Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County Super. Ct. No. VA 089352. Robert J. Higa, Judge.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant James E. Santana.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Franco.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendants James E. Santana and Edgar Franco timely appealed their convictions. Both defendants were convicted of one count of attempted willful, deliberate and premeditated murder. Santana was also convicted of one count of unlawful firearm activity, and Franco was also convicted on one count of unlawful possession of a firearm by a felon. After a bifurcated trial, the jury found gang allegations to be true. Santana was sentenced to a total of 15 years to life, and Franco was sentenced to a total of 16 years to life. Defendants raise several issues including a claim the court erred in admitting a photograph of them holding weapons not used in the instant crime. We affirm the judgment against Franco and affirm the judgment against Santana as modified.
Defendants’ first trial ended in a mistrial.
Santana filed a notice of joinder in the issues raised by Franco.
FACTUAL BACKGROUND
I. Prosecution Case
At approximately 11:30 p.m., on September 11, 2004, Officer Gilbert Miranda was dispatched to a residential area in the City of Norwalk following a report of an assault with a deadly weapon. The report originated from a 9-1-1 call from Christina Alvarez. During that call, Alvarez said, “we heard shooting and there is someone lying in the street.” When the 9-1-1 operator asked whether she saw the shooting, Alvarez replied, “No we were in the house and we all ran out.”
Alvarez was not identified as the caller until a later date.
When Miranda arrived, he found a Hispanic male (Martin Lozano) lying in the street with a gunshot wound to the back of his head. Lozano was unconscious, and someone appeared to be rendering aid to him. Although Miranda found a bullet fragment near the victim, no expended shell casings were found at the scene. A revolver does not eject shell casings, but a semi-automatic weapon does. Miranda opined it was possible that someone had picked up the ballistic evidence before the police arrived or the casings bounced into a bush or got stuck in the tire of a passing car.
Lozano was transported to the hospital, and Miranda and the other deputies at the scene began knocking on neighboring doors in search of witnesses. Alvarez was not interviewed by any deputies that evening.
Alvarez lived on Leeds Street with her mother, her uncle and six of her children in Neighborhood gang territory. All three of Alvarez’s daughters had dated Neighborhood gang members, including Franco and Santana; one daughter had a child by Santana. Alvarez’s son Cesar had belonged to the Neighborhood gang, but later joined the rival King Kobra gang. Alvarez had been a gang member in her early teens, quit the gang at 16 and stopped participating in gang activities, but never really left the gang lifestyle.
The following Monday, September 13, the case was assigned to Officer Lorena Cardenas. At that time, there were no suspects. Cardenas subsequently received information from someone who had driven the victim to the crime scene that focused her attention on Alvarez’s address. That Saturday, about a week after the shooting, Cardenas went to Alvarez’s home. Prior to making contact with Alvarez, Cardenas conducted a search for any outstanding warrants and found Alvarez had two (contributing to the delinquency of a minor and driving without a license).
Cardenas testified she attempted to get the victim to come to court, but she was unsuccessful; the victim told her he did not remember what had happened.
Cardenas found Alvarez at home and arrested her for the outstanding warrants. Cardenas handcuffed Alvarez and transported her to the Norwalk police station. Cardenas then placed Alvarez in an interview room and said she wanted to speak to her (Alvarez) about the Lozano shooting. According to Cardenas, Alvarez gave her a weird look and began to cry and said, “‘I saw it. I knew who did it.’” Cardenas and Alvarez continued talking for about 30 to 45 minutes, but their conversation was not tape recorded.
Cardenas interviewed Alvarez again two days later, and that interview was tape recorded and presented to the jury. Alvarez could be heard lightly laughing on the tape. During this interview, Alvarez stated on the night of the shooting, she was home with her family when Lozano came to the front door to talk to her son’s friend about obtaining a gun. Alvarez did not want any problems and told her son his friend had to leave. Alvarez then escorted Lozano outside to the front gate and shut the gate. Two men approached Lozano and asked, “‘Hey ese, where you from?’” Alvarez identified the men as defendants Franco and Santana. Lozano continued walking to his car, and the two men ran up behind him and fired multiple shots. Franco and Santana ran away, and Alvarez went inside to call 9-1-1. Alvarez did not identify Franco and Santana because she got nervous and “didn’t want to say.” When Alvarez told her children what she had seen, they told her to keep quiet.
Following her interview with Cardenas, Alvarez moved out of her residence and failed to maintain contact with Cardenas. Alvarez was eventually found and was in custody during the trial.
Search warrants executed on the residences of Franco and Santana yielded no evidence linking either man to the Lozano shooting. Police found gang-related paraphernalia, including a photograph depicting Franco and Santana together, which was admitted as Exhibit 38, but no weapons or ammunition.
At trial, Alvarez testified that early on the day of the shooting, she had seen Lozano walking down the street looking for an address; he approached her house and talked to her daughter Nancy for about 15 minutes. Later that day, Alvarez saw Franco and Santana outside talking to another of her daughters, and later still, Alvarez saw Franco and Santana across the street talking to a woman named Frances.
That evening, Alvarez was in the kitchen washing the dinner dishes while her children and their friends, including Veneno, a member of King Kobra, were in the living room listening to music and talking. At some point, someone knocked on the front door. Cesar, Alvarez’s son, answered the door. Lozano, who was also a King Kobra, was at the door. Lozano said he was looking for Veneno. Cesar returned to his music while Lozano and Veneno stood in the doorway talking. Alvarez could not hear the conversation of Lozano and Veneno, but she heard Cesar say, “‘Yeah, no one has a gun here, Homes.’”
About ten minutes later, Frances entered the house and whispered to Alvarez that Lozano should leave “or they [referring to Franco and Santana] were going to come in the house and handle him.” At that point, Alvarez told Lozano there were too many people in the house and asked him to leave. Lozano was cooperative, said goodbye to Cesar and Veneno and walked outside. Alvarez accompanied Lozano to make sure the front gate latched behind him.
