linden Street and into ESR territory. He did not object to Ricketts’s desire to make him a rider and did not try to stop or get out of the car. Nor was he a mere passenger: by staying in the car after it became clear that Ricketts was about to engage in some of the “violent stuff,” his presence facilitated and encouraged the crime by contributing to the show of force by 1200 Blocc members in their rival’s territory.
Hale’s conduct following the crime further suggests that he shared Ricketts’s intent. After the shooting, he did not leave his companions, but continued with them to Esco’s house. There, he stood by as Ricketts washed gunshot residue off the car, destroying evidence. He then went along with the others to the movie theater to obtain ticket stubs to support an alibi the group had agreed upon. Later, after his arrest, he told the police the bogus alibi.
Based on the foregoing, jurors could reasonably conclude that, no later than Ricketts’s announcement that he would make the others “riders,” Hale had knowledge of Ricketts’s intent to kill, and that Hale shared that intent by choosing to remain with Ricketts, thereby facilitating the crime. The evidence, and the reasonable inferences deducible from the evidence, thus provide sufficient evidence to support the convictions against Hale.
In addition to the theory of aiding and abetting, the prosecutor relied upon the theory that Hale was a second shooter. This theory was based upon the testimony of Officer Genaro Escobedo, who testified that witness Salvador Chavez told him he saw two people shooting from the car. Because we find sufficient evidence to support the conviction based upon the theory of aiding and abetting, we do not consider whether the evidence is sufficient to support this alternative theory.
2. Sufficiency of the Evidence Supporting Scott’s Conviction
The evidence supporting Scott’s convictions for aiding and abetting liability is stronger than the evidence supporting Hale’s convictions. Scott knew Ricketts possessed a gun (or so the jury could find) and was in the car when Ricketts announced he would make them riders. Scott was not a passenger; he drove the car, taking an “unusual” route to Bobcat’s house via Linden Street in ESR territory. After getting mad-dogged by Mauricio, Ricketts said he would “have his hat” and told Scott to turn around. According to Scott (in his kite), he told Ricketts “not to do it” because there were cars behind them “and people everywhere.” In the context of the ongoing violent gang rivalry, Ricketts’s earlier statement about becoming riders, and the knowledge of Ricketts’s possession of the gun, the jury could easily conclude that the “it” that Scott told Ricketts not to do was the act of shooting Mauricio. The jury could thus reasonably find that Scott was aware of Ricketts’s intent prior to making the U-turn. Nevertheless, Scott complied with Ricketts’s command and turned the car around. By making the U-turn and then slowing to a stop near Mauricio, Scott facilitated the crime and, the jurors could have found, shared Ricketts’s criminal intent. There was thus substantial evidence to support the jury’s verdicts against Scott.
3. Sufficiency of Evidence to Prove Hate Crime Enhancement
As to each of counts 1, 2, and 3, the People alleged that the alleged crime was a “hate crime” for purposes of former section 422.75, subdivision (c). At the time of the shooting in this case, this section provided a sentence enhancement for the conviction of a felony, or attempted felony, committed “because of the victim’s race, color, religion, nationality, country of origin, [or] ancestry, . . . or because he or she perceives that the victim has one or more of those characteristics, and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person . . . .” (Former § 422.75, subd. (c).) Here, the jurors found that the crimes were committed because of the victim’s race or perceived race. Defendants contend that the evidence was insufficient to support these findings.
Initially, we must identify the “victim” of the crimes as alleged in the charging information. In count 1, the People allege that defendants attempted to murder Mauricio, and that they attempted to commit such offense “because of the victim’s race . . . .” The alleged victim for purposes of the hate crime allegation in count 1 is clearly Mauricio. In count 2, the People allege that defendants “did wilfully and unlawfully commit an assault upon [S.C.] with a semiautomatic firearm.” S.C. is the four-year-old child who was hit in his foot by a bullet during the shooting. Connected with this count, the People further alleged that defendants committed “the above offense . . . because of the victim’s race . . . .” The only victim alleged in count 2 is S.C. In count 3, the People allege that defendants “did wilfully, unlawfully and maliciously discharge a firearm from a motor vehicle at another person not an occupant of a motor vehicle.” The People further allege that this crime was committed “because of the victim’s race . . . .” The victim of the crime alleged in count 3 is not specifically identified in the information, but arguably refers to Mauricio and S.C., or either of them.
We next turn to whether there is sufficient evidence to support the findings that the crimes were committed “because of the victim’s race” or other characteristics, or perceived characteristics, specified in section 422.75. The phrase, “because of,” does not describe a “but for” relationship between the commission of the crime and the protected characteristic; rather, it means “the bias motivation must have been a cause in fact of the offense, and when multiple concurrent causes exist, the bias motivation must have been a substantial factor in bringing about the offense.” (People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741; cf. In re M.S. (1995) 10 Cal.4th 698, 719.)
