People v. Uriostegui

Full title: THE PEOPLE, Plaintiff and Respondent, v. DANIEL URIOSTEGUI, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Dec 20, 2011

No. F060232 (Cal. Ct. App. Dec. 20, 2011)

Opinion

F060232 Merced Sup. Ct. No. CRM005365A

12-20-2011

THE PEOPLE, Plaintiff and Respondent, v. DANIEL URIOSTEGUI, Defendant and Appellant.

Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

Poochigian

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge.

Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

In the early morning hours of June 19, 2009, Merced Police Officer Vance Walker was off duty and driving to the gym when he was confronted by two men. One man walked into the street and stopped in front of Walker's truck, so that Walker had to stop his vehicle. The other man stood on the driver's side of the truck and asked Walker for a cigarette. Walker heard gunshots and realized someone was shooting at his truck from the driver's side, and he accelerated out of the area. One of the gunshots hit the driver's door, just below an open window, but Walker was not injured.

Appellant/defendant Daniel Uriostegui and codefendant Martin Olvera were taken into custody shortly after the shooting. Walker identified defendant as the man who stood in front of his truck, and Olvera as the man who stood on the left side of his vehicle when the shots were fired.

Defendant and Olvera were charged with count I, attempted premeditated murder of Walker (Pen. Code,¹ § § 664/187); count II, discharge of a firearm at an occupied vehicle (§ 246); and count III, participation in a criminal street gang (§ 186.22, subd. (a)). As to counts I and II, it was alleged that the offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)); and defendant had a prior strike conviction (§ 667, subds. (b)-(i)).

1 All further statutory citations are to the Penal Code unless otherwise indicated.

As to count I, it was further alleged that Olvera personally discharged a firearm (§ 12022.53, subd. (c)); and as to defendant, that a principal discharged a firearm during the commission of the offense (§ 12022.53, subds. (c), (e)(1)).

After a lengthy joint jury trial, defendant was convicted as charged in counts I, II, and III, the jury found the special allegations true, and the court found the prior strike conviction true. Defendant was sentenced to the second strike term of 30 years to life for attempted murder.

Codefendant Olvera was convicted of count III, participation in a criminal street gang. However, the jury was unable to reach unanimous verdicts and the court declared mistrials as to count I, attempted murder, and count II, discharge of a firearm at an occupied vehicle.

This appeal only involves defendant. He contends there is insufficient evidence to support his convictions as an aider and abettor for count I, attempted murder, and count II, discharge of a firearm at an occupied vehicle. Defendant further argues the jury was incorrectly instructed pursuant to the "natural and probable consequences" doctrine about his potential culpability as an aider and abettor. Defendant contends the court improperly permitted Walker to testify about his interpretation of defendant's conduct while he stood in front of Walker's truck, and the prosecution's gang expert improperly testified about a hypothetical which was similar to the facts of the instant case. Finally, defendant challenges the calculation of his sentence. We affirm.

FACTS

Around 4:30 a.m. on June 19, 2009, Officer Walker was off duty and following his normal routine of driving to the gym in his truck. He used his regular route and drove on Park Avenue in Merced. His driver's door window was rolled down. It was still dark, and the truck's headlights were on.

As Walker continued on Park Avenue, he approached an alley which crossed the street, but there was no stop sign or crosswalk in the intersection. Walker saw two males walk out of the alley on his left side. The two men were walking together in the alley at a fairly quick pace, and they headed toward Park Avenue.

When the two men reached Park Avenue, they slowed down and one man stopped on the sidewalk, about 20 to 25 feet from the left side of Walker's truck.² Walker later identified this man as codefendant Olvera.

2 At trial, Walker admitted that he made a previous statement that the man on the sidewalk was about 25 to 30 yards from the left side of his truck.

Walker slowed down his truck because he was not sure if the men were going to walk into the street. Olvera remained on the sidewalk but the second man walked into the street in a slower gait. Walker later identified the second man as defendant. Walker testified defendant walked into the street at an angle, and "purposely" stopped in front of the right headlight of his truck.