Lozano walked toward a parked car that was occupied by a female. As Alvarez latched the gate, she heard someone say, “‘Where are you from, Ese?’” It was evening, but the streetlights were on, and Alvarez could see Franco and Santana, both holding handguns, approach Lozano from behind. Lozano continued in the direction of the car without responding to the question or even turning around. Franco and Santana followed Lozano for about 25 feet. Lozano had his hand on the car door when Franco and Santana extended their weapons. Alvarez yelled, “‘No.’” Franco and Santana turned and looked at Alvarez, but kept going. Santana was within two feet of Lozano and the tip of Franco’s weapon was about one foot from Lozano’s head when Alvarez saw flashes or sparks and “heard [a] sound like two guns.” Four or five shots were fired in quick succession. Lozano fell to the ground. Franco looked at Lozano and appeared to fire again; he and Santana fled. The female in the car moved to the driver’s seat and sped away.
As soon as Lozano fell, Alvarez yelled into the house for someone to bring her the cordless telephone. At the same time, Ronnie Salas ran up, asked who had been shot and whether Alvarez had seen the shooters; he told Alvarez to call 9-1-l. Alvarez had never seen a shooting before, and she was shocked and scared. Alvarez called 9-l-l, but lied when the operator asked questions about the shooting, e.g., Alvarez said she had been in the house when the shooting occurred and ran outside after hearing the shots. Alvarez told Salas the same lie.
Cardenas testified she did not suggest to Alvarez that the shots were fired by someone inside Alvarez’s house or make any kind of threatening statement to the effect that Alvarez’s children would be taken from her unless she cooperated or promise Alvarez favorable treatment in exchange for her cooperation.
Alvarez admitted to being a regular user of methamphetamine. By the time of the trial, Alvarez had lost custody of her children partly due to her methamphetamine use. On the day of the shooting, Alvarez had used methamphetamine both before and after the incident.
Although the gang enhancements were bifurcated from the main charges, some gang testimony was admitted as relevant during the case-in-chief. Gang expert Michael Ponce de Leon testified the Neighborhood gang was one of the targeted gangs in the Norwalk area. Based on items seized from Franco and Santana, Ponce de Leon concluded they were members of the Neighborhood gang. Hispanic gangs are territorial and use graffiti to mark their territory; cross-outs of gang graffiti indicate an active problem between two gangs. A rival gang member in another gang’s territory would likely be asked where he was from and face violence; if he turned his back, it would be seen as a sign of disrespect.
Two deputy sheriffs testified to prior contacts with Franco and Santana in which each admitted he was a member of the Neighborhood gang. A week after the shooting, one deputy saw King Kobra gang graffiti one block from the scene of the shooting; the next day it was crossed out and the word “‘Neighborhood’” written over it.
II. Defense Case
Alvarez provided the only evidence tying the defendants to the shooting; but she made inconsistent statements. During her interview with Cardenas, Alvarez initially said she was not sure if Santana had fired a gun and the tip of Franco’s gun was touching Lozano’s head. Alvarez also stated she asked Lozano to leave because she overheard him asking her son’s friend for a gun. Alvarez testified Lozano was inside her living room for about ten minutes talking with her son, but she did not recall Lozano asking for a gun; instead, she said someone came into the house and told her to get Lozano out “or they were going to come in the house and handle him.” Alvarez acknowledged she had previously testified she met Lozano at the door and sent him away before he entered the house.
Alvarez’s testimony differed from that of Cardenas in terms of what preceded the taped interview and her statements to police. Alvarez testified that following her arrest, Cardenas told Alvarez the shots came from Alvarez’s house, and if Alvarez did not say anything, Cardenas would issue a bench warrant and have her children taken into custody. Alvarez was afraid her son, a gang member, would be charged with the crime. Alvarez testified Cardenas threatened to arrest Alvarez and charge her with the shooting. It was only after that threat that Alvarez broke down and told Cardenas what she had seen. Alvarez admitted she was trying to please Cardenas and told Cardenas what she thought Cardenas wanted to hear.
Ronnie Salas, the man who rendered aid to Lozano, testified that at the time of the shooting, he had known Alvarez for about six to seven months and had an “on and off” dating relationship with her. On the evening of the shooting, Salas was walking up to Alvarez’s house, when she came running out and said some guy from the King Kobra gang had been shot. When Salas asked Alvarez if she had seen who did it, she responded in the negative, saying she had been inside. Salas looked down the street and saw “something” lying there. Salas walked closer and saw a person lying on his stomach; the person sounded as if he was having trouble breathing. Salas turned the person over and saw blood coming from his head; Salas removed the man’s shoe and tied the man’s sock around his head. Salas recalled someone handed him a phone and briefly speaking to the 9-1-1 operator. Thereafter, Salas went inside the house.
Salas began seeing less of Alvarez because he was trying to use methamphetamine less often and that was all she “was focused on.” Alvarez was not a truthful person and was always “scamming.”
Rita, Christina Alvarez’s mother, testified she was confused as to why she was a witness. When the prosecutor asked whether her daughter had named anyone as the shooters, Rita responded “no” and said “she didn’t give me the names of the guys.” Upon further questioning, Rita agreed her daughter had told her the perpetrators were Santana and some other man. On cross-examination, Rita stated she did not bring up the names of the defendants -- the prosecutor did.
Rebecca, Christina Alvarez’s 17-year-old daughter, testified she was in the house on the night of the shooting. Lozano came and spoke to her brother for several minutes that night. Rebecca heard something about a gun and heard her brother and his friend say “no.” Lozano then left, and Rebecca shut the door after him; her mother did not walk him out the door. Shortly thereafter, Rebecca heard shots and her mother came running from the back of the house and asked the others if they had heard shots. Several minutes later, when they thought it was safe, they all went outside and saw a body lying in the street with Salas rendering aid. On cross-examination, Rebecca admitted she was friends with Santana and Franco.
In rebuttal, Norwalk gang officer Dan Leicht testified he had previously encountered Rebecca numerous times in the company of gang members.
DISCUSSION
I. Admission of a photograph of appellants holding weapons
A. Background
1. First Trial
Detective Cardenas interviewed Alvarez on September 20, 2004. During that interview Cardenas asked Alvarez to describe the weapons Franco and Santana used in the shooting. Alvarez said they were black and “probably” handguns. When asked whether the guns looked like “semi-auto or revolvers,” Alvarez answered, “Like revolvers.”