With respect to the crimes for which Mauricio was an alleged victim, defendants argue that Mauricio was selected as the intended victim “simply because he mad-dogged Ricketts.” We will conclude there is sufficient evidence to support the findings as to counts 1 and 3.
According to gang expert Detective Miera, a primary purpose of 1200 Blocc is to commit violent acts against ESR, 1200 Blocc’s “rival Hispanic Street gang.” Detective Miera further explained that the relationship between these two gangs has evolved into a rivalry based upon racial divisions and race-based acts of violence. Although ESR once included Blacks within its membership and was even aligned with 1200 Blocc, the relationship changed in the late 1980’s or early 1990’s when the “Mexican Mafia” ordered the exclusion of Blacks from ESR and the commission of violent acts against 1200 Blocc members. Recently, Detective Miera stated, the attacks by both gangs have been based more upon race than gang membership; that is, ESR members have attacked Black males who are not members of 1200 Blocc, and 1200 Blocc members have attacked Hispanics who are not members of ESR. Specifically, Detective Miera was familiar with incidents of gang violence during 2000-2001 that occurred “for no other reason than the color of someone’s skin.” The rivalry between the gangs has been redefined along racial lines.
As Hale and Ricketts point out, evidence of background racial animosity by itself is insufficient to support a hate crime allegation. As the court in In re Joshua H. (1993) 13 Cal.App.4th 1734, explained: “‘[T]he state cannot use evidence that the defendant has bigoted beliefs or has made bigoted statements unrelated to the particular crime. . . . The statute requires the state to show evidence of bigotry relating directly to the defendant’s intentional selection of this particular victim upon whom to commit the charged crime. The state must directly link the defendant’s bigotry to the invidiously discriminatory selection of the victim and to the commission of the underlying crime.’ [Citation.]” (Id. at p. 1753.)
The necessary link between the 1200 Blocc’s animosity toward Hispanics and the selection of the victim in this case is provided by Ricketts’s statement that he would make the defendants riders. As Detective Miera indicated, to make them riders, the contemplated violence must be directed against their rival, ESR (comprised of Hispanics), or Hispanics generally. Shooting a Black man, even one who mad-dogged them, would not serve the gang’s purpose or make the defendants riders; to be a rider-worthy act of violence, the victim would need to be a member of ESR (who would be Hispanic) or, at least, a Hispanic male within ESR territory. Because the attempted murder of Mauricio can be easily connected with the plan to make the defendants riders, the jury could reasonably conclude that Mauricio (who Johnson described as a “Mexican dude”) was selected as the victim because he mad-dogged them and because he appeared to be Mexican. Thus, even if the act of mad-dogging was a primary reason for the shooting, there is substantial evidence to support the finding that Mauricio’s race was a substantial factor in selecting him for the crimes alleged in counts 1 and 3.
Defendants further contend that there is no evidence in the record to support the finding that the crime alleged in count 2—assault against S.C.—was committed because of S.C.’s race, color, or other qualifying characteristic. The People did not respond to this argument. We agree with defendants. The only “victim” of the assault alleged in count 2 of the information is S.C. Although there is sufficient evidence to support the finding that Mauricio was targeted based upon his actual or perceived race or nationality, as set forth above, there is no evidence that suggests that S.C. was targeted at all, let alone because of any of the characteristics specified in the hate crime statute. Therefore, the finding cannot stand.
D. Instructional Issues
Defendants assert that there were instructional errors concerning aiding and abetting liability, the failure to define the words “semiautomatic” and “firearm,” and the hate crime enhancement. We address each in turn.
1. Aiding and Abetting Liability (CALJIC No. 3.01)
Scott’s jury was instructed pursuant to CALJIC No. 3.01 as follows: “A person aids and abets the commission or attempted commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime.” Scott contends that this instruction is ambiguous in two respects: (1) the instruction refers to “the unlawful purpose of the perpetrator,” but does not state that the aider and abettor must know what unlawful purpose the perpetrator has; and (2) the instruction that the defendant must have the intent or purpose of committing, encouraging, or facilitating the crime does not specify that “the crime” must be the crime that the perpetrator intends to commit. In essence, Scott asserts that the instruction permitted the jury to convict him of aiding and abetting the crime of attempted murder even if the jurors concluded that Scott (1) believed Ricketts had the unlawful purpose of doing harm to, but not killing, Mauricio, or (2) intended to aid, promote, or encourage a crime other than murder.
