Opinion
H035031
11-28-2011
THE PEOPLE, Plaintiff and Respondent, v. JORGE RICO et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS072680)
Defendants Jorge Rico, Sergio Pablo, and Cesar Valle appeal from a judgment of conviction entered after a jury found them guilty of kidnapping for robbery (Pen. Code, § 209, subd. (b) - counts 1, 5, 9), kidnapping to facilitate carjacking (§ 209.5, subd. (a) -counts 2, 6, 10), carjacking (§ 215, subd. (a) - counts 3, 7, 11), second degree robbery (§ 211 - counts 4, 8, 12), possession of a loaded firearm (§ 12031 - count 14), and participation in a criminal street gang (§ 186.22, subd. (a) - count 16). Rico was also convicted of possession of a firearm by an ex-felon (§ 12021 - count 15). In addition, the jury found: (1) Valle personally used a firearm in connection with counts 1 through 12 (§ 12022.53, subd. (b)); (2) a principal in Pablo's and Rico's offenses was armed with a firearm (§§ 12022, 12022.53, subds. (b), (e)); (3) defendants' offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)); and (4) additional gang enhancements as to count 14 (§ 12031). In a bifurcated proceeding, the trial court found that Rico had suffered a prior strike conviction (§ 1170.12). The trial court sentenced Rico to 40 years to life in state prison. Both Valle and Pablo were sentenced to 25 years to life in state prison.
All further statutory references are to the Penal Code unless stated otherwise.
On appeal, defendants' contentions relate to the admissibility of evidence, sufficiency of the evidence, jury instructions, sentencing, and juror misconduct. We find that there were sentencing errors and modify the judgment. As modified, the judgment is affirmed.
Rico has also filed a petition for writ of habeas corpus, which we have considered with this appeal. We dispose of his habeas corpus petition by separate order.
I. Statement of Facts
On the evening of September 14, 2007, Gerardo was driving with his friends, Salvador, Miguel, and Juan. At about 9:20 p.m., Gerardo drove his burgundy Honda Accord into the parking lot of a night club called Mariano's. While his friends remained in the car, Gerardo approached Catherine Brown to talk to her. Juan then got in the driver's seat because the club was in an "ugly" neighborhood. Shortly thereafter, two men entered the back seat. One of them pulled out a gun, pointed it at Juan's head, and told him to drive. He also told the three men to give them their money or they would kill them. Juan handed them his wallet, and one of the men took about $600 in cash out of the wallet and threw the wallet on the ground. Salvador gave them more than $1,000 in cash and a check. The check, which was made out to Samuel Vega, was for $400. Miguel, who was sitting in the front passenger seat, put his wallet containing $150 under the seat. The men directed Juan to drive to a nearby park, where they told the victims to get out. The three victims ran back to Mariano's.
Gerardo, Salvador, Miguel, and Juan were identified only by their first names. Juan did not testify.
Brown admitted that she had prior convictions for prostitution and possession of drugs for sale.
When Gerardo saw that his car was leaving, he called 911 to report that it had been stolen. Someone then grabbed his cell phone and hopped in a black Buick Rendezvous SUV. Brown heard someone saying "give us your wallets" in Spanish. She also saw two men from the black SUV, which had a dealer plate with a star on it, get into the Honda. When the Honda drove off, the SUV followed. Brown called 911 and tried to follow the Honda. However, she lost them within a block.
Sergeant Mark Lazzarini and his partner Officer Chris Balaoro responded to the broadcast of a stolen maroon Honda Accord at Mariano's. They had also been informed that the robbers were associated with a small, black SUV with a gold emblem or star. As Sergeant Lazzarini and Officer Balaoro drove towards the club, they saw a maroon Honda Accord and a small, black SUV, a Buick Rendezvous, which had a dealer license plate with a gold star. They followed the vehicles as they turned into the La Posada Apartment complex. La Posada Trece, a Sureno gang, originated in this complex.
Sergeant Lazzarini activated the lights on his patrol car, and the Honda pulled into a parking space. However, since the SUV accelerated to go south, Sergeant Lazzarini broadcast that it was fleeing. As Sergeant Lazzarini approached the Honda, Valle exited the vehicle. When he realized that Sergeant Lazzarini was a police officer, he took off running toward the area where the SUV had gone. Valle was wearing a black T-shirt with a picture of Bob Marley's face on it, gray shorts or pants, and brown gloves. Sergeant Lazzarini began chasing him.
When Sergeant Lazzarini rounded a corner, he saw Valle running towards the SUV. At that point, Pablo, who was wearing a light-colored T-shirt, exited the SUV, went into the trash enclosure of the apartment complex, and exited "a second" later. Pablo was then joined by Valle, and they both ran out of the apartment complex as Sergeant Lazzarini called for backup.
Meanwhile, the SUV had pulled into a parking spot. Sergeant Lazzarini told the occupants to show their hands, and three people exited the vehicle. Rico was the driver of the SUV, Quiroz was the right front passenger, and Alejandro Cisneros was the left rear passenger. After the men were arrested, $110 and a paycheck, which was made out to Samuel Vega, were found near the bumper of the SUV where Sergeant Lazzarini had seen one of the men appear to be setting something down. Officers found $1,200 in cash in the rear compartment of SUV. Sergeant Lazzarini also found a semiautomatic handgun in a dumpster in the trash enclosure into which Pablo had gone briefly. There was a wallet under the right front passenger seat of the SUV, and Quiroz had two $100 bills in his pocket.
Officers Omar Pena and Ian Parsons detained Valle and Pablo in a nearby field. Valle was no longer wearing brown gloves, which were found on the path that he had taken. After searching the Honda, police found Miguel's wallet under the front passenger seat and over $400 in cash was found on the driver's seat.
There was also evidence that defendants were gang members. When Rico was arrested, he had various gang-related tattoos: "MXP" on his abdomen; "Salinas" on his back; "M" above his right knee; "P" above his left knee; one dot on one finger of his right hand; and three dots on left hand. After searching Rico's residence, officers found a photograph of Rico, who had a blue bandana draped over his shoulder and was throwing gang signs. They also found a key fob for a 2002 black Buick Rendezvous and a receipt from Gold Star Motors.
As to Valle, he had three dots on his left wrist and on his left knee, and several gang-related contacts. When Officer Kendall Gray had contact with Valle on October 6, 2004, Valle was wearing a belt buckle with "M" on it and blue sweat pants, and had a small baseball bat with "the letters SS, the numbers one three, and then it had the word Surenos on it." Valle, who was with five other Surenos, stated that he had the bat "[t]o smack somebody," and claimed that someone had shot a hole through the headrest in his car. According to Valle, he had been a Sureno since he was a freshman and that Surenos committed drive-by shootings. Detective Danny Warner also had contact with Valle. On April 23, 2004, Valle was with other Surenos, Diego Barajas, Oswaldo Hernandez, and Sergio Salazar. One of them was wearing a belt with the letter "M," another was wearing a blue and white striped shirt, and Valle was wearing a pair of Adidas with three blue stripes. According to Detective Warner, this type of clothing is worn by Surenos. At that time, Valle was charged with possession of alcohol by a minor. On September 6, 2003, Valle was in a stolen vehicle with another Sureno gang member.
Officer Jason Gates conducted a search of Pablo's residence in September 2007. There was a wood railing with the letters "MPL" carved on it. "MPL" was also written several times on the interior door to a shed that was located outside Pablo's residence. Inside the shed, Officer Gates found an ice chest with Sureno gang-related writing on it. There was also a plastic box with "MPL" written on it, a notebook with gang indicia, and Sureno gang indicia written on a dresser drawer inside the residence. Officer Gates found a cell phone and unlocked it by typing "1313," which is a number that Surenos identify with.
There was evidence that Quiroz and Cisneros were gang members. Quiroz had gang-related tattoos: one dot on his right elbow; three dots on his left elbow; and three dots on his left wrist. Cisneros had three dots above his left hand and three dots next to his left eye. Officers found a blue bandana and a CD cover with "MPL Del Monte" written on it in Cisneros's truck. "South Side" was written on tile in his backyard, and "X3 SUR" and "XIII" were written on the chimney.
Commander Jeff Budd, who was in charge of the classification unit at the Monterey County jail, testified that there are special pods for Nortenos and Surenos in the jail. Defendants were assigned to a Sureno pod. According to Commander Budd, if a Norteno or non-Sureno is placed in a Sureno pod, he "would probably be injured" by other Sureno gang members. He explained that Sureno gang members would be concerned that a non-Sureno would be a snitch and thus they would be unable to conduct business. Defendants were not rejected by Sureno gang members in the pods, and they did not ask to be transferred out of the Sureno pod.
Officer Bryan McKinley testified regarding gang activities in Monterey County.He testified that Surenos associate with the word "Sur," the color blue, the Roman numeral "XIII," the 13th letter of the alphabet "M," which is a reference to their affiliation to the Mexican Mafia. In 2007, there were between 500 and 1,000 Sureno gang members in Salinas. Their primary activities were attempted murder, gun possession, carjacking, robbery, and auto theft. Auto theft is their primary means of making money. The money is divided among the gang members who stole the vehicle, and a portion is given to the gang for purchasing firearms, drugs, and helping individuals in jail. Hondas, especially older Accords, are the most popular vehicles stolen by Surenos.