During the first trial, the prosecutor sought to admit a Polaroid photograph of Franco holding a rifle, Santana holding a semiautomatic handgun, and two other men, one of whom was holding a handgun. The men were also making gang signs with their hands. Defense objected on the ground prior possession of a weapon was inadmissible when that weapon was not used in the charged offense and noted Alvarez had referred to the guns as revolvers.
The prosecutor countered the photo was relevant to show “the defendants know each other.” The prosecutor stated, “The evidence in this case is that revolvers were used, so we’re not going to argue that any of the guns in those pictures were the guns used in the crimes in question.” The court (the Hon. Raul A. Sahagun presiding) stated it had no doubt the photo was probative as to gang membership, but sustained the objection on the grounds the photo constituted impermissible character evidence and prejudicially implied the defendants were “ready to commit violence with guns.” The court ruled it would allow the prosecutor to elicit testimony from an officer that he had seen a photo in which defendants were together, flashing gang signs. Subsequently, the court allowed the prosecutor to use a redacted or cropped version of the photo showing Franco and Santana together from the neck up, with the weapons and other men cut out.
At trial, Alvarez testified she did not know the difference between a revolver and a semi-automatic. Alvarez denied having told Cardenas the guns were revolvers; rather, she said both men used big, black guns.
2. Second Trial
At the second trial, before another judge (the Hon. Robert J. Higa, presiding), the parties reviewed the prior trial exhibits with the court. Judge Higa viewed the uncropped photo (Exh. 3) and asked whether the weapons depicted were involved in the case. Santana’s counsel said, “No,” but the prosecutor responded that although rifles were not used, handguns were and stated, “No gun was ever recovered, so we don’t know what gun was used in the current case.” When Santana’s counsel suggested the caliber of the weapon was known, the prosecutor countered the caliber was not known as no slug was recovered. The court asked if Exhibit 3 was the only photo the prosecutor had of the two together, and the prosecutor said it was. Santana’s counsel explained the first court’s ruling about cropping the photo because the depicted guns were not probative. The court responded it was inclined to admit the uncropped photo.
Defense counsel responded he would like to cite authority holding that admitting weapons not used in the current offense would constitute improper propensity evidence. The court asked for the case citations and indicated it might change its ruling and attempted to clarify whether the instant situation was the same as the cited cases. When the court asked if that was the case here, the prosecutor replied, “As to the rifle, but not as to the pistol.” Defense provided the citations (including People v. Riser (1956) 47 Cal.2d 566 disapproved on other points in People v. Chapman (1959) 52 Cal.2d 95, 98 and People v. Morse (1964) 60 Cal.2d 631, 648-649) and reiterated its position that inclusion of the weapons was overkill and prejudicial.
The court read the cases and heard further argument the next day. The prosecutor took the position that at least one of the guns (the handgun held by Santana) was used in the current offense: “We know a handgun was used in our case. The handgun was never found, so we don’t know what kind of gun it was.” The prosecutor asked the court to distinguish the rifle from the pistol and noted Riser applied to the rifle and not the handgun. Santana’s counsel responded Alvarez knew the difference between a semi-automatic and a revolver, said the weapons she saw were revolvers, the weapon held by Santana looked like a semi-automatic, it was not known when the picture had been taken, and therefore the photo should not be shown to the jury. Citing People v. Cox (2003) 30 Cal.4th 916, the court stated the uncropped photo would be allowed into evidence. Franco’s counsel argued the weapons in the photo were not the revolvers “we know were used in this case.” Defense counsel argued the guns in Cox were admitted on the ground they could have been used in the murders and asked the court to articulate the relevance of the uncropped photo and weigh it against the potential for prejudice under Evidence Code section 352.
The prosecutor explained his theory of admissibility: “They’re saying that clearly it’s undisputed that revolvers were used in this case, but at the first trial, the witness was asked, and it’s in the transcript, whether they were revolvers or semi-autos, and she didn’t know. [¶] So, bottom line, we know that handguns were used, but we don’t know what kind. Therefore, you cannot systematically exclude the weapon in the picture. We don’t know if that was the weapon used or not. We just don’t know.” The court did not alter its ruling.
The next day, Franco’s counsel asked the court to reconsider its ruling, particularly as to the assault rifle. Judge Higa asked the prosecutor to clarify the type of weapons used. The prosecutor stated a handgun was used, but the type of handgun was unknown, and acknowledged the rifle should be excluded. The prosecutor also posited another theory of admissibility, i.e., the entire photo was admissible to show appellants’ gang membership. At that point, Santana’s counsel argued that because no shell casings were found, a semiautomatic weapon was not used, and because Alvarez originally stated the weapons looked like cowboy guns, i.e., revolvers, neither the rifle nor the semiautomatic handgun could be one of the guns used in the instant shooting and all weapons should be edited from the photo. Judge Higa determined gang membership could be established without the rifle and it should be excluded, but a redacted photo showing Santana holding the handgun was relevant and the probative value of the photo outweighed its prejudice effect.
The prosecutor covered the rifle in the photo with two strips of rectangular paper, which highlighted the contours of the rifle. Defense objected stating, “it’s obvious to anyone with half a brain that a couple of strips have been put over a large weapon. No one -- no human being with a brain is going to conclude anything else other than that.” Counsel asked the photo be redacted as it was for the first trial. The court overruled the objection and allowed the photo as redacted.
As redacted, the photo depicts three young males from the waist up -- Santana on the left, Franco in the middle, and a third, unidentified male on the right. All three face the camera and are wearing dark clothing and sunglasses. Santana has a dark handgun in his hands. The unidentified male has a silver handgun in his left hand and is flashing a gang sign with his right hand. Franco’s hands are not visible, two rectangles obscure his chest and left shoulder, the unidentified male’s right shoulder, and the areas between their heads.
The photograph, admitted as Exhibit 38, was used by the prosecutor during his opening statement, while examining witnesses, and during his closing argument. The defense renewed its objection to the photo during trial and requested a limiting instruction, which the court refused, stating that the photo is “offered for all purposes.” After the prosecutor flashed the photo via a power point presentation over two dozen times during his closing argument, writing above the photo and referring to it while identifying both defendants as shooters, the defense moved for a mistrial. The court denied the motion.