Scott did not object to the instruction or request any modification or clarification of CALJIC No. 3.01. As such, he has forfeited the argument on appeal. (See People v. Dennis (1998) 17 Cal.4th 468, 514.) Even if the argument had been preserved, we would reject it.
We independently review the legal correctness of jury instructions. (People v. Griffin (2004) 33 Cal.4th 536, 593.) “[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘“whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.”’ [Citations.] ‘“A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.”’ [Citations.] If the charge as a whole is ambiguous, the question is whether there is a ‘“reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.]” (Middleton v. McNeil (2004) 541 U.S. 433, 437.)
Viewing the instructions in the context of the overall charge, we do not believe that it is reasonably likely that the jury applied the instruction in the way that Scott suggests. The references in the instructions to the perpetrator’s “unlawful purpose” and to the intent to commit “the crime” would reasonably be understood by jurors to refer to the particular unlawful purposes and crimes that are alleged in the case and about which the jurors were instructed. As is relevant here, the jurors were instructed as to the charged crime of attempted murder (pursuant to CALJIC No. 8.66), including the requirement that the perpetrator harbor “express malice aforethought, namely, a specific intent to kill unlawfully another human being.” They were further instructed that this specific intent “must exist [in] a union or joint operation of act or conduct . . . .” (CALJIC No. 3.31.) They were also instructed with CALJIC No. 3.14, which provides, in part: “Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or facilitating the commission of the crime is not criminal.” Finally, the jurors were instructed (pursuant to CALJIC No. 1.01) “not [to] single out any particular sentence or any individual point or instruction and ignore the others” and to “[c]onsider the instructions as a whole and each in light of all the others.” Read together with these instructions and the body of instructions as a whole, the jurors likely understood the CALJIC No. 3.01 instruction to refer to the crime of attempted murder and to the perpetrator’s “unlawful purpose” as the specific intent to kill. Thus, while we agree that CALJIC No. 3.01 could have been clarified to avoid the ambiguities highlighted by Scott, as applied to our facts, there is no reasonable likelihood that it was misapplied by the jury in this case.
Scott argues that the following statements by the prosecutor during his rebuttal argument compound the ambiguity in the instruction: “The intent games. What [Scott’s] counsel is trying to suggest to you is that he had to specifically intend the killing of Gilbert Mauricio. Negative. Huh-uh. If he has to know that somebody wants to hurt him. He has to do something to assist that. Knowing that he’s doing something to assist him. Did he know that J[.]P[.] Ricketts wanted to hurt Gilbert Mauricio? ‘Let me have his hat.’ ‘Check your surroundings.’ ‘Hell, no,’ he continued to say. ‘So I do it.’ ‘And he gets off.’ He knew. He knew what he was doing, would help that, and he did it. The specific intent for an aider and abett[o]r is an intent to help. They don’t have to intend. They don’t have to want that person to get killed. But they have to know the person they’re helping is intending on killing ‘em [sic] and help in any way.”
Scott did not object to the prosecutor’s statements or request an admonition. He therefore forfeited any argument based upon such comments. (See People v. San Nicolas (2004) 34 Cal.4th 614, 665.) Moreover, although the prosecutor did misstate the law in this one portion of his argument, overall, both the prosecutor and defense counsel appropriately apprised the jury of the law. In closing argument, the prosecutor stated, “[a]ttempt[ed] murder requires a direct but ineffective act by the defendant to kill another. The defendant must have harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. . . . Specific intent to kill. Was there a specific intent to kill in this case? Sure.” The prosecutor then described how the defendants made the U-turn and stopped “right there in front of Gilbert Mauricio,” who “is never even given a chance that they’re going to try and smoke him. That’s something that speaks to the specific intent.” The prosecutor also referred to “a minimum of six shots [that] were fired” as further evidence “that goes to specific intent.” Turning to aiding and abetting, the prosecutor argued, “Now, in order to be an aider and abett[o]r there are three requirements. One is they must know of the purpose.” For this element, the prosecutor focused on the evidence that Ricketts said, “‘let me have his hat’”: “Once again, we’re going back over this statement because it clearly shows Derrick Scott knew what the purpose was. He knew what was about to happen. He intended to facilitate.” Scott’s counsel also made clear that the relevant unlawful purpose of the perpetrator is to kill: “In this particular instance [the prosecutor] has to show every one of these elements here. And he has to show the specific intent or purpose of committing or encouraging, facilitating the commission of the crime, to wit, what? The attempt[ed] murder.”
To the extent that the prosecutor’s comments themselves are incorrect in one portion of his argument, they contrast with the correctly stated instructions given by the court and the majority of comments made by the prosecutor in his closing argument. Furthermore, the jury was specifically told: “If anything concerning the law is said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” (CALJIC No. 1.00.) We presume that the jury followed this instruction.