Officer McKinley testified regarding his qualifications and both the prosecutor and defense counsel questioned him as if he were an expert. However, the prosecutor never offered him as an expert, and the trial court never found that he was qualified to testify as an expert.
Officer McKinley testified regarding eight predicate offenses committed by Sureno gang members. On March 14, 2007, Juan Vega and Jose Avala Torres were in a stolen vehicle when one of them fired shots at a Norteno. They were convicted of auto theft and assault with a firearm with gang enhancements. On February 5, 2007, Hugo Cervantes and Hugo Chavez shot at two victims. They were convicted of attempted murder and shooting from a vehicle with gang enhancements. On January 29, 2006, Andre Lopez and Angle Valtierra asked the victim if he wanted to die and took money and various items from him. They were convicted of robbery with gang enhancements. On December 15, 2005, Gabino Gonzalez and Juan Perea fired several rounds at an occupant of a vehicle, missed, and struck another individual. They were convicted of two counts of attempted murder with gun and gang enhancements. On March 25, 2005, and again on April 6, 2005, Marco Lucas and Angel Flores were involved in a gang fight in which a victim was shot. They were convicted of attempted murder and assault with a deadly weapon with gang enhancements. On January 4, 2005, Hector Chavez and Juan Rivera were in a fight with a Norteno gang member, and Chavez shot the Norteno gang member. They were convicted of attempted murder with gun and gang enhancements. On February 18, 2004, Levi Lopez and another Sureno gang member committed a carjacking. He was convicted of carjacking, gang offenses, and witness intimidation. On September 27, 2003, Juan Pimental was convicted of robbery with a gang enhancement.
Officer McKinley concluded that defendants were Sureno gang members. He noted that Rico's tattoo of "MXP" on his abdomen is abbreviation for Mexican Pride Locos, which is a Sureno criminal street gang in Salinas. The "M" and "P" tattoos on his legs are also for Mexican Pride Locos. He explained that gang members, who claim allegiance to the area around Salinas, will often have a "Salinas" tattoo. Rico's one- and three-dot tattoos refer to the number 13, which is used by Surenos to identify themselves. Rico was housed in the Sureno area of the jail, and Sureno gang members would not have allowed him to stay there unless he was a Sureno in good standing. There was a photograph of Rico, which was dated November 2005. Rico had a blue bandana, which is common among Sureno gang members, draped over his shoulder. Rico also had a telephone list with names and numbers, including those of Sureno gang members. On March 24, 1998, Rico, who was wearing a blue jacket, was involved in a violent offense in which Sureno gang slogans were yelled. As a result of this incident, Rico was incarcerated until December 2006. Based on this evidence, Officer McKinley opined that Rico was an active participant in the Sureno gang.
Officer McKinley testified that various writings at Pablo's residence indicated gang affiliation. He explained that "HBN," which was found on a cooler in the shed, is an abbreviation for Hebbron, and Hebbron Street is a known Sureno criminal street gang in Salinas. The "N" was crossed out because it represented Norte or Norteno, which is their rival gang. "X3" is also a Sureno symbol. Pablo was displaying a gang hand sign for Mexican Pride in a cell phone photograph. Pablo has also been housed in the Sureno pod in the jail. On August 16, 2007, Pablo and two other Surenos gang members were involved in an altercation with two Norteno gang members. Based on this evidence, Officer McKinley believed Pablo was an active participant in a Sureno criminal street gang.
Regarding Valle, Officer McKinley noted that he was listed on Rico's telephone list and had Sureno gang tattoos. Valle had been housed in the Sureno pod in the jail where he has been visited twice by Sureno criminal street gang members. Officer McKinley also testified regarding Valle's additional contacts with the police. On June 26, 2007, Valle, who was with several Sureno gang members, was contacted during a traffic stop. On April 28, 2007, Valle went to a party with other Sureno gang members. On January 23, 2007, Valle admitted that he used to be a Sureno gang member and he associated with Sureno gang members on occasion. On May 31, 2006, someone shot at Valle's house. His family believed the shooting was gang-related because Valle was a Sureno gang member, and Valle believed the shooting stemmed from an incident earlier that day with Norteno gang members. On July 17, 2004, Valle told Officer Warner that he was wearing gang-related clothing. On March 19, 2004, Valle and other Surenos were involved in an altercation with some Nortenos. On January 17, 2004, Valle was driving away from the residence of Jose Avala Torres, who committed one of the predicate offenses. There were other Sureno gang members in Valle's car. On October 19, 2000, Valle was involved in an incident in which a new gang member was being jumped in. Based on this evidence, Officer McKinley opined that Valle was an active Sureno gang member.
Evidence of the family's belief regarding this shooting was admitted only against Valle.
Officer McKinley also testified regarding Quiroz and Cisneros. He noted that Quiroz had Sureno gang tattoos, was housed in the active Sureno gang housing in the jail, and he and other Sureno gang members stole some beer in October 2006. Cisneros also had Sureno gang tattoos, was housed with other active Sureno gang members in jail, had gang writing on items in his vehicle, and admitted being a Sureno gang member in February 2009. Based on this evidence, Officer McKinley concluded that Quiroz and Cisneros were active criminal street gang members.
According to Officer McKinley, Mariano's was frequented by Nortenos, and a carjacking in Norteno territory would benefit a Sureno gang by showing disrespect to the Nortenos. In his view, it would be unnecessary for perpetrators to identify or advertise themselves as gang members in order for the gang to benefit from notoriety of the crime because victims describe the crimes as gang-related. The Sureno gang would also benefit from a violent crime with gun use because they want the community to be afraid of them and to fear retaliation if they testify in court. When victims are afraid, Surenos can continue to commit crimes without fear of being identified. In gang culture, fear is equated with respect, and thus aids in recruiting more gang members. Sureno gang members would not take inactive Sureno gang members with them in committing a violent crime because they might cooperate with the police.
Based on a hypothetical question that included the facts of this case, Officer McKinley testified that the kidnapping, carjacking, robbery, and possession of the gun were committed for the benefit of or in association with the Sureno gang. He also testified that this conduct would promote, further, or assist criminal conduct by the gang.
It was stipulated that Rico had previously been convicted of a felony listed in section 12021, subdivision (e) and was under the age of 30 when he committed the offenses charged in this case. It was also stipulated that Rico's fingerprints were found on the SUV.
II. Discussion
A. Admissibility of Gang Expert Testimony
Defendants contend that the trial court abused its discretion in admitting the testimony of Officer McKinley on the "ultimate issue of whether the charged crimes were committed for the benefit of, or in association with, a Sureno street gang." (Caps. & boldface omitted.)
Here, the prosecutor asked Officer McKinley the following hypothetical question: "Okay. Now, I've got a long hypothetical I'd like to ask your opinion on. We assume there were five active Sureno gang members. They all get in one vehicle, go to the area of Mariono's Club, a Norteno area. Two get out, get into a red Honda -- a Honda -- put a gun to the head of the driver. Tells him to drive. Gives him instructions on where to go. [¶] The owner of the car is standing outside the car. Sees his car take off. Somebody --and tries to call 911. Somebody runs from behind him, grabs his cell phone, keeps going, and gets into the SUV. I'm sorry, in the Honda, the stolen car. [¶] Stolen car continues on to a secluded area. On route, and also at the area, the victims are told to turn over their money and, in fact, most of them do. They're -- gotten out of the car. The Honda is driven away by the two people, two gang members who have gotten into it. [¶] Within a few blocks, that black SUV and the Honda are spotted going together heading away from that direction, and go into the La Posada Apartments complex. [¶] Assume that these vehicles both turn into La Posada, followed by police vehicles. The stolen vehicle pulls over. The driver of the stolen vehicle, which is a Honda, is wearing gloves. [¶] So now there's four people in the SUV. One person in the SUV jumps out, goes into the dumpster area, where the gun is later found. The SUV then continues on. The person who had been driving the Honda, and the person who dumped the gun now run into the fields. The three other gang members remain in the SUV. [¶] In the field is found stolen cell phone, victims' wallet and money are found in the Honda, a lot of money found in the SUV. One gang members has some crisp hundred dollar bills in his pocket. [¶] In your opinion, first asking you about the kidnapping part of this hypothetical, would that be for the benefit of, or in association with a Sureno gang?"