Walker immediately stopped his truck to avoid hitting defendant. Defendant remained in the street about three feet away from the front right side of his truck. Olvera was still standing on the sidewalk on Walker's left side, and called out to Walker, " 'Hey, do you have a cigarette?' " Walker replied no, that he didn't smoke. Walker testified that Olvera called out to him within two seconds of the time that defendant stopped in front of his truck. Defendant remained in front of Walker's truck during this brief exchange.

Walker testified that immediately after he responded to Olvera, defendant turned "completely back almost 180 degrees," and "over to his right shoulder and made a kind of heads up, kind of a nodding affirmation" to Olvera, who was still standing on the sidewalk, directly across from Walker's open driver's door window. Defendant "turned over his shoulder towards my truck and kind of did the head up ... his eyebrows even kind of raised up like a signal." Defendant did not nod up and down, but "kind of lifted his head up ... using his head and eye movement."

Walker believed defendant was giving a signal to the man on the sidewalk. Walker testified defendant's motions caused him "great concern" and "alarm." Walker thought he was being "set up for an attack" based on the manner that defendant forced him to stop the truck and then signaled to the other man.³ Walker did not recognize either man, and he did not know whether they were trying to "kill me to get my truck or just kill me because they recognized me" as an officer.

3 As we will discuss in section V, post, defense counsel objected to Walker's interpretation and opinions about the meaning of defendant's motions, and the court overruled those objections and permitted Walker's testimony on these points.

Walker quickly looked to his left. Olvera was still standing on the sidewalk, and Walker did not see him with any weapon. Defendant remained in the street in front of the right side of Walker's truck. Walker turned his steering wheel to the left and attempted to accelerate around defendant because he believed he was in a dangerous situation.

Just as Walker started to accelerate, he heard and felt the vibration of a bullet hit the driver's door of his truck, directly below the open driver's door window. Defendant was still standing about three feet in front of the truck when the first shot was fired at the driver's door. Walker did not see a gun flash or the person who fired at him.

Walker ducked down on the driver's seat, turned the steering wheel to the left to avoid hitting defendant, and accelerated out of the area. As he drove away, he heard three or four more gunshots. He tried to look back through his left-side mirror, but it had been shattered.

Walker reached a point of safety and realized he was not wounded. He called 911 and reported the incident, and then turned around and headed back to the area to look for the suspects. He was carrying a firearm and drove around the area, but he could not find anyone. The initial investigation

Just minutes after the shooting, numerous officers responded to the scene and set up a perimeter in the area. Walker advised the responding officers that the two suspects were young Hispanic males. Walker said the man who stopped in front of his truck was wearing a Raiders black or grey jersey and black and white plaid shorts. The man who stayed on the sidewalk was wearing a white T-Shirt and dark-colored short pants.

It was later determined that a gunshot hit the driver's door of Walker's truck, just above the door handle and below the open window. The rear view mirror on the driver's door was shattered. Another bullet hit the left side window of the truck's rear camper shell, continued inside the camper shell, and hit the truck's cab directly behind the driver's seat. A third bullet entered the middle section of the camper shell's rear hatch window. Apprehension of the suspects

Shortly after responding to the scene, Officer DeJong and Sergeant Dash saw an individual in the perimeter area who fit the clothing description of one of the suspects. This individual, later identified as defendant, was near an apartment building in the 3000 block of Park Avenue. DeJong and Dash attempted to speak to defendant, but he refused to stop and ran away. DeJong and other officers chased defendant through the neighborhood.

Officer Padgett was heading toward the pursuit of the suspect when he came upon another person, later identified as codefendant Olvera, who was near the swimming pool of the same apartment building on Park Avenue. Olvera was walking away and kept looking back. Padgett ordered Olvera to stop, and Olvera obeyed his order. Olvera smelled of alcohol, but he was extremely calm, friendly, and cooperative. Olvera was wearing baggie pants and a Raiders jersey, but the jersey's colors did not match Walker's clothing description. He did not have a firearm.