Scott further contends that the jury must have been confused by the instructions and the prosecutor’s argument because they sent a request to the court asking for the jury instructions and definitions of attempted murder, voluntary manslaughter, aiding and abetting, assault, and simple assault. Contrary to Scott’s argument, we do not read into this request any confusion caused by CALJIC No. 3.01 or the prosecutor’s argument. Rather, it appears to be a simple request for jury instructions regarding the matters specified.
The court responded to the note in writing, stating: “O.K., all of your questions are answered by the jury instructions. The jury instructions will be sent back to you.” Scott contends that the court erred in giving this response without consulting with his counsel and allowing him an opportunity to propose a reply in violation of section 1138. This section provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (§ 1138.) Contrary to Scott’s assertion, the court’s minute order concerning the request states that counsel was present when the court responded to the request. Because there is nothing in the record that indicates otherwise, error has not been affirmatively shown. (See People v. Rogers (2006) 39 Cal.4th 826, 877.)
Defendant relies on Sarausad v. Porter (9th Cir. 2007) 479 F.3d 671, cert. granted March 17, 2008, ___ U.S. ___ [170 L.Ed.2d 352, 128 S.Ct. 1650] (Sarausad) for the proposition that ambiguities in CALJIC No. 3.01 relieved the People of their burden of proving beyond a reasonable doubt all elements of attempted murder. In Sarausad, the court found that a Washington state “aiding and abetting” jury instruction was impermissibly ambiguous and allowed the jury to convict defendant of murder without necessarily finding that he shared the perpetrator’s intent; the jury instruction at issue there is, for our purposes, substantially similar to CALJIC No. 3.01. We find Sarausad is distinguishable.
Initially, as the Sarausad court stated, the “limited circumstantial evidence” that supported the conclusion that the defendant knew that his compatriot intended to commit murder “was somewhat thin” and contradicted by other evidence. (Sarausad, supra, 479 F.3d at pp. 692-693.) Here, as earlier discussed, the evidence supporting Scott’s knowledge of Ricketts’s intent was more substantial.
Second, the prosecutor in Sarausad argued “clearly, emphatically, and repeatedly” for the “‘in for a dime, in for a dollar’ theory of accomplice liability.” (Sarausad, supra, 479 F.3d at pp. 689, 693.) Under this theory, “if the accomplice knew that the principal intended to commit some crime—any crime—the accomplice was liable for whatever crime the principal committed, even if the accomplice had no idea that the principal intended to commit that particular crime.” (Id. at p. 684.) Although the prosecutor in the present case misstated the law in his rebuttal argument, as discussed above, that single instance does not amount to the kind of clear, emphatic, and repetitious forceful argument that was wrongfully asserted in Sarausad.
Third, the jury in Sarausad sent three notes to the court during deliberations that “demonstrated substantial confusion about what the State was required to prove. In its first note, the jury asked for ‘clarification’ on whether ‘“intent”’ appl[ied] to (the defendant only) or to (the defendant or his accomplice)?’ In its second note, it asked, ‘Does intentional apply to only the defendant or only his accomplice?’ Finally, in its third note, it wrote, ‘We are having difficulty agreeing on the legal definition and concept of “accomplice.” Question: When a person willing[ly] participates in a group activity, is that person an accomplice to any crime committed by anyone in the group?’” (Sarausad, supra, 479 F.3d at p. 693.) By contrast, our record does not include a similar struggle by the jury for clarification. As discussed above, the jury merely requested instructions regarding various issues, which the court provided. For all these reasons, Sarausad is not persuasive authority on the issue before us.
2. Failure to Define “Semiautomatic” or “Firearm”
The defendants were each charged and found guilty of assault with a semiautomatic firearm under section 245, subdivision (b), which provides: “Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.” The statute does not include a definition of “semiautomatic firearm.” The juries were instructed on this crime in accordance with CALJIC No. 9.02.01: “Defendant is accused in Count 2 of having violated section 245, subdivision (b) of the Penal Code, a crime. [¶] Every person who commits an assault upon the person of another with . . . a semiautomatic firearm is guilty of a violation of Penal Code section 245, subdivision (b), a crime. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was assaulted; and [¶] 2. The assault was committed with a semiautomatic firearm.” None of the attorneys requested an instruction defining “semiautomatic firearm.”
On appeal, Scott argues that the court had a sua sponte duty to define “semiautomatic firearm,” and the failure to do so requires reversal.