Before Officer McKinley could respond, defense counsel objected on the ground that the question asked him to give an opinion on whether defendants were guilty. The trial court overruled the objection. Officer McKinley explained that there was an "intimidation factor" when five gang members committed a kidnapping together, and that a kidnapping creates a level of fear in the community. He also testified that the carjacking would have been for the benefit of or in association with the Sureno gang, because the presence of five gang members allowed the roles to be divided up to ensure that witnesses would not call the police, one member could drive the vehicle, others could demand money from the victims, and still others could follow the stolen vehicle. He further noted that a stolen vehicle could then be used to commit other crimes. According to Officer McKinley, the robbery would benefit the gang because the money would be divided among not only the gang participants but also the gang. The gang would then use the money for buying food and alcohol for parties, guns for their criminal endeavors, and drugs to sell. The money would also be used to assist gang members in jail. In his view the possession of a gun during the offenses would be for the benefit of or in association with a gang, because gun adds to the level of fear and intimidation and aids them in the commission of the offenses.
Courts "have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case. 'Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citation.] The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion.' [Citations.]" (People v. Gonzalez (2006) 38 Cal.4th 932, 944 (Gonzalez).) "[A]n expert may properly testify about the size, composition, or existence of a gang; 'motivation for a particular crime, generally retaliation or intimidation'; and 'whether and how a crime was committed to benefit or promote a gang.' [Citations.]" (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513.) The expert witness may answer "hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony. 'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." ' [Citations.]" (Gonzalez, at pp. 946-947; People v. Vang (2011) 52 Cal.4th 1038 (Vang).)"In reviewing a trial court's ruling allowing expert testimony, we ask whether the ruling was an abuse of discretion. [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 177.)
Here, based on the facts of the hypothetical question, Officer McKinley opined that the offenses benefited the gang by creating a level of fear in the community, by supplying a vehicle to commit other offenses, and by providing profits not only to the perpetrators but also to the gang as a whole. This testimony of the gang's culture and habits was sufficiently beyond common experience that his opinion would assist the jury in determining whether the charged offenses were committed for the benefit of, or in association with, a criminal street gang. Thus, the trial court did not abuse its discretion in admitting the evidence.
The cases upon which defendants rely do not compel a contrary conclusion. In People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew),disapproved in Vang, supra, 52 Cal.4th 1038, the gang expert testified that when one gang member possessed a gun in a car, the other gang members in the car had knowledge of the gun and the intent to possess it. (Killebrew, at p. 652.) Killebrew held that it was error to admit the expert's belief of the defendants' knowledge and intent because this was an issue for the jury. (Id. at p. 658.) Here, Officer McKinley never testified as to defendants' knowledge or intent. Instead, in response to a hypothetical question, he testified that the offenses would be committed to benefit or in association with a criminal street gang under certain circumstances.
People v. Valdez (1997) 58 Cal.App.4th 494 (Valdez)is also not controlling. In Valdez, several Norteno gangs joined together on the day of the offenses, and this court upheld the admission of the gang expert's opinion that the offenses had been committed for the benefit of a criminal street gang. In dicta, Valdez stated: "[H]ad all or most of the participants in the caravan been affiliated with the same Norteno gang, then perhaps expert testimony about rivalries, turf, respect, and forms of violence used by gangs might enable a jury to determine the 'for the benefit etc.' element as easily and intelligently as a gang expert could, thereby precluding the need for an expert opinion on that specific issue." (Id. at p. 508, italics added.) However, this dicta does not apply to the present case. Here, the evidence of gang involvement was not as obvious as in other cases since there was no display of colors or shouting of gang slogans.
Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 865 (Benavidez)is also inapposite. Benavidez held that the trial court properly rejected an expert's declaration in which he stated that the police owed a duty of care to the plaintiffs because this issue was a question of law for the trial court. Similarly, Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1185 (Summers), found prejudicial error after an expert witness gave his opinion on numerous issues of law as well as the ultimate issue in the case. In contrast to Benavidez and Summers, here, the expert testimony assisted the jury in understanding the gang's culture and habits.
B. Admissibility of Evidence of Predicate Offenses
Defendants next argue that the trial court erred in admitting evidence of eight predicate offenses to prove the pattern of criminal activity element of the gang enhancements and the gang offense.
In her trial brief, the prosecutor sought to introduce evidence of 12 predicate offenses. Rico brought a pretrial motion to limit the admission of evidence of all but three of these offenses. He argued that the prosecutor could easily prove this element by "using certified court documents," eight of the predicate offenses involved murder or attempted murder, and the number of predicate offenses was "intended to inflame the passions and prejudice of the jury." The prosecutor responded that the evidence was relevant to prove a pattern of criminal gang activity, to show that defendants were associated with specific gang members, thus indicating that they were also gang members, and "to illustrate the concept of back-up and what gang members will do for each other." Following argument, the trial excluded evidence of the four most serious of the 12 offenses, which were those involving murders.
Pablo and Valle joined in Rico's motion and arguments.
A gang enhancement requires proof that the defendant committed the substantive offense "for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b).) A conviction for criminal street gang activity requires proof that the defendant "actively participates in any criminal street gang." (§ 186.22, subd. (a).) Section 186.22, subdivision (f) defines a " 'criminal street gang' " as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities" certain specified criminal acts, and "having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." A pattern of criminal gang activity is established by showing the commission or attempted commission of, or conviction for "two or more" enumerated offenses "committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 4.) The offenses specified in section 186.22, subdivision (e) that may qualify as part of a " 'pattern' " are often referred to as " 'predicate offenses.' " (People v. Gardeley (1996) 14 Cal.4th 605, 617.) The charged crimes can be used to prove predicate offenses. (Id. at pp. 624-625.)
Evidence of predicate offenses is admissible if it is "not more prejudicial than probative and is not cumulative. [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214,223; Evid. Code, § 352.) For Evidence Code section 352 purposes, " 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121 (Kipp).) "Although no bright-line rules exist for determining when evidence is cumulative, we emphasize that the term 'cumulative' indeed has a substantive meaning, and the application of the term must be reasonable and practical." (People v. Willliams (2009) 170 Cal.App.4th 587, 611 (Williams).)We review the trial court's ruling on the admission of gang evidence under the abuse of discretion standard. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) As Williams observed, "[t]he trial court has great discretion in determining the admissibility of evidence, and on appeal, we find reversible error if the trial court's exercise of its discretion was arbitrary, capricious, or patently absurd resulting in a manifest miscarriage of justice. [Citations.]" (Williams, at p. 606.)
Defendants rely primarily on Williams, supra, 170 Cal.App.4th 587. In Williams, the defendant was charged with possession of a firearm and ammunition by an ex-felon, drug offenses, gang enhancement allegations, and a substantive gang offense. (Williams, at p. 595.) The trial court admitted evidence of three prior crimes involving the defendant under Evidence Code section 1101, fifteen other crimes and contacts with law enforcement involving the defendant, and six predicate offenses, one of which involved the defendant. (Williams, at pp. 598-599, 601-602.) Though the defendant in Williams conceded that the evidence of the predicate offenses was relevant, Williams found "plain error in the admission of such unnecessary quantities of evidence, which turned the trial of this routine drug and weapons possession case into a weeks-long marathon." (Williams, at pp. 595, 609.) Williams further concluded that "it was an abuse of discretion to admit cumulative evidence concerning issues not reasonably subject to dispute. The sheer volume of evidence extended the trial—and the burden on the judicial system and the jurors—beyond reasonable limits, and the endless discussions among the trial court and counsel concerning the admissibility of such evidence amounted to a virtual street brawl." (Williams, at p. 611.) However, Williams found that the error was harmless because the evidence was relevant, and there was no prejudice from the inflammatory nature of the offenses. (Williams, at pp. 612-613.)
This issue was also considered in People v. Hill (2011) 191 Cal.App.4th 1104. In Hill, the trial court exercised its discretion and admitted evidence of eight predicate offenses. (Id. at p. 1138.) Hill stated: "We do not read Williams to create an artificial limit of seven (or fewer) predicate offenses to prove the gang enhancement. The trial court here exercised its discretion and eliminated two offenses the prosecution sought to introduce. This ruling created neither a 'street brawl' nor 'endless discussions.' No error occurred." (Id. at p. 1139.)
Here, as in Williams and Hill, the evidence of the predicate offenses was relevant to establish the gang enhancement allegations and the substantive gang offense. Defendants disputed that the Surenos were a criminal street gang, whether their primary activities involved the enumerated felonies, and whether defendants were members of a criminal street gang. Moreover, the evidence did not " ' "tend[] to evoke an emotional bias against" ' " defendants. (Kipp, supra, 26 Cal.4th at p. 1121.) Though some of the predicate offenses involved attempted murder, the prosecutor had a right to prove that one of the primary activities of the gang was attempted murder. More importantly, that defendants were not involved in any of the predicate offenses lessened any prejudicial effect. Further, unlike in Williams, the testimony regarding the eight predicate offenses did not "necessitate undue consumption of time." (Evid. Code, § 352.) The discussion regarding the admissibility of the evidence was very short. Officer McKinley's testimony regarding the predicate offenses entailed only 15 pages of the entire trial transcript. Nor are we persuaded that had the evidence of predicate offenses been limited to documentary evidence, the prejudicial effect or consumption of time would have been significantly different. Thus, this court cannot conclude that the trial court's ruling allowing testimony regarding the eight predicate offenses was "arbitrary, capricious, or patently absurd." (Williams, supra, 170 Cal.App.4th at p. 606.)