Officer Padgett detained Olvera and escorted him to a police car. Olvera repeatedly asked why he was being detained. Padgett replied that he believed Olvera was involved in a shooting which had just occurred, and an officer was the intended victim. Olvera's demeanor changed, and he became defensive and said he did not know anything about a shooting.

In the meantime, DeJong and the other officers continued to chase defendant, who ignored their repeated orders to stop running. Defendant jumped neighborhood fences as he attempted to escape. The officers tried to use their "Tasers" to stop defendant, but they were unable to hit him. Officer Padgett, who had rejoined the pursuit, was able to deploy his Taser and defendant fell down. Defendant was taken into custody, and he did not have a firearm. Field identifications

About 15 to 20 minutes after the shooting, officers asked Walker to look at defendant in the field. Walker immediately identified defendant as the person who stopped in front of his truck.

About 30 to 40 minutes after the shooting, Walker was asked to look at Olvera. Walker thought Olvera looked similar to the suspect who stood on the sidewalk, but Olvera's clothes were not the same as that suspect. Walker asked Olvera to say something, Olvera complied, and Walker immediately recognized Olvera's voice as belonging to the suspect who asked him for a cigarette. The officers discovered that Olvera was wearing a white T-Shirt and dark-colored short pants under his baggie outer clothing. The apartment complex

Defendant and Olvera were apprehended in the vicinity of an apartment complex located in the 3000 block of Park Avenue. Cameo Vargas lived in one of the apartments in that complex with her boyfriend, Oscar Damian, and their young child.

Kathryn Vonsivers lived next to Vargas on the second floor, and reported that Vargas had a large and noisy party which began on the evening of June 18, 2009, and continued into the early morning hours of June 19, 2009. Vonsivers watched the intoxicated party guests through her window and repeatedly asked Vargas to take control of the situation. At one point, a fight broke out between the intoxicated guests. Vonsivers never saw Vargas's boyfriend that night.

Sometime around 4:00 a.m., Vonsivers saw three young Hispanic males leave Vargas's party; one male was so drunk that he staggered out. They were wearing white tank tops and jeans. The three men stopped on the staircase landing, and two of them continued downstairs and headed toward Park Avenue.

At trial, Vonsivers identified defendant as the man who was so intoxicated that he was staggering down the stairs. Defendant appeared so drunk that he lurched forward, as if he was going to fall, and the other man grabbed his arm and helped him down the stairs. Vonsivers also recognized defendant as someone who had previously visited Vargas's apartment.

Vonsivers testified that soon after the men left the party, she heard five gunshots fired in rapid succession. Within a minute, Vonsivers heard something like "a herd" people running up the stairs and into Vargas's apartment, where the party was still going on. The door slammed, the music was turned off, and "you could hear a pin drop it got so quiet." Vonsivers heard someone dragging or moving something heavy across the floor. She heard someone jump on the chain link fence at the back of the apartment complex, and then heard an officer tell someone to stop. Search of Vargas's apartment

A few hours after the shooting, the SWAT team and other officers searched Vargas's apartment pursuant to a warrant. The officers discovered a ladder in a bedroom closet, and the ladder led to an existing opening in the attic's crawl space. A .38-caliber revolver was found in the crawl space. The weapon contained six expended shell casings.

The revolver was later tested for DNA evidence, and it was determined that Olvera could not have contributed to the DNA found on the firearm. A criminalist explained that DNA could have been wiped off the weapon. Olvera's hands were tested for gunshot residue and the tests were negative.⁴ Cameo Vargas

4 After Olvera was arrested, he agreed to answer questions and said he did not know defendant, he did not know Cameo Vargas or her boyfriend, he was not at a party with them, and he did not shoot at anyone. Olvera said he was walking through the apartment complex to meet a girl, but she did not live in that building.

Cameo Vargas testified as a prosecution witness. At the time of trial, she was in custody for failing to appear on a subpoena, and she also faced assault charges in an unrelated case. Vargas had been living in her apartment with Oscar Damien, who was a gang member, but they had split up and she was planning to leave the apartment. Vargas admitted she socialized with members of the Norteno gang.