Generally, the language of a statute defining a crime is “‘an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.’ [Citations.]” (People v. Estrada (1995) 11 Cal.4th 568, 574.) “The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well established. When a word or phrase ‘“is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.”’ [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] Thus, . . . terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.” (Id. at pp. 574-575.)
Our Supreme Court has described a “semiautomatic firearm” as a firearm that “fires once for each pull on the trigger and reloads automatically, but requires the shooter to release the trigger lever before another shot can be fired.” (In re Jorge M. (2000) 23 Cal.4th 866, 874-875, fn. 4, quoting Walter, Rifles of the World (2d ed. 1998) p. 498.) A standard dictionary definition of “semiautomatic,” with respect to a firearm, is one that “employs gas pressure or force of recoil and mechanical spring action in ejecting the empty cartridge case after the first shot and in loading the next cartridge from the magazine but that requires release and another pressure of the trigger for firing each successive shot.” (Webster’s 3d New Internat. Dict. (2002) p. 2063.) These definitions are substantially identical: they each refer to automatic reloading and the necessity to release the trigger before each shot. Because that phrase has no technical meaning peculiar to the law, the court was not required to sua sponte instruct on the definition of semiautomatic firearm.
To the extent the failure to instruct on these definitions was error, we believe them harmless. (See Neder v. United States (1999) 527 U.S. 1, 19-20 [failure to instruct on element of “materiality,” which was not contested at trial, was harmless]; People v. Flood (1998) 18 Cal.4th 470, 505 [failure to instruct on a “peripheral” issue did not contribute to the jury’s verdict].)
3. Natural and Probable Consequences Instruction
To prove aiding and abetting liability for assault with a semiautomatic firearm, the prosecution relied upon the theory of natural and probable consequences. Under this theory, a criminal defendant who aids and abets another in the commission of a crime may be liable not only for that “target” crime, but also for any other crime the perpetrator commits that is a natural and probable consequence of the target crime. (People v. Prettyman (1996) 14 Cal.4th 248, 254 (Prettyman).) In accordance with Prettyman, CALJIC No. 3.02 sets forth the steps through which the jury must proceed in order to apply the natural and probable consequences doctrine. (See People v. Richardson (2008) 43 Cal.4th 959 [approving of “CALJIC No. 3.02’s explication of the natural and probable consequences doctrine”].) This instruction provides:
“One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime[s] originally aided and abetted.
“In order to find the defendant guilty of the crime[s] of __________, [as charged in Count[s] __________,] you must be satisfied beyond a reasonable doubt that:
“1. The crime [or crimes] of __________ [was] [were] committed;
“2. That the defendant aided and abetted [that] [those] crime[s];
“3. That a co-principal in that crime committed the crime[s] of __________; and
“4. The crime[s] of __________ [was] [were] a natural and probable consequence of the commission of the crime[s] of __________.” (CALJIC No. 3.02.)
In light of the principles set forth in Prettyman, it is clear that the blank space in paragraph 1 of this instruction and the last blank space in paragraph 4 are to be filled in with the target crime, and that the blank space in paragraph 2 and the first blank space in paragraph 4 are to be filled in with the charged crime. (See, e.g., People v. Huynh (2002) 99 Cal.App.4th 662, 676; People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11, fn. 1.)
Here, the court instructed the jury with CALJIC No. 3.02, but erroneously inserted the target crime (attempted murder) in the blank space in paragraph 3. The written instruction given to the jury, with our italicization of the erroneous portion, states: “One who aids and abets another in the commission of a crime is not only guilty of that crime but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [¶] In order to find the defendant guilty of the crime of [section] 245[, subdivision] (b) . . . as charged in Counts 02, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of attempted [section] 187 . . . was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a co-principal in that crime committed the crime of Attempted [section] 187 . . . ; and [¶] 4. The crime of [section] 245[, subdivision] (b) . . . was a natural and probable consequence of the commission of the crime of attempted [section] 187 . . . .”
Scott contends that as instructed, the jury was not specifically required to find that a coprincipal committed the crime of assault with a semiautomatic firearm. That is, by finding defendant guilty under this instruction, the jury found that the targeted crime of attempted murder was committed, that defendant aided and abetted the crime of attempted murder, that a coprincipal committed attempted murder, and that assault with a semiautomatic firearm (§ 245, subd. (b)) was a natural and probable consequence of the commission of the attempted murder. Arguably, the jury was not called upon to find that a coprincipal committed the charged crime of assault with a semiautomatic firearm.