C. Admissibility of Other Gang Evidence
Defendants argue that the trial court abused its discretion under Evidence Code section 352 in admitting certain gang evidence.
"Evidence Code section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. 'Evidence is substantially more prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.]" (People v. Tran (2011) 51 Cal.4th 1040, 1047.) We review a trial court's ruling under this statute for abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
Defendants first challenge testimony by Commander Budd.
Commander Budd testified that there were special pods for Nortenos and Surenos in the jail. He also testified that since their incarceration in September 2007, defendants had been assigned to a Sureno pod. The prosecutor then asked: "Based on your experience and training, a deputy, say, makes a mistake and puts a nonactive gang member in a Sureno pod, what happens?" Over defense counsels' objections, Commander Budd responded: "In essence, [what] happens is if I was to put a Norteno or a non-Sureno in any one of the Sureno pods, that subject would probably be injured. He would be probably standing at the doorway bleeding wanting to get out." When defense counsel again objected that this testimony was inflammatory, the trial court ordered the jury to disregard "the part about bleeding." Commander Budd then explained that Sureno gang members would be concerned that a non-Sureno would be a snitch and thus they would be unable to conduct business. He concluded by testifying that defendants had not been rejected by Sureno gang members in the pods.
This testimony was clearly relevant. The prosecutor was required to prove that defendants were gang members, and evidence that defendants were housed in a Sureno pod and were not injured by Surenos in the pod tended to prove this fact. That Surenos would injure non-Surenos was not unduly inflammatory, and thus the trial court did not abuse its discretion in admitting Commander Budd's testimony.
Defendants next challenge the admissibility of Officer McKinley's reference to the Mexican Mafia.
The prosecutor asked Officer McKinley about the "special colors, letter, or symbols" that were affiliated with Surenos. He responded: "Sureno gang members obviously refer, associate with the word Sureno or Surenos; sur, S-u-r, being an abbreviated version. The color blue is also another symbol they use. The Roman numeral X along with a 3, or sometimes Roman numeral XIII for the number 13; the number 13 being a reference to the 13th letter of the alphabet the letter M, which is a reference back to their affiliation to the Mexican Mafia." Defense counsel's objection was overruled.
Here, there was evidence that Rico had "M" tattooed on his knee, and Valle and one of his associates wore a belt buckle with "M" on it. There was also evidence of the number "13" in various forms, including tattoos and a password for a cell phone. As the prosecutor pointed out, it was necessary for the officer to explain why he concluded that the number "13" and the letter "M," the 13th letter of the alphabet, had gang connotations. Officer McKinley's explanation that "M" and "13" demonstrated the individual's affiliation to the Mexican Mafia was brief, and he did not describe the Mexican Mafia or refer to any of its actions. Thus, the trial court did not err in concluding that its probative value outweighed its prejudicial effect.
Defendants rely on People v. Albarran, supra, 149 Cal.App.4th 214 as support for their position that the admission of the gang evidence was extremely prejudicial. In Albarran, two Hispanic males shot guns at a house. Though there was substantial evidence that the sole defendant was a gang member, there was no evidence as to the identity of the other individual. (Id. at pp. 217-219.) Prior to trial, the court ruled that the proffered gang evidence was relevant not only to the gang enhancement but also to the issues of motive and intent for the underlying charges. (Id. at p. 220.) The jury found the defendant guilty of the charged offenses and found the gang enhancement allegations true. (Id. at p. 222.) However, the trial court later found that there was insufficient evidence to support the gang findings and they were dismissed without prejudice. (Ibid.) Albarran held that, even if some of the gang evidence was relevant to the issues of motive and intent, other inflammatory gang evidence was admitted that was not relevant to the charged offenses. (Id. at pp. 227-228.) Albarran stated: "Certain gang evidence, namely the facts concerning the threat to police officers, the Mexican Mafia evidence and evidence identifying other gang members and their unrelated crimes, had no legitimate purpose in this trial. . . . From this evidence there was a real danger that the jury would improperly infer that whether or not [the defendant] was involved in these shootings, he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished." (Id. at p. 230.) Accordingly, Albarran concluded that the case was "one of those rare and unusual occasions where the admission of evidence . . . violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232.) Albarran is readily distinguishable from the present case. Here, the proffered gang evidence was relevant to show the basis for Officer McKinley's opinion that all five perpetrators, who were acting in concert, were members of the same gang.
People v. Bojorquez (2002) 104 Cal.App.4th 335, is also distinguishable from the present case. In Bojorquez, the defendant was not charged with gang enhancement or a substantive gang offense. (Id. at p. 337.) However, extensive gang evidence, including the gang's activities and the gang's character for violence, was admitted. (Id. at p. 341.) Bojorquez held that the only basis for the admission of gang evidence was to impeach the testimony of a fellow gang member, and that the probative value of the "was minimal, if not nonexistent." (Id. at p. 343.) In contrast to Bojorquez, here, the evidence was admitted for a relevant purpose.
For the same reason, People v. Hisquierdo (1975) 45 Cal.App.3d 397 (Hisquierdo)and People v. Ayala (2000) 23 Cal.4th 225 (Ayala) do not support defendants' position. In Hisquierdo, the prosecutor asked a defense witness if he was in the " 'same association' " as the defendant. (Hisquierdo, at p. 404.) After the defense objected, the prosecutor then made an offer of proof that he intended to show that both the defendant and the witness were members of the Mexican Mafia, thus demonstrating bias by the defense witness. (Id. at pp. 404-405.) The trial court sustained the objection. (Id. at p. 405.) When the jurors returned, the trial court admonished them to " 'disregard the last question and answer concerning the existence of an organization known as the Mexican Mafia.' " (Ibid.) Hisquierdo held the error was not prejudicial. (Ibid.) In Ayala, the trial court ruled that evidence of the defendant's involvement in the Mexican Mafia would be prejudicial, and thus ordered certain prosecution witnesses to use "various euphemisms," such as " 'southern group' " and " 'northern group,' " to explain their prior conduct and motivation to testify. (Ayala, at pp. 275, fn. 4, 277-276.) Ayala held that there was no error in presenting the evidence in this manner. In contrast to Hisquierdo and Ayala, here, defendants were charged with gang enhancement allegations and a substantive gang offense, and thus the reference to the Mexican Mafia was more relevant.
We thus conclude that the trial court did not abuse its discretion in admitting evidence of Sureno gang members' behavior in jail or a reference to the Mexican Mafia to explain the significance of gang symbols.
D. Admissibility of Evidence of Valle's Gang Contacts
Defendants also contend that the trial court abused its discretion in admitting evidence of other crimes by gang members with whom Valle had contact to prove the substantive gang offense and the gang enhancement allegations.
The prosecutor sought to introduce evidence that the police had numerous contacts with Valle while he was in the company of Sureno gang members. Defense counsel objected to the details of the crimes committed, arguing that it was more prejudicial than probative and that it was cumulative. The prosecutor argued that the evidence was relevant to show Valle associated with gang members, was a Sureno gang member, and knew what kind of crimes Surenos committed. The trial court excluded some of the evidence, but ruled that most of it was admissible.
Defendants argue: "There was no reason to inform the jury Valle was in a stolen vehicle on September 6, 2003. . . . The jury did not have to learn that on October 6, 2004 Valle had a small baseball bat which he said he carried 'to smack someone.'. . . There was no reason to allow the police office[r] to testify he asked Valle about a bullet hole in the headrest of the front passenger seat, and that Valle replied someone had shot at him. . . . The jury did not have to learn that on January 23, 2007 two Sureno gang members who had just committed a robbery sought shelter in Valle's home. . . . The jury also heard prejudicial evidence that on May 31, 2006 someone had fired shots at Valle's house in supposed retaliation for an earlier incident that day with rival Norteno gang members. . . . The jury also learned of Valle's participation in an altercation between Surenos and Nortenos on March 19, 2004 where Sureno gang slogans were yelled, and someone with Valle fired several shots in the direction of the Nortenos. . . . Finally, the jury heard evidence Valle participated in an assault on someone wanting to join the gang, a common initiation practice."
"The substantive offense defined in section 186.22(a) has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element of the substantive offense defined in section 186.22(a). The second element is 'knowledge that [the gang] members engage in or have engaged in a pattern of criminal gang activity,' and the third element is that the person 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22(a).)" (People v. Lamas (2007) 42 Cal.4th 516, 523.) Thus, the evidence of Valle's association with other gang members who committed violent acts tended to show that his participation in the gang was more than nominal or passive. The evidence was also relevant to prove his knowledge that gang members engaged in a pattern of criminal gang activity.
Defendants argue that this evidence was cumulative because there was ample evidence to prove that Valle was a gang member without admitting evidence of criminal acts committed by other gang members. This evidence included: Valle had three dots on his left wrist and his left knee, a common Sureno tattoo; he did not object to his assignment to the Sureno pod in the jail; he was in the company of other Sureno gang members on several occasions; he was wearing blue pants and a belt with the letter "M" on it; he told an officer that he had been a Sureno since he was a freshman in high school; and he admitted he was a Sureno gang member in May 2006, October 2004, and January 2004.