Vargas testified about the party at her apartment, and said her guests included Jose Lopez, Roberto Martinez, and Gabriel Olvera (codefendant Olvera's brother), who were members of the Norteno gang. Everyone was drinking and became intoxicated.

Vargas testified that defendant, codefendant Olvera, and a third man arrived at the party around 1:00 a.m. or 2:00 a.m. She did not really know them. They were there for a few hours. At one point during the party, the three men went into her daughter's bedroom and closed the door. Vargas was angry and told them to get out of the bedroom. Defendant, Olvera, and the third man walked out of the bedroom. Defendant and Olvera started to argue in the living room. Defendant kept yelling at Olvera to give him something. Defendant also acted disrespectfully toward Vargas. Vargas asked Jose Lopez to tell them to leave, and Lopez did so. Defendant, Olvera, and the third man left the apartment, and Vargas locked the door behind them.

Vargas testified that "a few seconds" after they left, defendant kicked down the door of her apartment, and Olvera was with him. Vargas told them to leave and closed the door. She did not hear any gunshots. They never returned to her apartment, and she thought they were arrested a few minutes later.

Vargas testified the police searched her apartment several hours later. She had no idea why a revolver was found in the attic of her daughter's bedroom.⁵ Vargas admitted that when she was interviewed by the police, she said that defendant and Olvera argued about a gun, but insisted that she never saw a firearm that night. Gang expert - Officer Perez

5 The defense called an officer who participated in the search who explained that area of the attic could have been reached through crawl spaces from both apartment No. 22 and No. 10, but the revolver was directly adjacent to the opening from No. 22.

Officer Joseph Perez, a member of the Merced Police Department's gang violence suppression unit, testified as a prosecution expert on criminal street gangs. Perez testified several Norteno "sects" were the primary gangs in Merced County, and there were approximately 2,000 members of those sects. The Norteno sects claimed the color red and the number 14. The primary activities of the Norteno sects were murder, robbery, carjacking, drug sales, assaults with deadly weapons, and other weapons violations.⁶

6 Officer Perez also testified about several predicate offenses involving Norteno gang members and other matters relevant to section 186.22, subdivisions (a) and (b). These issues are not raised in this appeal.

Perez assisted the SWAT team when it served the search warrant at Vargas's apartment. Vargas, Jose Lopez, Roberto Martinez, and Gabriel Olvera were there when the officers arrived. Officer Perez testified the three men were Norteno gang members, based on their prior admissions, contacts, and tattoos. Perez described Vargas as a Norteno associate. Perez testified the gathering at Vargas's apartment was likely a gang-related party. Perez was not familiar with Oscar Damian, Vargas's boyfriend who lived at the apartment with her.

Officer Perez testified defendant was an active participant in the Norteno gang in Merced County. Defendant had a Norteno tattoo on his face, consisting of one dot and four dots, signifying "14." He also had other Norteno tattoos on his back and arms. Defendant was arrested in November 2007 for committing a robbery with a fellow Norteno gang member and convicted of that offense. In April 2004, defendant was involved in a gang-related assault in juvenile hall. In December 2002 and January 2003, defendant was involved in gang-related assaults against other minors. In October 2002, defendant and his brother were involved in an incident where they showed red colors and shouted out a Norteno slogan. In August 2002, defendant and four other Nortenos attempted to assault a high school student. Defendant claimed membership in the Norteno gang when he was booked into custody.

Officer Perez testified that codefendant Olvera was also an active participant in the Norteno gang in Merced County. Olvera had been arrested several times with other Norteno gang members, and he admitted that he was a Norteno when he was in custody. Olvera and another Norteno gang member attacked a Sureno gang member in juvenile hall. Officer Perez was not aware of any incident, prior to the shooting in this case, in which defendant and Olvera were associated or acted together. Gang expert - Lieutenant Trindad

Lieutenant Thomas Trindad of the Merced Police Department also testified as a prosecution expert on criminal street gangs. He had been a peace officer for over 26 years. He was one of the department's first gang investigators when the unit was created in 1994, he had investigated 2,500 to 5,000 gang-related crimes, and he had testified as a gang expert 30 to 35 times. He regularly taught law enforcement courses about Hispanic street gangs, and he was a gang intelligence officer until his recent assignment as a lieutenant.