B. Admissibility
Appellants contend the court abused its discretion by the admission of Exhibit 38 because the admission violated Evidence Code sections 1101 and 352 and their constitutional rights to due process and a fair trial.
“An appellate court applies the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence, including a ruling on an Evidence Code section 352 objection.” (People v. Cox, supra, 30 Cal.4th at p. 955; see also People v. Coddington (2000) 23 Cal.4th 529, 619 disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [“A trial court exercises a grant of broad discretion in assessing whether the probative value of evidence outweighs its potential for prejudice.].) “‘[T]he term judicial discretion “implies absence of arbitrary determination, capricious disposition or whimsical thinking.”’ ‘[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.”’ (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) In Cox, the court reviewed the admission of gun evidence: “In [Riser], the defendant murdered two people during a robbery. The killing was committed with a Smith and Wesson .38-caliber Special revolver. The gun was never recovered. Riser was found with three holsters, one of which could hold a .38-caliber Smith and Wesson Special revolver. Riser also possessed a Colt .38-caliber revolver, which could not have been the murder weapon. We stated the rule of admissibility as follows: ‘When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant’s possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant’s possession was the murder weapon. When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons.’ Because the murder weapon was known, we ruled that the admission of the Colt .38-caliber revolver was error, but such error was not prejudicial.” (Citations omitted.) (People v. Cox, supra, 30 Cal.4th at pp. 955-956.)
In Cox, one witness testified she saw the defendant use a knife to kill one of the victims, and another witness testified the defendant told her he had stabbed and strangled all three victims. (People v. Cox, supra, 30 Cal.4th at pp. 927, 939.) On appeal, the defendant challenged the trial court’s admission of evidence that police found three handguns during a search of the defendant’s vehicle. (Id., at pp. 955-956.) The California Supreme Court found no error reasoning that “[a]lthough the prosecutor argued that the evidence pointed to a stabbing, such argument did not preclude the reasonable probability that one or all three of the victims had been shot,” such that the guns were relevant either “as possible murder weapons” or they were used to coerce victims into defendant’s car and because it was “not known how the three victims were killed.” (Id., at pp. 956-957.)
It is sufficient if the weapon “might have been” used, even if the evidence does not establish any other link between the weapon and the charged crime. (People v. Carpenter (1999) 21 Cal.4th 1016, 1052.) During the discussions on the admissibility of Exhibit 38, the prosecutor argued the gun held by Santana might have been used in the shooting. (Compare People v. Barnwell (2007) 41 Cal.4th 1038, 1055-1056 [Officer Flores testified that a year before the murder, the defendant possessed a handgun similar to the murder weapon. The court concluded: “Because the prosecution did not claim the weapon found by Officer Flores was the murder weapon, its admission was error.”].)
Appellants assert the photo should not have been admitted because there was no evidence linking the guns in the photo to the instant crime. Appellants note that at the first trial, the deputy district attorney disavowed the guns depicted in the photo could have been used, the witness testified the guns were revolvers, and no casings were found at the crime scene. Appellants also complain that even though the rifle held by Franco was covered up, it was obvious to anyone that he was holding a rifle. Appellants reason the fact that 10- to 12-inch black guns were used, no casings were found at the scene and Alvarez’s varying statements suggests that the guns were revolvers.
In the case at bar, the specific type of guns used to shoot at Lozano was not known. Although Alvarez initially told police the guns were black and looked like revolvers and she had seen guns fired before, at trial, she testified she did now know the difference between revolvers and semi-automatic guns. Alvarez testified she did not know much about guns in terms of caliber and model, but she did know the difference between a shotgun and a handgun and Franco and Santana each had a handgun. Thus, as the evidence did not establish that revolvers were used, based on Alvarez’s testimony, there was a permissible inference that the black gun held by Santana in the photo might have been used in the shooting. Accordingly, there was no violation of due process. (See Windham v. Merkle (9th Cir. 1998) 163 F.3d 1092, 1103 [Due process is violated only when “‘there are no permissible inferences the jury may draw from the evidence.’” (Original italics.)].)
Appellants argue the photo was not admissible because there was no evidence when it was taken meaning there was no temporal connection between the gun and the crime. The photo shows young men so it had to have been taken around the same time as the instant shooting. The case references to finding gun evidence after a crime were dicta. Accordingly, any conflicts in Alvarez’s testimony regarding whether the gun depicted in the photo might have been used as well as the weight to give her testimony or the timing of the photo were matters for the jury to determine. (See People v. Lindsay (1964) 227 Cal.App.2d 482, 501.)
Appellants further argue that even if the photo was admissible, it should have been excluded under Evidence Code section 352 as there was no ground to admit the silver gun and the rifle and the admission was highly prejudicial because of the visceral impact/highly inflammatory nature of the guns depicted therein. “The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias.” (Internal quotation marks omitted.) (People v. Garceau (1993) 6 Cal.4th 140, 178 disapproved on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) The court found the probative value of the photo outweighed the prejudicial impact. The photo was no more likely to evoke an emotional bias than appellants’ gang membership and the nature of the shooting.
Furthermore, although the rifle and third person with a silver gun could have been cropped out of the photo, the failure to do so was not prejudicial as the portion showing Santana holding a handgun which might have been used in the shooting of Lozano was admissible. (See People v. Riser, supra, 47 Cal.2d at p. 577.) Accordingly, there was no abuse in admitting the photo.
Appellants further contend that Judge Higa violated their right to due process by arbitrarily reversing the ruling of Judge Sahagun regarding use of the photo; appellants assert the judge did so without careful consideration and ignored the decision of the first judge. In part, appellants rely on People v. Riva (2003) 112 Cal.App.4th 981 and the principle of judicial estoppel.