However, as the Attorney General points out, this evidence was not conclusive evidence of Valle's gang membership. In closing argument, defense counsel claimed that there was insufficient evidence that Valle was a gang member. Counsel asserted that Officer McKinley had "his marching orders" to testify that "anything and everything is a gang member and/or gang-related." Counsel then argued that Valle's connection to Sureno gangs was passive and that Valle was joking with a police officer about wearing blue. He also questioned whether jail authorities would allow inmates to determine where other inmates would be housed, and referred to Valle's tattoos as "real tiny . . . [n]ot exactly flying colors or flying symbols." Counsel argued that being in the company of Sureno gang members did not make Valle a gang member. In addition, counsel emphasized that there were no gang photographs of Valle, that he was not wearing gang clothing on the night of the offenses, and that there were no gang writings associated with Valle. Thus, the challenged evidence was not cumulative.
We also disagree with defendants' claim that "[e]vidence other Surenos and Nortenos stole cars and committed violent crimes was irrelevant." This evidence was relevant to prove Valle's knowledge that gang members engaged in a pattern of criminal gang activity. Though Officer Gray informed Valle in October 2004 of the types of crimes that gang members commit, evidence that Valle was present when gang members actually committed crimes was far more probative on this issue. Nor was this evidence unduly prejudicial. There was no evidence that Valle was charged in connection with any of these incidents. In the two incidents involving guns, the jury was informed that Valle did not shoot at his own house or car. Regarding the participation in the gang initiation, Rico's counsel denigrated its significance, pointing out that Officer McKinley conceded that it was a ceremony, and thus "a ritual just like other groups, other organizations have ceremonies and rituals. It's part of the process. You know, fraternities, hazing, whatever the ceremony is, whatever the ritual is, it's a rite of passage."
Relying on People v. Cardenas (1982) 31 Cal.3d 897 (Cardenas) and People v. Maestas (1993) 20 Cal.App.4th 1482 (Maestas),defendants argue that "evidence of gang violence should be excluded because its inherent prejudicial effect outweighs any relevance it has." In Cardenas, evidence that the defendant and defense witnesses were members of the same gang was introduced to challenge their credibility. (Cardenas, at pp. 902-903.) In Maestas, evidence that the defendant and his codefendant were member of the same gang was introduced for the same purpose. (Maestas, at pp. 1495-1496.) However, Cardenas and Maestas are not on point. In those cases, the defendants were not charged with either a substantive gang offense or gang enhancement allegations.
In sum, whether Valle was an active gang member and whether he had knowledge that gang members engaged in a pattern of criminal gang activity were contested issues at trial. Thus, the trial court did not abuse its discretion by concluding that the probative value of the challenged evidence outweighed its prejudicial effect.
E. Sufficiency of Evidence
Defendants next contend that there was insufficient evidence to support their convictions for robbery and participation in a criminal street gang. They also challenge the sufficiency of the evidence to support the gang enhancement findings.
1. Standard of Review
In reviewing a claim of insufficient evidence, this court " ' " '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. Halvorsen (2007) 42 Cal.4th 379, 419.) The standard is the same under the state and federal due process clauses. (People v. Berryman (1993) 6 Cal.4th 1048, 1082-1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) " 'We presume " 'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." [Citation.]' (People v. Prince (2007) 40 Cal.4th 1179, 1251.)" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) The same standard applies to our review of challenges to the sufficiency of the evidence to support an enhancement. (People v. Wilson (2008) 44 Cal.4th 758, 806 (Wilson).)
2. Robbery
Defendants contend that there was insufficient evidence to support the robbery conviction as charged in count 4.
Here, the gunman put a gun to Juan's head and told him to drive. Juan, Salvador, and Miguel were then told to hand over their money or they would be killed. Miguel placed his wallet under the front passenger seat. After the robbers ordered Juan, Salvador, and Miguel out of the car, they drove away. When the police eventually seized the car, Miguel's wallet was still under the front passenger seat.
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) Defendants argue that since there was no evidence that they knew the wallet was under the passenger seat, they never "accomplished a taking of property by force or fear."
Defendants' argument assumes that they did not realize the location of Miguel's wallet. However, this court must presume the existence of every fact the jury could have reasonably drawn from the evidence. (Wilson, supra, 44 Cal.4th at p. 806.) Here, the jury could have reasonably deduced from the evidence a contrary finding, that is, that the two robbers in the back seat were aware that Miguel had placed his wallet under the seat, and that they did not need to take immediate possession of it because they ordered the victims out of the car and drove away in the car with its contents. Thus, there was substantial evidence that defendants took Miguel's wallet by means of force or fear.
Defendants' reliance on Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821 is misplaced. Rodriguez held that there was insufficient evidence to hold the petitioner to answer for robbery. (Id. at p. 827.) In that case, the petitioner forced the victim into his car, drove her to a baseball field, and forced her out of the car. (Id. at pp. 823-824.) She left her purse in the car. (Ibid.)After raping her, the petitioner returned to his car and drove away. (Ibid.)At issue in Rodriguez was whether there was evidence of an intent to steal the purse. Rodriguez noted: "[W]e are struck by the absence of evidence concerning petitioner's awareness of the purse. Had the testimony revealed that petitioner showed an interest in the purse or that the victim brought it to his attention, the prosecutor could have argued for an inference that one of petitioner's intentions when he forced the victim from the car was to separate her from her purse. The inference would have been weak, in light of evidence that his dominant concern was for sexual gratification, but it would have been available." (Id. at p. 827.) In contrast to Rodriguez, here, when defendants ordered Miguel at gunpoint to give them his money they clearly had the intent to steal from him.
3. Offenses Were Committed for the Benefit of or in Association with a Criminal Street Gang
Defendants also challenge the sufficiency of the evidence to support the jury's findings that the offenses were committed for the benefit of, or in association with, a criminal street gang under section 186.22, subdivision (b). These enhancements were alleged in counts 1 through 12, and 14. Defendants also contend that the evidence was insufficient to establish that defendants actively participated in a criminal street gang pursuant to section 186.22, subdivision (a) in count 16.
Section 186.22, subdivision (b)(1) provides an enhancement for an individual convicted of a felony "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." Section 186.22, subdivision (a) provides a substantive offense for an individual who actively participates in a criminal street gang, and who willfully "promotes, furthers, or assists" in any form of "criminal conduct by members of that gang . . . ."
Here, defendants, who were Sureno gang members, committed the charged offenses with two other Sureno gang members in Norteno territory. The manner in which they committed the offenses demonstrated a clear division of labor. Two gang members, one of whom was armed, entered the Honda. When the owner of the Honda tried to call the police, a third gang member grabbed the phone and took it to a SUV that was waiting nearby. All five gang members then left in two vehicles to complete the offenses. Officer McKinley testified that the primary activities of defendants' gang included carjacking, robbery, auto theft, and gun possession. Given the nature of the offenses and the manner in which they were committed, Officer McKinley opined that the charged offenses were committed in association with the Sureno gang. Thus, there was substantial evidence to support the jury's findings that defendants acted in association with a criminal street gang and assisted in criminal conduct by gang members.
Defendants argue, however, that People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa)is controlling. We disagree.
In Ochoa, a lone gang member committed a carjacking. Based on the defendant's tattoos and admissions, the prosecution experts testified that the defendant was a gang member. (Ochoa, supra, 179 Cal.App.4th at pp. 653-654.) These experts also testified that the defendant committed the carjacking for the benefit of the gang, even though they acknowledged that the gang's signature crime was car theft and that car theft was distinct from carjacking. (Id. at pp. 654-656.) Ochoa noted that "[t]here was no evidence that only gang members committed carjacking or that a gang member could not commit a carjacking for personal benefit, rather than for the benefit of the gang." (Id. at p. 662.) Ochoa also focused on the absence of evidence, stating: "Defendant did not call out a gang name, display gang signs, wear gang clothing, or engage in graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw any of defendant's tattoos. There was no evidence the crimes were committed in Moreno Valley 13 gang territory or the territory of its rivals. There was no evidence that the victim of the crimes was a gang member or a Moreno Valley 13 rival. Defendant did not tell anyone, as the defendant in [People v. Ferraez (2003) 112 Cal.App.4th 925, 928], that he had special gang permission to commit the carjacking. [Citation.] Defendant was not accompanied by a fellow gang member." (Id. at p. 662, fn. omitted.) Thus, Ochoa held that there was insufficient evidence to support the gang enhancement findings. Ochoa, however, is readily distinguishable. Here, five gang members committed a complicated crime together in a rival gang's territory.
Defendants also argue that "[i]f expert testimony alone was deemed sufficient, then a court could find that virtually any crime committed by a gang member was committed to benefit his gang, and every time two or more gang members, who happen to be friends, decide to commit a crime it is in 'association with' the gang." This argument was specifically rejected in People v. Morales (2003) 112 Cal.App.4th 1176. "Arguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. Thus, the typical close case is one in which one gang member, acting alone, commits a crime. . . . [I]t is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members." (Id. at p. 1198.)