We reject this argument. We do not review jury instructions in isolation; rather, we consider the entire charge to the jury. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Williams (1997) 16 Cal.4th 635, 675; People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.) The absence of an essential element in one instruction may be cured by other instructions. (People v. Burgener (1986) 41 Cal.3d 505, 539, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753; People v. Crandell (1988) 46 Cal.3d 833, 873-874, overruled on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Here, the introductory sentence in CALJIC No. 3.02, as given to the jury, states: “One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.” (Italics added.) Under the plain language of this instruction, the target crime and the “other crime” that occurs as a natural and probable consequence of the target crime are clearly separate and distinct crimes—and that the “other crime” must be “committed by a principal.” Read together with paragraph 4 of the instruction—“The crime of [section] 245[, subdivision] (b) . . . was a natural and probable consequence of the commission of the crime of attempted [section] 187”—the “other crime” must be section 245, subdivision (b); i.e., assault with a semiautomatic firearm. Moreover, the jury was separately and specifically instructed that count 2 required the jury to find that a “person was assaulted; and [¶] . . . [t]he assault was committed with a semiautomatic firearm.”
Nevertheless, the erroneous reference to “attempted [section] 187” in paragraph 3 of the instruction creates an ambiguity or inconsistency with the other, correct instructions. In this situation, “the question is whether there is a ‘“reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.]” (Middleton v. McNeil, supra, 541 U.S. at p. 437; accord, People v. Huggins (2006) 38 Cal.4th 175, 192.)
In order for the jury to misapply the instructions in this case in the manner Scott contends, the jurors would have to believe that they were permitted to find Scott guilty of aiding and abetting a crime that no one actually committed. They would further have to conclude that the reference to “the crime” of assault with a semiautomatic firearm in paragraph 4 of the instruction refers only to that crime in the abstract, not to the actual commission of that crime; that is, Scott could be convicted of aiding and abetting an assault merely because it was natural and probable that such an assault would occur (even though it did not occur here). Such conclusions would have been patently irrational and unreasonable, and we cannot assume that the jury applied the instructions in this way. Indeed, “‘we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (People v. Richardson, supra, 43 Cal.4th at p. 1028.) Reading the instructions in the context of the overall charge, we conclude that it is unlikely that the jurors applied the instructions in a manner that violates the Constitution.
4. Use of Optional Final Paragraph of CALJIC No. 3.02
CALJIC No. 3.02 includes the following optional instruction: “You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of _________ was a natural and probable consequence of the commission of that target crime.” According to the Use Note to CALJIC No. 3.02, this “paragraph may be used if there is more than one possible target crime.” The court gave this instruction in this case (inserting section “245[, subdivision] (b)” into the blank space).
Scott argues that giving this instruction was error because the court identified only one target crime—attempted murder—and the instruction should only be given when more than one target crime is specified. Giving this instruction, he contends, is both “illogical” and “clearly erroneous because it improperly invited individual jurors to identify and select target crimes for themselves.” We disagree. Again, we do not review instructions in isolation; we consider the entire charge to the jury. Read together with the immediately preceding instructions, which specify attempted murder as the target crime, it is not likely that jurors heard the challenged instruction as an invitation to identify and select other target crimes.
5. Jury Instructions on Hate Crime Enhancements
Defendants assert that their juries were erroneously instructed as to the hate crime sentence enhancement pursuant to former section 422.75, subdivision (c). We agree, but hold that the error was harmless.
At the relevant time, section 422.75, subdivision (c) provided a sentence enhancement when a felony or attempted felony is committed “because of the victim’s race, color, religion, nationality, country of origin, [or] ancestry, . . . or because he or she perceives that the victim has one or more of those characteristics, and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person . . . .” (Former § 422.75, subd. (c).)
Each of the juries were instructed as follows: “It is also alleged in the Counts charged in the information that the defendant committed the crimes described therein because of the victim’s actual or perceived race, color, nationality, country of origin, or ancestry in violation of [P]enal [C]ode section 422.75, subdivision (c). [¶] The victim’s race does not need to be the only motive for the commission of the crime. Multiple, concurrent motives may exist. When multiple concurrent motives exist, the prohibited bias need only be a substantial factor in bringing about the crime. If you find the defendant guilty of any of the crimes charged, you must determine whether or not the victim’s actual or perceived race was a substantial factor in the commission of the offense. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it not to be true.” The instructions did not include the requirement that the defendant “voluntarily acted in concert with another person, either personally or by aiding and abetting another person.” (Former § 422.75, subd. (c).) This was error. By omitting any instruction regarding the acting “in concert” element, the prosecution was relieved of the burden of proving the element, effectively depriving the defendants of the constitutional rights to a jury trial on that element and to have each element of the enhancement allegation proven beyond a reasonable doubt.