In Riva, the court concluded one judge had the authority to reconsider and modify an earlier ruling on a Miranda motion by another judge, reasoning: “Our Supreme Court has treated motions to suppress under Miranda as in limine motions which, if granted, are subject to review if the People again offer the evidence at the trial. We conclude, therefore, pretrial rulings on the admissibility of evidence, like rulings on pleadings, should be reviewable by another judge following a mistrial because they are intermediate, interlocutory rulings subject to revision even after the commencement of trial. . . . [¶] This authority, however, is not unlimited. It must be exercised in conformity with the defendant’s right to due process of law or, as one court put it, ‘with due consideration,’ which means the defendant must be given notice and an opportunity to be heard, and the revised ruling cannot be arbitrary or made without reason.” (Fns. & italics omitted.) (People v. Riva, supra, 112 Cal.App.4th at p. 992.)
When Judge Higa ruled the photo was admissible, he was well aware of the earlier ruling by Judge Sahagun, circumstances had changed as Alvarez had testified at the first trial she was not sure the guns were revolvers so the prosecutor now argued the semi-automatic gun depicted in the photo might have been used. Appellants had ample notice and the opportunity to be heard on the issue as the parties held extensive discussions about the admissibility of the photo. Accordingly, as the court did not rule without reason, there was no violation of due process. In addition, judicial estoppel did not apply as the concession at the first trial about the guns in the photo not being used was basically the result of ignorance or a mistake as the prosecutor thought revolvers were used. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
The fact the prosecutor did not try to relitigate the admissibility of the photo after Alvarez’s testimony at the first trial is irrelevant.
II. Threats
A. Threat Evidence
At the first trial, Alvarez testified on direct examination that she did not contact the police after the shooting “[b]ecause [she] started getting phone calls telling [her] to leave the area and stuff.” On cross-examination, defense counsel asked Alvarez when the threatening calls occurred, and she responded she had received four calls after she spoke with Detective Cardenas. On redirect, the prosecutor asked how many different people had made the calls, and Alvarez said there were two -- one was a friend and the other was a person whose voice she did not recognize.
At the second trial, the prosecutor asked Alvarez whether she had received any threatening phone calls “at the house.” Defense counsel objected “as to [the] nature of the call and, also, as to speculation as to who might have made the call.” The court overruled the objection noting the prosecutor had not asked who made the call, just whether a call had been made. The prosecutor again asked Alvarez whether she had received any calls on her landline at her house that caused her to be concerned for her safety or that of her family. Alvarez said she had received two or three such calls after the shooting but before she spoke to Cardenas.
Alvarez said she recognized the callers’ voices as belonging to people connected to the Neighborhood gang. When the prosecutor asked what the callers said, defense asked for an admonition, and the court told the jury that the content of the phone calls was not offered for the truth, but to show how the witness was affected. Defense then asked the court to admonish the jury “that there’s no known allegations or beliefs that either of the defendants were responsible for any of these phone calls.” The following colloquy then occurred between the prosecutor and Alvarez:
Q . . . Was it Mr. Franco calling you at all?
A Not on my mom’s phone.
Q On some other phone?
A Yes.
Q Which phone was this?
A The people that lived across the street from us.
Q Your neighbor?
A Across the street.
Q Okay. [¶] That was Mr. Franco
A Yes.
Q -- called you?
A Yes.
Q And said what?
A That -- for me not to say anything, for me to leave my mom’s house, that they would help me be out in the streets and stuff until the case was over.
Q And what about Mr. Santana? Did he ever call you?
A No, he didn’t.
At that point, the questioning returned to the calls made directly to Alvarez from people connected to the Neighborhood gang. Alvarez testified that one of the callers was a friend of her daughter’s named Orlando. Orlando told Alvarez to “be careful what [she] said” if the police stopped her. Another one of the callers told Alvarez she should leave her mother’s house to be safe from the police. The prosecutor then asked whether “Mr. Franco, this person named Orlando, or the third person” ever told her “what might happen” to her family if she cooperated with the police. Alvarez responded, “Yes. Mr. Franco told me -- he just said, ‘You know what happens to people that snitch.’ That’s what they say, and I said, ‘Yeah, I know. I’m not stupid.’ [¶] I told them I wasn’t going to say anything, and that’s it.”
At first, Alvarez said she did not remember why she failed to testify at the first trial regarding Franco’s calls but later explained that she had forgotten them. Alvarez knew the caller’s voice belonged to Franco:
Q . . . [H]ave you talked to him on the phone before, meaning Mr. Franco, or recognize his voice?
A On the phone at my -- the one across the street? [¶] Yes.
Q You recognize his voice.
A Yes.
Q Meaning -- so you’ve had enough contact with him, either in person or on the phone, to be able to recognize his phone voice?
A Yes. [¶] He called me, like, around four times.
Q Did he ever say, “This is so-and-so”?
A It was him. I recognized his voice.
Q So he called you four times
A Yes.
Q -- after the shooting?
A When they were in custody.
Q Called you from -- after the case was already
A Yes.
Q -- on the way.
A Yes.
Q And the first time you said that he said, “You know what happens to snitches.” [¶] What did he say on all the following phone calls?
A Just for me to keep quiet, for me not to talk, and that he would take the blame if anything came down to it, that he would take the blame for everything, and I would change the subject, because I thought they were recording the calls.
Q But he would take the blame for what? For the shooting or for what happened to you?
A He wouldn’t say that. He would say, “I’ll take the blame for whatever happens.”
Alvarez testified she was afraid of Franco because he belonged to a gang. The prosecutor asked whether she had been threatened in prison, and when Alvarez said, “Yes,” Franco’s counsel objected on hearsay and relevancy grounds and argued the prosecutor was on a fishing expedition and did not know what the witness was going to say. The court sustained the objection.
On cross-examination, Alvarez again testified Franco called via a neighbor across the street, explaining the neighbor brought the phone to her and she spoke to Franco while standing at the gate to her mother’s house. Alvarez also explained she had not testified regarding those phone calls at the first trial because she had forgotten about them. In her mind, Alvarez distinguished the threatening calls made directly to her at her mother’s house from the occasions on which Franco contacted her through her neighbor. Alvarez acknowledged that at the first trial, her only testimony regarding threats concerned the calls made to her mother’s house, none of which were made by Franco or Santana.