The other cases upon which defendants rely are distinguishable. In People v. Martinez (2004) 116 Cal.App.4th 753, the defendant challenged the imposition of a gang registration requirement under section 186.30. (Id. at p. 756.) The defendant, who was a gang member, committed an auto burglary with an accomplice who was not a gang member. (Id. at p. 762.) Thus, Martinez held that there was insufficient evidence that the underlying crime was gang-related, though it recognized that "a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related." (Ibid.)In Albarran, supra, 149 Cal.App.4th 214, two males shot guns at a house. There was substantial evidence that the sole defendant was a gang member, but there was no evidence as to the identity of the other individual. (Id. at pp. 217-219.) In In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), the minor was detained and found to be in possession of a concealed knife, methamphetamine, and a red bandana. (Id. at p. 1195.) The minor claimed that the knife was for protection against " 'the Southerners' " because they believed he associated with "northern street gangs." (Id. at p. 1195.) Frank S. held that there was insufficient evidence to support the gang enhancement finding because there was no evidence that the minor was in gang territory, was with other gang members, or "had reason to expect to use the knife in a gang-related offense." (Id. at p. 1199.) In contrast to Martinez, Albarran, and Frank S., the present case involved five gang members who committed the offenses together in a rival gang's territory.
Turning to the specific intent element of section 186.22, subdivision (b), defendants rely on People v. Ramon (2009) 175 Cal.App.4th 843. In Ramon, the defendant was convicted of, among other things, receiving a stolen vehicle and possession of a firearm by an ex-felon. (Id. at p. 846.) Ramon held that evidence that the defendant and his fellow gang member committed the offenses in their gang's territory was insufficient to support the specific intent element of the gang enhancement findings. (Id. at p. 852.) Ramon also noted that its "analysis might be different if the expert's opinion had included 'possessing stolen vehicles' as one of the activities of the gang." (Id. at p. 853.) Unlike in Ramon, here, there was expert testimony that the charged offenses were the primary activities of the gang.
Defendants also rely on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 and Garcia v. Carey (9th Cir. 1995) 395 F.3d 1099, and argue that there was insufficient evidence that "when two or more gang members jointly commit a crime, they must act together to promote the gang's interests." People v. Albillar (2010) 51 Cal.4th 47 rejected this argument, stating: " 'There is no statutory requirement that this "criminal conduct by gang members" be distinct from the charged offense, or that the evidence established specific crimes the defendant intended to assist his fellow gang members in committing.' " (Id. at p. 66.) Under Albillar, there was substantial evidence to support the finding that defendants had the specific intent to commit the charged offenses.
F. Jury Instructions on Conspiracy
Defendants also contend that the trial court erred in instructing the jury that defendants could be found guilty on a conspiracy theory of liability. The trial court instructed the jury that defendants could be found guilty if they actively participated in the crimes and if they aided and abetted in their commission. Over defense objection, the trial court also instructed the jury on a conspiracy theory of liability, and the prosecutor briefly argued this theory.
This court independently reviews the legality of challenged jury instructions. "Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal. As such, it should be examined without deference." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Defendants argue that section 31 sets forth the exclusive theories of criminal liability. Section 31 provides in relevant part: "All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or not being present, have advised and encouraged its commission . . . are principals in any crime so committed." However, the California Supreme Court has endorsed conspiracy as a valid theory of criminal liability over the last century. In In re Hardy (2007) 41 Cal.4th 977 (Hardy),the trial court instructed the jury, as in the present case, that guilt could be predicated on the fact that the petitioner " 'was a coconspirator in the commission of the offenses charged in this case . . . .' " (Id. at pp. 1026-1027, italics omitted.) The jury was also instructed, as in the present case, on the definition of conspiracy, which " 'is an agreement entered into between two or more persons with the specific intent to agree to commit a public offense and with the further specific intent to commit such offense' " followed by an overt act. (Id. at p. 1027.) Hardy recognized that the petitioner could properly be found liable for the charged crime under a conspiracy theory, stating: "One who conspires with others to commit a felony is guilty as a principal. (§ 31) ' "Each member of the conspiracy is liable for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design." (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 93, pp. 310-311; see also People v. Kauffman (1907) 152 Cal. 331, 334, . . .)' (People v. Flores (2005) 129 Cal.App.4th 174, 182 . . . .) Thus, if petitioner conspired with others to kill the victims for financial gain, he is as guilty of their murders as the person who actually stabbed them. (People v. Hardy, supra, 2 Cal.4th at pp. 188-189 . . . .)" (Hardy, at pp. 1025-1026.) Since our high court has recently declared without reservation that section 31 may serve as the basis for criminal liability based on conspiracy, we must reject defendant's claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendants contend that though "cases have accepted that conspiracy is a valid theory of criminal liability and conspirators therefore are principals, no California Supreme Court case has addressed whether this view of the law is viable given the fact that section 31 says that only two groups of defendants - actual perpetrators and aiders and abettors - are principals."
Even assuming defendants' contention has merit, any error was harmless beyond a reasonable doubt. (People v. Chun (2009) 45 Cal.4th 1172, 1203.) As instructed in the present case, an individual "aids and abets a crime if he . . . knows of the perpetrator's unlawful purpose and he . . . specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (See Hardy, supra, 41 Cal.4th at p. 1029.) The jury was also instructed that an individual is criminally responsible as a conspirator when he "intended to agree and did agree" to commit one of the charged offenses with the intent to commit these offense, followed by an overt act to accomplish the agreement. (Id. at p. 1027.) In finding that defendants intended to agree and did agree to commit one of the charged offenses with the intent to commit these offenses, the jury in the present case necessarily found that defendants aided and abetted the offenses. The act of agreement with the intent to commit the offenses would constitute an act to encourage or promote the perpetrator's commission of the offense. Moreover, here, defendants were present and participated in the offenses. Thus, their presence at the scene of the offenses, with the intent that the offenses be committed, after they agreed with other individuals to commit the offenses, constituted evidence beyond a reasonable doubt that defendants aided and abetted the offenses.
G. Motion for New Trial
Defendants argue that the trial court erred in denying Pablo's motion for new trial based on juror misconduct.
Only Pablo's trial counsel communicated with the jury foreperson. When Pablo filed his motion for a new trial, Rico and Valle had already filed notices of appeal and their appeals were pending in this court. Thus, Rico and Valle argue that this court should excuse them for failing to raise the issue of juror misconduct before the trial court. They point out that the purpose of the forfeiture rule would not be served, because Pablo's motion for new trial provided the trial court with the opportunity to correct the error. Given that the trial court denied Pablo's motion for new trial, it would have been futile for Rico and Valle to bring a motion on the same grounds. Accordingly, we will consider their arguments on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237-238.)
On February 23, 2010, the day before sentencing, Pablo's trial counsel filed a motion for new trial in which he alleged juror misconduct and requested an evidentiary hearing and juror identification information. In his declaration in support of the motion, counsel stated that he had received two e-mails from the jury foreperson in November and December 2009. These e-mails stated that "during a break in the trial the juror went to the bathroom and while there the juror found a woman crying uncontrollably. The juror tried to console the woman by putting her arm around the woman. The juror told the foreperson that the woman communicated information about her son who was a defendant in the same trial with Sergio Pablo. . . . [¶] . . . The woman was defendant Jorge Rico's mother. Rico's mother communicated to the juror that Rico had spent the last 10 years in jail and this was his last chance. The foreperson indicated that the jury was aware that defendant Rico has strikes because the strike prior had been mistakenly submitted to the jury during the trial. The fact that the prior was for a deadly weapon charge hardened the jury against all the defendants according to the foreperson's email."
At the hearing on the motion for new trial, defense counsel requested an evidentiary hearing and permission to contact the juror. The prosecutor responded that the request for an evidentiary hearing must "comply with [Code of Civil Procedure section] 237, and there's got to be prima facie evidence that it will be somehow important to a new trial. And I think based on the declarations [sic] we have, none of which are in affidavit form, all it basically says is that some information about a codefendant may have come into the jury. That information was also admitted at trial, basically. So I don't think there's anything alleged, even in the declaration by [defense counsel], that would give rise to a 237 showing to get the information of the juror." Defense counsel stated: "All I was trying to do at that point was to get to a point where I would have permission to contact her and go forward from there. [¶] The contact I have had was from the foreperson who related what happened." The trial court observed: "Frankly, based on what I've been provided, the Court doesn't think there's a reasonable basis to invade the privacy of a juror. Given the overwhelming nature of the evidence in this case, I can't imagine that even what is alleged to have occurred would have changed the outcome." The prosecutor then stated: "And just for the record, that evidence was basically put in through the gang expert in terms of contact of the codefendant Rico." The trial court agreed and denied the motion.