Lieutenant Trindad testified about the criminal activities and culture of the Norteno gang in Merced County. Gang members share information with each other as to how to avoid detection. For example, Trindad knew of a specific case where one gang member instructed his colleagues to use bleach on their hands, and burn their clothes, to eliminate gunshot residue. It was common for gang members to keep a firearm used during a gang-related crime, but to pass that weapon to another gang member for safekeeping.

Trindad testified that robbery was one of the primary activities of the Norteno gang. "What they'll do is they'll walk up to an individual, engage in a casual conversation, maybe try to lure the individual into a false sense of safety and then at the opportune moment or time, they will either pull a weapon and/or they will physically assault the individual and take what they want." Trindad testified that asking for a cigarette was one of many possible ruses.

"I have read reports where gang members have been involved in incidents where they have used a cigarette ruse. I can think just actually last couple—or a weekend ago we heard the same. I can't remember the exact case number, but I was reading a report in regards to that same ruse being used."

The prosecutor asked Lieutenant Trindad about the following hypothetical, and whether the crime was committed for the benefit of or in association with a criminal street gang:

"Two Norteno gang members are walking down an alley at the intersection of Park Avenue, a pickup truck is approaching, the truck is driven by an off-duty Merced police officer. The truck slows because gangsters approach the intersection. One gangster continues across the street. That gangster slows his gait in such a way to cause the truck to come to a complete stop. The gangster also stops directly in front of the truck. The other gangster who stayed on the corner of the intersection, called out to the driver of the truck asking for a cigarette. The driver responds he does not smoke. The driver notices the gangster standing in front of his vehicle gesture his head toward the second gangster on the corner. The driver becomes very concerned for his safety and starts to drive away, immediately his truck is struck with multiple bullets as he hears corresponding gunshots. The driver drives to safety and calls the police."

Over defense objections, Trindad testified that the hypothetical offense would have resulted in a financial benefit for the gang, based on any property they could have stolen from the victim. Such an offense also would have benefited the individual gang members through their use of force to gain importance within the gang. The offense would have been committed in association with a criminal street gang since it was committed by two gang members working together.

Also over defense objections, Trindad testified the hypothetical crime would have been committed with the specific intent to promote criminal gang activity. "[T]hey're going to benefit from the overall act of violence and the monetary gain that they could have received from the completion of a robbery."⁷ Trindad testified that his opinion would not change even if the victim of the hypothetical crime did not know that the two assailants were gang members.

7 In section VI, post, we will discuss defendant's contentions that Lieutenant Trindad's expert opinion testimony regarding the hypothetical was inadmissible.

"[G]ang members also share with the other gang members that they've committed this violent act [and] it boosters [sic]them up as well. So the fact that they were two criminal gang members that were involved in a violent act against a member of this community, it still bolsters within their own gang culture. Gang members live on violence."

"[B]ased upon the fact that it was two gangsters involved, it doesn't change my opinion that it was for the benefit of a criminal street gang."

"Q. So what you're saying is because there's two gang members involved in the hypothetical, then you can easily make the conclusion that this is a gang-motivated crime?
"A. I don't know if it's easy, but yes, based upon my training and experience, that I do feel that it was for the benefit of that criminal street [gang]."

DISCUSSION

I. Substantial evidence of attempted murder

Defendant contends there is insufficient evidence to support his conviction in count I for attempted premeditated murder as an aider and abettor. Defendant argues there is no evidence that he knew of or shared the same intent to kill as the alleged gunman in this case.