On redirect, the prosecutor asked Alvarez to explain why she had come to fear Franco. Alvarez said she knew what could happen. When the prosecutor asked what she meant, Franco’s attorney objected the question called for speculation. The court overruled the objection, and Alvarez proceeded to explain she had received two separate messages on the jail transport bus, including one on the previous day, warning her to “be quiet, don’t say stuff,” and that “it would be better to change what I’m saying.” The messengers did not tell Alvarez the source of the warnings, but she assumed it was Franco and Santana as they were the only defendants against whom she was testifying. The court overruled the hearsay objection and instructed the jury this information was not offered for the truth, but to show Alvarez’s state of mind in testifying.
Thereafter, the prosecutor clarified that on the occasions Alvarez spoke to Franco, her neighbor had brought the phone to her and said Franco wanted to speak to her. Franco never called Alvarez directly at home. These conversations all occurred after Alvarez’s interview with Cardenas. In contrast, the threatening calls from third parties were made to her home and occurred before her interview with the detective. Franco did not sound angry on any of the four occasions when Alvarez spoke to him; he offered to help her relocate, but he did not ask her why she was accusing him of something he had not done, nor did he tell her what to say to police or the judge. Alvarez understood from her own gang experience that testifying against Franco and Santana made her a snitch, and she knew that “bad things” happened to snitches: “[Y]ou get taken out. They shoot you. You get killed. They make you disappear.”
On re-cross, Franco’s counsel once again questioned Alvarez about the threatening phone calls and re-established the calls were made via her neighbor, Franco did not tell her what to say in court, Franco said he would take the blame for what had happened, and she did not mention those calls at the first trial.
On re-cross by Santana’s counsel the following exchange about the first call from Franco occurred:
Q Do you remember the exact words that were said to you allegedly by Mr. Franco?
A Yes, I can remember.
Q What were the exact words that he used?
A He just said, “Hey Christine. How are you doing?” [¶] I said, “Who is this?” [¶] And he said, “It’s me.” [¶] I go, “Who?” [¶] He goes, “Me, Edgar.” [¶] I said, “What’s up.” I told him, “How have you been?” [¶] And he goes, “Hey,” he goes, “I just wanted to tell you don’t go to your mom’s house no more.” He goes, “Get away from your mom’s, and don’t go back. My homeboys are going to help you stay in motels and help you for food, whatever. They are going to help you out.”
Regarding a subsequent phone call, Alvarez testified: “He just said that he knew what happened should have not happened and that he was willing to take the blame, that he didn’t want James [Santana] to go down for this, because of the baby and stuff, that James was too young to go to prison for whatever, and that he would take the blame for it.”
Alvarez agreed with defense counsel’s characterization of the phone calls as “important” and reiterated she had not remembered to mention them before. Alvarez rejected counsel’s assertion that Franco never called her and explained that although she knew jail calls could be recorded, she did know how or even whether the calls were recorded.
With regard to Franco, the jury was instructed pursuant to CALJIC No. 2.06 that if they found he made any attempts to suppress evidence, such as by intimidation of a witness, the jury could consider such an attempt as consciousness of Franco’s guilt.
B. Admissibility
Franco contends the court violated his rights to due process and a fair trial by permitting the prosecutor to elicit unsubstantiated testimony from Alvarez that she had received threats without establishing that he was responsible for, authorized or connected to the threats. The thrust of Franco’s contention is that the threat evidence was improperly used to give a consciousness of guilt instruction in violation of his constitutional rights.
“‘Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible.’” (Citations omitted.) (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368; see also People v. Warren (1988) 45 Cal.3d 471, 481 [“Although evidence that a defendant is threatening witnesses implies a consciousness of guilt and thus is highly prejudicial [it is] admissible only if adequately substantiated.”].) Thus, the evidence of threats by others was admissible as relevant to Alvarez’s credibility.
Franco posits that there was no foundation for Alvarez’s claim that he personally phoned her as she did not mention calls from him at the first trial and, at the second trial, she conceded the calls she mentioned at the first trial were not from him. Franco notes that at the first trial, the court made sure the threat evidence was used for a relevant purpose (i.e., the witness’s state of mind) and instructed the jury the evidence was not connected to him whereas in the second trial, the court allowed Alvarez to speculate the threat (on the prison bus) was from Franco and allowed the prosecutor to combine the threat evidence in his closing argument.
However, Alvarez connected Franco directly to the threats. At the second trial, Alvarez explained why she had not mentioned the calls from Franco at the first trial (she forgot about them but remembered the calls when the prosecutor specifically asked if Franco or Santana had contacted her). Franco also claims the prosecutor lacked a good faith basis to ask if any of the calls were from him because Alvarez did not mention the calls at the first trial. The prosecutor asked if any of the calls were from either appellant after the defense asked the court to instruct the jury the calls were not connected to them. Whether Alvarez’s explanation was credible and whether Franco made the calls were fact questions for the jury to decide. (See People v. Farnam (2002) 28 Cal.4th 107, 164; People v. Pinholster (1992) 1 Cal.4th 865, 945.)
Franco suggests the calls were not threats and did not implicate him in the shooting as he simply said he would take the blame as Santana was young and had a baby. Franco ignores Alvarez’s testimony that he called her four times, told her to leave her mother’s house, said “they” would help her, said “‘“You know what happens to people that snitch,”’” and told her to keep quiet and not talk. A reasonable juror could infer those calls were threats not to talk or else. The testimony about Franco’s calls supported the court’s giving of the consciousness of guilt instruction.
III. Misconduct
A. Background
Appellants assert the following argument constituted misconduct. During his closing argument, the prosecutor used a power point presentation in which he repeatedly displayed Exhibit 38. Appellants argue that despite the fact none of the weapons were tied to the instant offense, the prosecutor used the photo to establish they premeditated the instant shooting. While displaying the photo, the prosecutor stated:
If they do always carry guns, ask yourselves why. They’re not police officers. They’re not members of the military, fighting in Iraq. They are two gangsters in the streets of Norwalk. If they’re carrying guns with them all the time, as they did that night, ask yourself why. Again, either interpretation of the evidence points to a certain level of premeditation as to what they’re going to do with those guns if given the opportunity.