A criminal defendant has a constitutional right to trial by impartial and unbiased jurors. (Cal. Const., art. I, § 16.) A juror's "inadvertent receipt of information outside the court proceedings is considered 'misconduct' and creates a presumption of prejudice which, if not rebutted, requires a new trial. [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 994.) "Although inadvertent exposure to out-of-court information is not blameworthy conduct, as might be suggested by the term 'misconduct,' it nevertheless gives rise to a presumption of prejudice, because it poses the risk that one or more jurors may be influenced by material that the defendant has had no opportunity to confront, cross-examine, or rebut." (People v. Nesler (1997) 16 Cal.4th 561, 579 (Nesler).)
When a defendant challenges on appeal a trial court's denial of his motion for a new trial on grounds of juror misconduct, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence"; the question of "[w]hether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination." (Nesler, supra, 16 Cal.4th at p. 582.) When juror misconduct has occurred, there is a rebuttable presumption that it is prejudicial. (People v. Holloway (1990) 50 Cal.3d 1098, 1108-1109, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.).)
In re Carpenter (1995) 9 Cal.4th 634 (Carpenter) set forth a two-part test to evaluate claims of juror misconduct. "[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test. [¶] The first of these tests is analogous to the general standard for harmless error analysis under California law. Under this standard, a finding of 'inherently' likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment. Application of this 'inherent prejudice' test obviously depends upon a review of the trial record to determine the prejudicial effect of the extraneous information. [¶] . . . [However,] if it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict. [Citation.] A biased adjudicator is one of the few 'structural defects in the constitution of the trial mechanism, which defy analysis by "harmless-error" standards.' [Citations.] Thus, even if the extraneous information was not so prejudicial, in and of itself, as to cause "inherent" bias under the first test, the totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose. Under this second, or 'circumstantial,' test, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portions of the entire record, including the trial record, must be considered. 'The presumption of prejudice may be rebutted, inter alia, by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.' [Citation.] [¶] In an extraneous-information case, the 'entire record' logically bearing on a circumstantial finding of likely bias includes the nature of the juror's conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant. For example, the stronger the evidence, the less likely it is that the extraneous information itself influenced the verdict. An example is provided in Hasson v. Ford Motor Co. [(1982)] 32 Cal.3d [388,] 417, where we found the presumption of prejudice had been rebutted, in part because '[t]here was overwhelming proof in support of the verdict." (Id. at pp. 653-654; accord Nesler, supra, 16 Cal.4th at pp. 578-579.)
Here, the juror committed misconduct when she consoled the woman crying in the restroom, who told her that she was Rico's mother, that Rico had spent the last 10 years in jail, and that this was his "last chance." However, under either test, there was no substantial likelihood of prejudice to defendants. Viewed objectively, the information was not "inherently and substantially likely to have influenced the juror." (Carpenter, supra, 9 Cal.4th at p. 653.) Officer McKinley testified that Rico had been involved in 1998 in a "violent offense" in which Sureno gang slogans were yelled, and that he was then incarcerated until December 2006. The jury was also informed that Rico had previously been convicted of a felony listed in section 12021, subdivision (e). Thus, the jury learned about the "extraneous" material when it was properly admitted into evidence. The jury was also instructed that it should base its decision "only on the evidence that ha[d] been presented to [it] in this trial." For the same reasons, it was not "substantially likely that a juror [was] actually biased" by this information. (Carpenter, at p. 654.)
Defendants argue, however, that when the woman told the juror that it was Rico's "last chance," she effectively communicated that she expected him to be convicted. Since the evidence against defendants was overwhelming, there could have been no substantial likelihood of prejudice to defendants based on her belief that he would be convicted. Moreover, in our view, her crying and reference to his "last chance" was an appeal for sympathy, and the jury was instructed that it could not "let . . . sympathy . . . influence [its] decision." Thus, this reference cannot be deemed prejudicial. Accordingly, the trial court properly denied the motion for new trial on this ground.
Defendants next contend that the jury's receipt of information about Rico's prior strike conviction constituted juror misconduct and a presumption of prejudice.
This issue was considered in People v. Gamache (2010) 48 Cal.4th 347 (Gamache)in which court personnel provided the jury with a video tape that had never been entered into evidence. (Id. at p. 396.) Gamache first rejected the defendant's claim of structural error, stating: "Manifestly, the error here was trial error. The jury inadvertently had access to never-admitted evidence. This situation is no different than if the same evidence had been proffered at trial and a valid objection to its admittance was erroneously overruled. (People v. Cooper (1991) 53 Cal.3d 771, 836 ['The situation [where a jury innocently considers evidence it was inadvertently given] is the same as any in which the court erroneously admits evidence.'].) We meaningfully may ask whether, in light of all the other evidence properly admitted, the verdict this jury reached would have been the same absent exposure to the December 4 videotape." (Gamache, at pp. 396-397.) Gamache also rejected the defendant's argument of juror misconduct, reasoning: "We have consistently pardoned jurors for considering extrinsic evidence that finds its way into the jury room through party or court error. In People v. Cooper, supra, 53 Cal.3d 771, a transcript never intended for the jury's eyes was inadvertently marked as an exhibit, admitted, and sent to the jury room. The jury's consideration of the exhibit was only ordinary error: 'When, as in this case, a jury innocently considers evidence it was inadvertently given, there is no misconduct.' (Id. at p. 836 . . . . [¶] In contrast, we have found juror misconduct where a juror actively or passively obtains information about a case from outside sources. (E.g., . . . People v. Nesler, supra, 16 Cal.4th at pp. 579-580 [overhearing information about the case in a bar and revealing it to fellow jurors].)" (Gamache, at pp. 397-398.)
Though the jury might have committed misconduct by failing to inform the trial court that Rico's prior strike conviction had been submitted to the jury, defendants presented no evidence that the jury was aware during deliberations that the information was improperly before them. As in Gamache, that the information was provided to the jurors suggested that "it was something they were supposed to have . . . ." (Gamache, supra, 48 Cal.4th at p. 399.)
Thus, we turn to the issue of prejudice. Even if we assume that there was juror misconduct, there was no substantial likelihood of juror bias. The jury was aware that Rico had been convicted of a felony and had been incarcerated for several years for this offense. That the jury improperly learned that Rico's prior conviction involved firearm use was not unduly inflammatory given the evidence of firearm use by Rico's fellow gang members, and that the present case did not involve the firing of a firearm. Thus, viewed objectively, the information was not "inherently and substantially likely to have influenced the juror." (Carpenter, supra, 9 Cal.4th at p. 653.) We next examine the entire record to determine whether there was a substantial likelihood that a juror was actually biased. (Id. at p. 654.) The evidence of Rico's tattoos, jail housing with Surenos, and photograph of him displaying gang signs established that Rico was an active gang member. The evidence also established that Rico was a member of a gang whose primary activities included offenses involving the use of a firearm. Moreover, the jury was instructed that it "must use only the evidence that was presented in this courtroom," that Rico's prior felony conviction was admitted solely to prove the section 12021 charge in count 15, and that it should "not consider this fact for any other purpose. Do not speculate or discuss the nature of the conviction." Based on this record, it was not substantially likely that a juror was actually biased by learning that Rico's prior conviction involved a deadly weapon.
Defendants also argue that the trial court violated their federal constitutional rights when it denied their motion for a new trial on the ground of juror misconduct. A criminal defendant is entitled to an impartial jury in a state court under the United States Constitution. (U.S. Const., 6th and 14th Amends.) When the jury receives improper extraneous information, a criminal defendant "is entitled to a new trial if there is a reasonable possibility that the communication . . . could have affected the verdict." (United States v. Keating (1998) 147 F.3d 895, 901.) An appellate court's "inquiry is objective rather than subjective" and it "need not ascertain whether the extrinsic evidence actually influenced any specific juror. [Citation.] The government has the burden of showing beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict. [Citation.]" (Id. at pp. 901-902, italics added.) As previously discussed, there is no reasonable possibility that the information that Rico had previously served a prison term and that his prior strike conviction involved a deadly weapon could have contributed to the verdict.
H. Request for Contact Information
Defendants contend that the trial court abused its discretion when it denied the request for contact information relating to the juror who had conversed with Rico's mother and conveyed her remarks to another juror.
When a defendant petitions the court for the release of a juror's personal identifying information, "[t]he petition shall be supported by a declaration that includes facts sufficient to establish good cause . . . . The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure." (Code Civ. Proc, § 237, subd. (b).) "Denial of a petition filed pursuant to Code of Civil Procedure section 237 is reviewed under the deferential abuse of discretion standard." (People v. Carrasco (2008) 163 Cal.App.4th 978, 991 (Carrasco).)