The error is harmless if the People prove beyond a reasonable doubt that the error did not contribute to the hate crime finding in this case. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Lewis (2006) 139 Cal.App.4th 874, 884.) One way to satisfy this burden is to show from the verdicts that the jury necessarily found the missing element. (People v. Lewis, supra, at p. 884; Neder v. United States, supra, 527 U.S. at p. 26 (conc. opn. of Stevens, J.); People v. Hagen (1998) 19 Cal.4th 652, 671.)
Acting “in concert” means acting “together.” (Cf. People v. Jones (1989) 212 Cal.App.3d 966, 969 [interpreting “in concert” for purposes of section 264.1].) The phrase does not necessarily imply a prearranged plan or design. (People v. Calimee (1975) 49 Cal.App.3d 337, 341.) Moreover, as used in the statute, one may act “in concert” with another either by being the principal actor or by aiding and abetting the principal actor. (Cf. ibid.)
With respect to Ricketts, the jury found him guilty of each of the charged offenses based upon evidence that he was in the front passenger seat of Scott’s car, that they drove past Mauricio, that Ricketts told Scott to turn the car around so that he could “have his hat,” and that Scott did turn the car around and stop near Mauricio. Because Scott was driving, he and Ricketts were indisputably acting together, i.e., “in concert.” Ricketts’s defense was based upon the theory that he was not in the car at all—a theory that the jury clearly rejected. There was no evidence that Ricketts either acted alone, or that he was in the car but uninvolved in the shooting. Thus, although the jurors could have acquitted Ricketts of the charges based upon his defense, they could not have rationally convicted Ricketts of the charged crimes without concluding that he acted together with at least Scott.
With respect to Hale, two theories were presented to the jury: (1) that he aided and abetted Ricketts’s attempt to murder Mauricio; and (2) he was one of two shooters. If the jury convicted Hale based upon the aiding and abetting theory, they necessarily found that he acted in concert with Ricketts. If they convicted him under the multiple shooter theory, they could rationally do so only if they found that he acted together with the other shooter, as well as the driver of the car.
Scott does not independently assert this argument, but does join in the arguments made by his codefendants. To the extent this argument is asserted by him, it is rejected. Scott’s charges were based entirely upon the theory that he aided and abetted the shooting by driving the car. By finding him guilty of the charged crimes as an aider and abettor, the jury necessarily found him guilty of acting in concert with the shooter (or shooters).
The instructional error is therefore harmless.
E. Ricketts’s Sentencing Issues
Ricketts contends that the imposition of upper term and consecutive sentences violates his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham). We disagree.
1. Facts Relevant to Sentencing Issues
The probation report concerning Ricketts describes the following eight adjudicated juvenile offenses (in chronological order): misdemeanor vandalism (former Pen. Code, § 594, subd. (b)(4)); misdemeanor theft (Pen. Code, §§ 484, 490.5); three sustained juvenile delinquency petitions for violating court orders (Welf. & Inst. Code, §§ 602, 777); felony auto theft and possession of a firearm (Pen. Code, § 12021, subd. (a); Veh. Code, § 10851, subd. (a)); sustained juvenile delinquency petition for being a runaway from placement; and felony auto theft (Veh. Code, § 10851, subd. (a)). Within one month after being paroled from the California Youth Authority, Ricketts was convicted as an adult for felony auto theft. (Veh. Code, § 10851, subd. (a).)
Among the aggravating factors cited in the probation report are the “defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings,” which are described as “numerous or of increasing seriousness,” and that Ricketts’s “prior performance on juvenile probation and Youth Authority was unsatisfactory.”
At the sentencing hearing, the court reviewed Ricketts’s record of prior juvenile offenses and his adult conviction. In deciding to impose the upper term on count 2, the court expressly took “into account all the things that are in the probation report, things I just mentioned about your record and the fact that other people were put in danger . . . .” The court imposed the upper term of 10 years for the firearm enhancement (§ 12022.5, subd. (a)(1)) “because of the fact of [Ricketts’s] poor performance on parole and probation . . . .” Regarding the hate crime enhancement, the court stated that it will “select the upper term and it is consecutive for all the previously mentioned reasons.” The sentences were “all consecutive for all the reasons in the probation report and all the reasons [the court] stated.” Finally, the court imposed the upper term of seven years on count 3 and stayed that sentence pursuant to section 654.
2. Analysis
Initially, we must reject Ricketts’s argument regarding the imposition of consecutive sentences. Our state Supreme Court has held that the imposition of consecutive sentences does not implicate a defendant’s right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 823 (Black II).) We are, of course, obligated to follow that decision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Next, we consider Ricketts’s argument concerning the imposition of upper term sentences in light of Cunningham and Black II. In Cunningham, the United States Supreme Court held that the imposition of an upper term sentence under California’s determinate sentencing law (DSL) based on a judge’s finding by a preponderance of the evidence that circumstances in aggravation are outweighed by circumstances in mitigation, violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 871.) The court reasoned that any fact that exposes a defendant to a greater potential sentence than the statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Id. at pp. 863-864.) The court also held that the middle term is the maximum term a judge may impose under the DSL without the benefit of facts reflected in the jury’s verdict—that is, facts found true by a jury beyond a reasonable doubt—or admitted by the defendant. (Id. at p. 868.)