A. Substantial evidence

"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

"The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

This court may not reverse a conviction for insufficient evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

B. Aiding and abetting

"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.] To be guilty of a crime as an aider and abettor, a person must 'aid[] the [direct] perpetrator by acts or encourage[ ] him [or her] by words or gestures.' [Citations.] In addition, except under the natural-and-probable-consequences doctrine⁸ [citations] ..., the person must give such aid or encouragement 'with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,' the crime in question. [Citations.] When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person 'must share the specific intent of the [direct] perpetrator,' that is to say, the person must 'know[] the full extent of the [direct] perpetrator's criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator's commission of the crime.' [Citation.] Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing - which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.]" (People v. Lee (2003) 31 Cal.4th 613, 623-624.)

8 The natural and probable consequences doctrine is discussed in section III, post.

Mere presence at a crime scene does not suffice to establish aiding and abetting; however, acts tending to demonstrate aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the crime. (People v. Miranda (2011) 192 Cal.App.4th 398, 407; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094; accord, In re Juan G. (2003) 112 Cal.App.4th 1, 5.)

"Whether a person has aided and abetted in the commission of a crime is a question of fact, and on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment." (In re Juan G., supra, 112 Cal.App.4th at p. 5, fn. omitted.)

C. Analysis

Defendant argues there is insufficient evidence to support his conviction as an aider and abettor of the attempted murder of Walker, based on the theory that codefendant Olvera was the gunman. Defendant argues there is no evidence defendant actually knew the gunman intended to kill Walker - or that defendant shared that intent.

To the contrary, there was very strong circumstantial evidence supporting defendant's conviction as an aider and abettor of attempted murder, and that he had knowledge of the gunman's criminal purpose and intended to facilitate the gunman's intent to kill. Defendant and Olvera were together at Vargas's apartment in the hours before the shooting. When Walker saw defendant and Olvera, they were walking together out of the alley. The alley was in the general vicinity of Vargas's apartment. As they approached Park Avenue, Olvera stopped on the sidewalk while defendant slowed his gait, walked at an angle into the street, and stopped in front of Walker's truck in order to impede his travel. As defendant remained in front of Walker's truck, Olvera asked if Walker had a cigarette. Within seconds, defendant used his head and body, and he moved or gestured toward Olvera's position on the sidewalk. Defendant remained in front of Walker's truck as gunshots rang out from Walker's left side. The first gunshot, which was fired as Walker was trying to drive around defendant, hit the driver's side door, just above the door handle and below the open driver's window. The other gunshots hit the left side of the truck, shattered the driver's side mirror, and narrowly missed Walker as he finally maneuvered around defendant and drove away.

There is strong circumstantial evidence that defendant's conduct was part of an orchestrated scheme to intentionally stop the vehicle, take the driver by surprise, divert his attention, impede his ability to drive away, and keep him within easy range of the gunman, who was clearly standing on the left side of Walker's truck. The nature and location of the first shot, fired directly at the driver's door and which narrowly missed Walker, provides further circumstantial evidence that the gunman intended to kill the driver and that defendant was part of the plan to keep the driver in harm's way until their specific intent to kill was accomplished.

Defendant concedes that his conduct of stopping in front of Walker's truck and impeding its path could be interpreted as encouraging "some criminal action" by a waiting gunman. However, defendant argues it would have been illogical for him to stay in the "line of fire" in front of Walker's truck while the gunman fired at the vehicle from the left side. To the contrary, defendant's purposeful conduct of stopping in front of the right headlight of Walker's truck, and his continued presence in that position as shots were fired, raises the strong inference that defendant knew exactly how and where the gunman was going to open fire from the left side - that the gunshots were being aimed directly at the driver of the truck and not wildly in the general vicinity of the vehicle. There is no evidence that defendant ran or got out of the line of fire when the shooting started. Walker believed that defendant was still standing in front of his truck, and he had to maneuver his vehicle to the left side to avoid defendant and escape as the shots continued to be fired at his truck. Defendant's conduct undermined any inference that he was surprised or confused by the gunman's actions.