The court overruled the defense objection to that line of questioning. The prosecutor continued to argue premeditation and deliberation. Defense asked the court to place something on the record. At a sidebar, Santana’s counsel stated, “There’s no other way to put this on the record at a later point. I just want to point out for the record that each point being made by the prosecutor, he is showing the photograph that was objected to with regards to both defendants in possession of weapons. He is referring to -- even though there was a pretense of marking out an assault rifle, he is pointing out to both defendants, saying they’re in possession of guns; and again, each point -- which I’ve counted about ten -- he is putting writing over that photograph and presenting it to the jury.”
Franco’s counsel stated: “Briefly, I’m going to be heard, if I may? When [the prosecutor] is done, there’s a motion for mistrial. I wanted to wait until after his argument, even though as we speak the photograph is in front of the jurors, and I think that the gross error, gross prejudice has occurred, but I’ll be heard further so we can finish up this argument.” The court overruled the objection.
The prosecutor finished his argument by stating, “The point I was making before the interruption was that all the evidence here points to clear evidence of premeditation and deliberation. . . . [¶] . . . the only logical conclusion to reach from this evidence is that both defendants are guilty of attempted murder. Not just regular attempted murder, but also deliberate and premeditated murder. And furthermore, both are guilty of illegal gun possession.”
Defense counsels then moved for a mistrial on the basis the prosecutor’s argument violated the rule of Riser as the prosecutor was arguing “these gentlemen are predisposed to use handguns and commit crimes.” The court denied the motions.
B. Misconduct
Appellants contend the prosecutor violated their constitutional rights by committing misconduct during his closing argument by repeatedly displaying the inadmissible and irrelevant photograph (Exh. 38). In addition, Franco contends the prosecutor’s elicitation of improper threat testimony and exploiting it in his closing argument violated his constitutional rights to due process and a fair trial.
Franco claims that when the prosecutor seized upon the opportunity to ask, without any good faith basis, whether any of the threatening calls came from him and then elicited testimony from Alvarez about calls not mentioned at the first trial, that was an improper line of questioning which allowed the prosecutor to tie the damaging and cumulative testimony of anonymous threats to appellants, specifically to himself.
“A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ‘“unfairness as to make the resulting conviction a denial of due process.”’ Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. To preserve a misconduct claim a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the misconduct claim preserved for review.” (Citations omitted.) (People v. Cook (2006) 39 Cal.4th 566, 606.) As appellants’ objections to the use of the photo during argument (and moved for a mistrial) and to the threat evidence at trial were all overruled, they did not forfeit the issue of misconduct. (See People v. Hill (1998) 17 Cal.4th 800, 820-821.)
The prosecutor did not commit misconduct by referring to Exhibit 38 because, as discussed above, the photo had been properly admitted into evidence. (See People v. Coddington, supra, 23 Cal.4th at pp. 632-633; People v. Haskett (1990) 52 Cal.3d 210, 247; see also People v. Carpenter, supra, 21 Cal.4th at p. 1055 [even if a photo is displayed for a lengthy period].) In People v. Visciotti (1992) 2 Cal.4th 1, 82, the court concluded: “The suggestion that argument based on evidence that has been admitted is misconduct would fail even were we to conclude that the admission of the evidence was error. Regardless of whether an appellate court may later conclude that a piece of evidence was erroneously admitted, argument directed to the evidence does not become misconduct by hindsight. Such references may be considered in determining the prejudicial effect of the error in admitting evidence, but are not misconduct.”
We also determined the threat evidence was properly admitted. Moreover, a prosecutor does not commit misconduct by identifying inferences or deductions that reasonably can be drawn from the evidence or repeating testimony presented at trial. (People v. Stanley (2006) 39 Cal.4th 913, 951; see also People v. Hill, supra, 17 Cal.4th at p. 819 [“The argument may be vigorous as long as it amounts to a fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” (Internal quotation marks omitted.)].) Arguing appellants carried guns was a reasonable inference based on Alvarez’s testimony. Appellants’ suggestion the prosecutor’s comments about what happens to snitches was misconduct is without merit as Alvarez testified Franco asked her “‘“You know what happens to people that snitch.”’”
Accordingly, there was no denial of due process or a fundamentally unfair trial or use of a deceptive or reprehensible method.
Finally, as there was no error in admitting the photo or the threat evidence or misconduct during argument, there was no cumulative error.
IV. Gang Enhancement
A. Gang Evidence
During the case-in-chief, Detective Ponce de Leon laid the foundation for his gang expertise. Ponce de Leon testified he had worked with gangs for 11 of his 21 and one-half years as a peace officer. At the time of trial, Ponce de Leon was assigned to the Operation Safe Streets (OSS) Bureau in Norwalk. The OSS is the investigative unit that handles gang cases for all of Los Angeles County. The detective received extensive training prior to becoming a member of OSS. As part of his formal training, Ponce de Leon took gang classes at the sheriff’s academy and attended gang seminars, including the national gang seminar held annually. His field training included talking with gang members during his assignment at the county jail and, later, getting to know gang members while he worked on patrol in Hispanic gang areas. Ponce de Leon had come into contact with about 5,500 gang members during his career and gotten to know many of them on a personal level, i.e., their gang affiliations and whether they had relatives in the gang, their names and monikers, where they lived and with whom they lived, and the schools they attended. Ponce de Leon also knew how they dressed and wore their hair and the meaning of their tattoos. He had been the lead investigator of about 270 gang cases and assisted in thousands of other gang investigations. Ponce de Leon developed such expertise regarding Hispanic gangs that he taught formal gang classes at the academy and informally trained patrol personnel in the field.
Ponce de Leon described the inner workings of Hispanic gangs, e.g., he described the “jumping in” process and explained that a large gang may consist of many smaller cliques, each with its own hierarchy and an older guy in the leadership position. Ponce de Leon discussed the concept of “putting in work” and the importance of cultivating a reputation for violence; the more violent a gang member is, the greater his reputation will be both in the gang and within the community at large. It is important for gang members to intimidate and instill fear in the community so that witnesses are dissuaded from reporting the gang’s illegal activities. The detective explained that gang members commonly commit crimes as a group in order to increase the intimidation factor and to provide psychological support for one another. Unlike a team or fraternity, a gang’s main source of activity is criminal activity. The Neighborhood gang’s territory was in Norwalk; it was one of the gangs he targeted as a member of OSS; the gang had 141 documented members or associates.