Our state Supreme Court applied Cunningham in Black II. In that case, the court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) The defendant’s record of prior convictions, the court explained, includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) Such related issues include the numerousness and increasing seriousness of the crimes, whether the defendant served prior prison terms, whether the subject crime occurred while the defendant was on parole or probation, and (when it can be determined from the record of convictions) whether defendant’s performance on parole or probation was unsatisfactory. (People v. Towne (2008) 44 Cal.4th 63 (Towne); People v. Garcia (2008) 162 Cal.App.4th 18, 35; People v. Yim (2007) 152 Cal.App.4th 366, 371.) These issues may be decided by the court based upon a preponderance of the evidence standard without violating the Sixth Amendment. (Black II, supra, at pp. 819-820 & fns. 8-9; Towne, supra, at pp. 79-83.) Moreover, they can be determined based upon facts set forth in the defendant’s probation report. (Black II, supra, at pp. 818-820 & fns. 7 & 9.)
Here, the court expressly relied upon Ricketts’s history of numerous and increasingly serious offenses, as set forth in the probation report, in imposing the upper terms, as well as his poor performance on probation and parole. Under Black II and Towne, these findings are properly made by the court and are sufficient to render defendant eligible for the upper term sentences. Therefore, the court’s imposition of the upper term does not infringe upon his constitutional right to a jury trial.
F. Section 12022.53 Enhancements
With respect to counts 1 and 3, the Ricketts jury found true allegations made under subdivisions (d) and (e) of section 12022.53. Under subdivision (d), the jury found that Ricketts personally and intentionally discharged a firearm causing great bodily injury. Under subdivision (e), the jury found true the allegations that Ricketts committed the offenses for the benefit of a criminal street gang and a principal in the crime personally and intentionally discharged a firearm causing great bodily injury. The trial court imposed a 25-year–to-life sentence for the subdivision (d) enhancement on count 1. The court also imposed and stayed sentences for the subdivision (e) enhancement on count 1 and the subdivision (d) and subdivision (e) enhancements on count 3.
In this part, we will refer to section 12022.53, subdivision (d), as subdivision (d) and to section 12022.53, subdivision (e), as subdivision (e).
Ricketts contends that the sentences imposed and stayed under subdivision (e) must be stricken. The argument is based upon subdivision (f) of section 12022.53, which provides, in relevant part: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.” Ricketts contends that this language prohibits the court from imposing more than one enhancement sentence under section 12022.53 even if the second sentence is stayed. Doing so, he argues, constitutes an illegal sentence.
Our state Supreme Court recently resolved this issue in People v. Gonzalez (2008) 43 Cal.4th 1118. In that case, the court explained that the words “impose” and “imposed” in subdivision (f) of section 12022.53 “mean impose and then execute, as opposed to impose and then stay.” (People v. Gonzalez, supra, at p. 1126.) Therefore, the court held that “after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements . . . that were found true for the same crime must be imposed and then stayed.” (Id. at pp. 1122-1123.)
Here, the trial court did exactly what the Gonzalez court said should be done: having imposed punishment for the subdivision (d) enhancement on count 1, the court imposed and stayed the sentence for the subdivision (e) enhancement. There is no error.
G. Court Security Fee
As to each defendant, the court imposed a $20 court security fee pursuant to section 1465.8. This statute was enacted in 2003, after the date of the crimes in this case. They assert that the imposition of the fee constitutes an unconstitutional ex post facto law. As with the preceding issue, the California Supreme Court has recently settled this issue. In People v. Alford (2007) 42 Cal.4th 749, the court held that because the security fee “serves a nonpunitive purpose,” “it does not violate either federal or state prohibitions against ex post facto statutes.” (Id. at p. 759.) The fee was therefore proper.
Section 1465.8, subdivision (a)(1), provides, in relevant part: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .”
III. Disposition
The true findings with respect to the hate crime allegation connected with count 2 are stricken and the sentences imposed with respect to such findings are reversed. The judgments are otherwise affirmed. The trial court is directed to modify the abstracts of judgment accordingly, and to send copies of the modified abstracts of judgment to the Department of Corrections and Rehabilitation.
We concur: Ramirez, P.J., Miller, J.