Defendant further argues there was no evidence of defendant's motive to kill Officer Walker, given the absence of evidence that defendant and/or Olvera recognized Walker as an officer. While there was no evidence on that particular point, there was substantial evidence that defendant and Olvera acted in concert and according to a plan to stop a vehicle in the early morning hours, when there were few people or vehicles on the street, and kill the vehicle's driver. It was presumably happenstance that the driver was a law enforcement officer and reacted so quickly to the dangerous situation.

II. Substantial evidence of count II

Defendant next contends there is insufficient evidence of count II, aiding and abetting the discharge of a firearm at an occupied vehicle. As in his attempted murder argument, defendant argues there was no evidence that he knew the gunman intended to shoot the driver of the truck, or that he intended to aid the gunman in doing so.

Section 246 states that "[a]ny person who shall maliciously and willfully discharge a firearm at an ... occupied motor vehicle ... is guilty of a felony ...." "Section 246 is a general intent crime. [Citation.] As such, the term 'maliciously' in section 246 is defined by section 7, item 4, as 'a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.' " (People v. Watie (2002) 100 Cal.App.4th 866, 879.)

The offense of shooting at an occupied vehicle can be committed without personally using a firearm, i.e., when the defendant has aided and abetted the gunman. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1531.) "[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561.)

As explained in section I, post, there is strong circumstantial evidence that defendant acted as part of a concerted plan to stop a vehicle and impede its path, so that the gunman could open fire at the driver. There is no evidence that defendant was surprised by the gunfire. Instead, defendant signaled to someone on the left side of Walker's truck, and defendant remained in front of Walker's vehicle as the shots were fired directly at the driver's door.

III. CALCRIM No. 400; natural and probable consequences

The jury received CALCRIM No. 400 as to the culpability of an aider and abettor. Defendant argues the court erroneously included a paragraph in that instruction which addressed the natural and probable consequences theory of culpability for an aider and abettor. Defendant asserts the prosecutor never relied on that doctrine, and the court's erroneous inclusion of language which implicated that doctrine was prejudicial error. Defendant argues the paragraph about natural and probable consequences was confusing and allowed the jury to convict him based on a theory that was not legally or factually supported in this case.

A. Natural and probable consequences

We begin with the well-settled law regarding aider and abettor culpability, and the natural and probable consequences doctrine. As explained in section I, ante, "[a]ider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him carry out the offense. [Citation.]" (People v. Miranda, supra, 192 Cal.App.4th at p. 407.)

"Under the natural and probable consequences doctrine, an aider and abettor is guilty of not only the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the actual perpetrator. The defendant's knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. [Citation.]" (People v. Miranda, supra, 192 Cal.App.4th at pp. 407-408)

The natural and probable consequences doctrine thus allows the jury to convict an aider and abettor of "any nontarget crime committed by the actual perpetrator if it was the natural and probable consequence of the target crime that the aider and abettor intended to aid and abet." (People v. Hart (2009) 176 Cal.App.4th 662, 670.)

B. The proposed instructions

During the course of trial, the prosecution submitted a list of proposed instructions which included CALCRIM No. 400, general principles on aiding and abetting; CALCRIM No. 401, aiding and abetting/intended crimes; and CALCRIM No. 403, which defined the natural and probable consequences doctrine, and target and nontarget offenses.

C. The court's discussion of the instructions

The instructional conference was not conducted on the record, but the court and the parties discussed the possible inclusion of CALCRIM No. 403, on the natural and probable consequences doctrine, during argument on defendant's motion to dismiss.

In the course of that motion, the prosecutor asserted that defendant and Olvera were Nortenos, they committed the crime in association with each other and for the benefit of the gang, and "[t]he original target offense [was] robbery."

During further argument on the motion, codefendant Olvera's attorney commented that the case was a "factual mess" and they should "exercise some control on the jury instructions, and I'm going to be bringing up the same theme again as we get further along and talk about robbery and carjacking and all of these other things that this - what the jury instructions would set the stage for the closing arguments, and I look to the Court to actually exercise some restraint . but in general that we are putting some [parameters] on the jury instructions within what is really - based in the facts that have been presented and not just the [gang expert's hypothetical]."