Relying on Carrasco, supra, 163 Cal.App.4th at page 990, the Attorney General argues that the test of People v. Rhodes (1989) 212 Cal.App.3d 541 survived the enactment of the code sections governing the release of juror identifying information. She further argues that defendants failed to meet one of the requirements under Rhodes, that is, whether "diligent efforts were made to contact the juror through other means." (Id. at p. 545.) First, the plain language of Code of Civil Procedure section 237 does not include this requirement. Second, the issue was not considered in Carrasco, because in that case the parties were aware of the juror's doubts about the verdict before the jury was dismissed, and thus the juror was questioned by the trial court in the parties' presence. (Carrasco, supra, 163 Cal.App.4th at pp. 986-989.) Thus, Carrasco does not support the Attorney General's position. The Attorney General's reliance on People v. Jones (1998) 17 Cal.4th 279 (Jones)is also misplaced. In Jones, the California Supreme Court stated that Code of Civil Procedure section 237 was inapplicable because the verdict was returned before the statute was enacted. (Jones, at p. 317.)
However, trial counsel's declaration did not show that further investigation was required for the trial court to rule on the motion. The trial court assumed that there was juror misconduct when the juror heard that Rico had spent the last 10 years in jail and communicated that information to the foreperson, and concluded that it was not "a reasonable basis to invade the privacy of a juror." Thus, after weighing the competing interests, the trial court did not abuse its discretion in denying the request for juror contact information.
The trial court did err by failing to set forth in a minute order "the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure." (Code Civ. Proc, § 237, subd. (b).) However, given its statements on the record, the error was harmless.
I. Sentencing
1. Count 16
Defendants contend that section 654 prohibits multiple punishment for both the substantive gang offense (count 16) and the underlying criminal offenses.
The California Supreme Court is currently considering how section 654 applies when a defendant is convicted of both the substantive gang offense and the underlying offenses. (People v. Mesa (2010) 186 Cal.App.4th 773 , review granted Oct. 27, 2010, S185688.)
Section 654, subdivision (a) states in relevant part that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789.) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished . . . not for more than one [of the offenses].' [Citations.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a defendant held multiple criminal objectives is a factual issue and will be upheld on appeal if it is supported by substantial evidence. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.)
People v. Sanchez (2009) 179 Cal.App.4th 1297 held that multiple punishment for both the underlying offenses and the substantive gang offense (§ 186.22, subd. (a) was barred by section 654. However, In In re Jose P. (2003) 106 Cal.App.4th 458 (Jose P.), this court held that the intent and objective in committing the underlying offense was separate and distinct from the intent and objective in committing the substantive gang offense. Jose P. reasoned that "[e]ven if [the defendant's] criminal liability for the gang offense depended upon his participation in the robbery, the record supports a finding that he harbored the separate intent and objective to participate in the gang. [¶] His intent and objective in committing the robbery was to take the property located in the home. Application of the enhancement does not alter the fact that he must also have had the intent to take the property. While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery." (Jose P., at p. 471, italics in original.) Similarly, here, defendants had separate intents when they committed the offenses of kidnapping for carjacking, kidnapping for robbery, carjacking, kidnapping, or robbery than they did when they had the separate intent and objective to participate in a criminal street gang. Moreover, the substantive gang offense was based on any of the offenses of kidnapping for carjacking, kidnapping for robbery, carjacking, kidnapping, or robbery. Thus, the trial court could properly have found that defendants committed separate acts.
2. Section 12022.53, subdivision (b)
Rico and Pablo argue, and the Attorney General concedes, that they were improperly sentenced under both section 186.22, subdivision (b)(5) and section 12022.53, subdivisions (b) and (e). Thus, the issue before us is the appropriate remedy.
The trial court sentenced Rico and Pablo to a term of 15 years to life pursuant to section 186.22, subdivision (b)(5) for the kidnapping for robbery conviction (§ 209, subd. (b)) in count 1. Rico's term was doubled to thirty years to life pursuant to section 1170.12. The trial court also imposed an additional consecutive sentence of 10 years on count 1 for the section 12022.53 enhancement. These same sentences were imposed as to counts 5 and 9 and ordered to run concurrently with count 1, and as to counts 2, 6, and 10 and stayed pursuant to section 654.
Section 1170.12, subdivision (c)(1) provides: "If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction."
When the jury finds that a defendant has committed a felony in association with a criminal street gang with the intent to promote the gang, section 186.22, subdivision (b) specifies a range of penalties. Here, the trial court imposed an enhancement pursuant to subdivision (b)(5), which provides that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22, subd. (b)(5).) Kidnapping for robbery is one of these felonies and ordinarily mandates imprisonment for life with a minimum term of "at least seven calendar years." (§§ 209, subd. (b)(1), 3046, subd. (a)(1).)
When the jury finds that a principal in the offense violated section 186.22, subdivision (b) and personally used a firearm, section 12022.53 sets forth the penalties for the firearm use. Personal use of a firearm results in an additional 10-year prison term. (§ 12022.53, subd. (b).) This enhancement applies to a defendant who did not personally use a firearm during a gang-related offense when another principal did so. (§ 12022.53, subd. (e).)
Section 12022.53, subdivision (e)(1) provides: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)."
People v. Brookfield (2009) 47 Cal.4th 583, 590 (Brookfield) held that "there is no imposition of an 'enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to' section 12022.53" when another principal used a firearm in a gang-related crime and the defendant did not. In Brookfield, the trial court sentenced the defendant to life in prison, with a minimum of 15 years (§ 186.22, subd. (b)(4)) and added a 10-year term under section 12022.53, subdivisions (b) and (e). (Brookfield, at p. 587.) In determining the appropriate remedy, Brookfield examined the legislative purpose of section 12022.53 and held that "[i]n choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53's subdivision (j), choose the provision that will result in a greater sentence." (Brookfield, at p. 596.) Accordingly, Brookfield concluded that "the greater penalty would be the life term under the alternate penalty provision in section 186.22(b)(4), not the 10-year sentence enhancement provided for in subdivisions (b) and (e)(1) of section 12022.53." (Brookfield, at p. 596.)
In People v. Gonzalez (2010) 180 Cal.App.4th 1420, the trial court sentenced one of the defendants to life in prison with a minimum parole eligibility of 15 years pursuant to section 186.22, subdivision (b)(5). (People v. Gonzalez, at p. 1423.) The trial court also imposed an additional term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1), and ordered it to run consecutively to the first life term. (People v. Gonzalez, at p. 1423.) Gonzalez concluded that "the trial court erred in imposing the gang statutes minimum parole eligibility period in addition to the 25-year gun enhancement. Given the inapplicability of the 15-year eligibility period, the customary parole eligibility period of seven years for each of Ortiz's consecutive life sentences applies under section 3046. (§ 3046, subds. (a)(1), (b).)" (People v. Gonzalez, at p. 1427.)
This court may correct an unauthorized sentence on appeal even if there was no objection in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 854.) Here, if Pablo is sentenced pursuant to the section 12022.53 rather than section 186.22, he will receive a greater term for count 1. He would first serve the determinate term of 10 years for the firearm enhancement (§669). He would then begin serving the indeterminate term for count 1, kidnapping for robbery. Pablo would not be eligible for parole until he had served at least seven years of that indeterminate term (§ 3046, subd. (a)(1)). This 17 years to life sentence would be greater than the 15 years to life sentence imposed under section 186.22. The same is not true for Rico. If the section 186.22 sentence is stricken, Rico will serve the determinate term of 10 years for the firearm enhancement (§ 669). He would then begin serving the indeterminate term for the kidnapping for robbery. He would not be eligible for parole for at least 14 years because his sentence would be doubled under section 1170.12, thus resulting in a total term of 24 years to life on count 1. However, if the firearm enhancement is stricken, Rico would receive a 15 years to life sentence which would then be doubled pursuant to section 1170.12 for a total of 30 years to life as to count 1. Thus, Rico would serve a greater term if the firearm enhancement were stricken. Accordingly, we will modify the judgment as to both Pablo and Rico.
3. Credits
Pablo contends, and the Attorney General concedes, that the trial court should have awarded him 895, not 894, days of custody credit for the period from the day of his arrest on September 14, 2007 to the day of sentencing on February 24, 2010.
Pablo also contends, and the Attorney General concedes, that the trial court erred by failing to award him conduct credits of 134 days. (Cf., § 2933.1; People v. Philpot (2004) 122 Cal.App.4th 893, 908; People v. Brewer (2011) 192 Cal.App.4th 457, 460-462.)
The Attorney General also has no objection to an amendment of the abstract of judgment to reflect that Pablo was convicted of a violation of section 209.5, subdivision (a) in counts 2, 6, and 10.
III. Disposition
Pablo's sentence in count 1, kidnapping for robbery, is stricken and modified to reflect that he is sentenced to an indeterminate term of life in prison (§ 209, subd. (b)(1)) and a determinate term of 10 years for the firearm enhancement (§ 12022.53, subds. (b), (e).) Rico's sentence in count 1, kidnapping for robbery, is stricken and modified to reflect that he is sentenced to 15 years to life (§ 186.22, subd. (b)(5)), which is doubled under section 1170.12.
The judgment is further modified to reflect 895 days of custody credit and 134 days of conduct credit as to Pablo.
The abstract of judgment is also amended to reflect that Pablo was convicted of a violation of section 209.5, subdivision (a) in counts 2, 6, and 10.
The trial court shall prepare an amended abstract of judgment and forward a certified copy of the abstract to the California Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Lucero, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.