During the trial on the gang enhancement, when Ponce de Leon was asked what were the primary activities of the gang, he responded, “[n]arcotics sales, auto theft, assault, robberies” and “[m]urders and attempted murders.” The detective identified two Neighborhood gang cases with which he was personally familiar: a 2003 robbery committed by Neighborhood gang member Manuel Salas and a 2001 murder and attempted murder committed by Rafael Picado. Ponce de Leon was the investigating officer in the Salas case and had testified as the prosecution’s gang expert at Picado’s trial.
When the prosecutor asked Ponce de Leon if he had an opinion of the reason for the attempted murder, after the court overruled an objection based on lack of foundation, he replied, “That it was done for the benefit of the ‘Neighborhood gang.’” Ponce de Leon was asked if the attempted murders “were done with the specific intent to promote, further, or assist in criminal conduct by members of that gang.” The court overruled the defense objection the question was improper. Ponce de Leon replied, “it was done for those reasons.” The detective explained that the attempted murder of an enemy gang member enhanced appellants’ stature within their own gang and showed both gangs “that they were serious; that they meant business; and that they weren’t afraid to use violence against anybody that came into their area and disrespected them.”
B. Primary Activities
One element of the criminal street gang component of a gang enhancement is “that the group has as one of its ‘primary activities’ the commission of one or more specified crimes.” (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) “‘The phrase “primary activities,” as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s “chief” or “principal” occupations. That definition would necessarily exclude the occasional commission of those crimes by the group’s members.’” (Citation omitted.) (Ibid.; see also In re Alexander L. (2007) 149 Cal.App.4th 605, 614, fn. 5 [there must be evidence gang members consistently and repeatedly committed enumerated crimes.])
Appellants contend there was insufficient evidence of the primary activities component. Appellants argue the prosecutor did not prove beyond a reasonable doubt that the primary activities of the Neighborhood gang were the enumerated crimes as he provided neither specific facts nor the basis for his conclusions about primary activities. Appellants assert Ponce de Leon just listed the crimes, and there was no evidence the predicate crimes were gang-related and no evidence how he knew the crimes were the gang’s primary activities. We disagree.
It is well established that expert testimony may be used to prove the primary activities element of a gang enhancement. (People v. Vy, supra, 122 Cal.App.4th at p. 1223; People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.) To qualify as substantial evidence, expert testimony must be based on reliable information. Police officers may base their testimony on conversations with gang members as well as information from colleagues and other law enforcement agencies. (People v. Gardeley (1996) 14 Cal.4th 605, 619-620; see also People v. Olguin, supra, 31 Cal.App.4th 1355, 1370 [“gang experts presented an adequate foundation for their opinions where they based their testimony on personal observations of and discussions with gang members as well as information from other officers and the department files.”]; People v. Martinez, supra, 158 Cal.App.4th at p. 1330 [gang expert’s eight years of dealing with the gang, including investigations and personal conversations with members and review of reports sufficed to establish the foundation for his testimony.].)
Ponce de Leon’s opinion about the primary activities of the Neighborhood gang was not based just on the two predicate offenses (with which he was personally familiar); rather, he gave extensive testimony about the basis for his expertise, describing his 11 years of gang experience and training (attending gang classes and seminars) and the fact he now conducts gang seminars and trains patrol officers as well as his numerous investigations and personal contacts with gang members which suffices to establish the foundation for his testimony. (See People v. Martinez, supra, 158 Cal.App.4th at p. 1330; People v. Duran (2002) 97 Cal.App.4th 1448, 1465.) Thus, Ponce de Leon’s testimony was substantial evidence of the gang’s primary activities.
C. Specific Intent
Appellants contend the court erred by permitting the gang expert to give an opinion on appellants’ guilt, i.e., to testify about their specific intent. “‘“As a general rule, a trial court has wide discretion to admit or exclude expert testimony. An appellate court may not interfere with the exercise of that discretion unless it is clearly abused.”’” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512.) “An expert, however, may not testify that an individual had specific knowledge or possess a specific intent.” (Id., at p. 1513.) In Garcia, the court noted that questioning expert witnesses through the use of hypothetical questions regarding a hypothetical person was not barred. (Ibid.) In the case at bar, Ponce de Leon was not asked a hypothetical question, he was asked directly about appellants’ specific intent in attempting the murder of Lozano; his answer was an improper opinion on the ultimate issue and should have been excluded. (Ibid.)
However, the admission of Ponce de Leon’s improper opinion about specific intent was harmless as there was sufficient evidence from which the jury could infer that intent. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) The trial of the gang enhancement took place after appellants had been found guilty of attempted murder so the only question to be answered was whether appellants had acted for the benefit of the gang. Furthermore, it is proper to elicit expert testimony about the culture and habits of criminal street gangs including, “the primary activities of a specific gang,” “motivation for a particular crime,” and “whether and how a crime was committed to benefit or promote a gang.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.) Appellants asked Lozano “‘Where are you from, Ese,’” when they approached him on the street. The question is a common gang challenge. Ponce de Leon’s other testimony about the importance of intimidation and a reputation for violence in the gang world supported the inference that appellants acted with specific intent to “promote, further, or assist in any criminal conduct by gang members.” (Pen. Code, § 186.22, subd. (b)(1); People v. Margarejo (2008) 162 Cal.App.4th 102, 110.) Thus, imposition of the gang enhancement was supported by substantial evidence.
V. Abstract of Judgment
The court ordered Santana to serve 15 years to life on count 1, plus two concurrent years on count 3. Respondent notes the minute order and the reporter’s transcript reflect the court imposed the mid-term of two years on count 3 on Santana, but the abstract of judgment shows a three year term on count 3. We presume the court’s minute order and oral pronouncement are correct. (See People v. Smith (1983) 33 Cal.3d 596, 599.) Accordingly, the abstract of the judgment should be corrected to reflect a two year term on count 3.
DISPOSITION
The superior court is directed to modify Santana’s abstract of judgment to reflect a two year concurrent term on count 3. The superior court is ordered to prepare and file with the Department of Corrections an amended abstract of judgment for Santana reflecting that change. In all other respects, the judgments are affirmed.
We concur: PERLUSS, P.J., ZELON, J.