The court was also concerned about the aiding and abetting instructions:

"We have been examining very carefully, you know, the People's offering of some of the aiding and abetting instructions, and we're - I, frankly, am not convinced that some of these instructions are appropriate or are -frankly ought to be given, and that's another dilemma."

The prosecutor asked the court to take the motion to dismiss under submission. The prosecutor also asked the court to allow the parties some time to review the jury instructions and recent legal authorities about target offenses. The court again expressed its concern about the proposed instructions:

" . . . . I question whether the People really need or want instructions on target and non-target offenses, and ... I'm considering whether it's really not more appropriate on the aiding and abetting for there simply to be an instruction on, I think it's [CALCRIM Nos.] 400 and 401 and leave it at that rather than get into [CALCRIM No.] 403, which talks about non-target offenses and target offenses and having to prove up the target offense .... That seems to be wading into a swamp that is even deeper and more treacherous than what we've already gotten ourselves into."

The prosecutor conceded that the instructions were going to be a problem and he needed some more time to review them. The court took defendant's motion to dismiss under submission and adjourned for the day.

At the beginning of the next day's session, the court denied defendant's motion to dismiss. The court advised the prosecutor that it had done some "rethinking" about the instructions, and offered to discuss them off the record and suggest "some changes."

Thereafter, the court conducted the instructional conference off the record. After the conference, the court invited the parties to place objections on the record, but the parties declined to do so.

D. The instructions given to the jury

At the conclusion of trial, the court instructed the jury with the following version of CALCRIM No. 400, aiding and abetting:

"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator who directly committed the crime. A person is equally guilty⁹ of the crime
whether he or she committed it personally or aided and abetted the perpetrator who committed it.
"Unless under some specific circumstances if the evidence establishes aiding and abetting of one crime, a person may be found guilty of other crimes that occurred during the commission of the first crime."¹⁰(Italics added.)

9 In section IV, post, we will address defendant's contentions that the phrase "equally guilty" in CALCRIM No. 400 was erroneous and prejudicial.

10 As we will explain, this italicized paragraph implicates the natural and probable consequences doctrine, and the record strongly implies the court erroneously included it when it gave CALCRIM No. 400.

The court also gave CALCRIM No. 401, aiding and abetting an intended crime:

"To prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that, number one, the perpetrator committed the crime. Number two, the defendant knew that the perpetrator intended to commit the crime. Number three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime, and number four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose, and he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime. If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abett[o]r.
"If you conclude that the defendant was present at the scene of the crime or failed to prevent a crime, you may consider that fact in determining whether the defendant was an aider and abett[o]r. However, the fact that a person is present at the scene of a crime or fails to prevent the crime, does not by itself make him or her an aider and abett[o]r."

The court did not instruct the jury with CALCRIM No. 403, natural and probable consequences, target/nontarget offenses, thus implying this was one of the instructions withdrawn by the prosecutor or rejected by the court during the off-the-record instructional conference.

E. Closing arguments

In their closing arguments, none of the parties argued that defendant and Olvera intended to commit a robbery, carjacking, or some other offense, or that the attempted murder occurred in the course of committing another target offense. Instead, the prosecutor repeatedly asserted that defendant and Olvera were guilty of attempted murder because they committed a "concerted ambush" on Walker, they planned the attack, Olvera fired the gun but he had time to hide the gun at the apartment and clean his hands, and defendant did not fire the weapon but was guilty of aiding and abetting counts I and II. There was the intent to kill because all of the bullets were aimed at the passenger cab of Walker's truck. Defendant and Olvera "worked in concert with each other to put Officer Walker in a much more dangerous position so the shooting could occur." Defendant walked in front of Walker's truck and made him stop, and then defendant gave "the high sign" to Olvera to "take care of business, and immediately after that starts shooting. His whole attack was a planned ambush."

Defendant's attorney argued that it was just a theory that defendant walked in front of Walker's truck to stop it, and the prosecution had failed to present proof beyond a reasonable doubt to support the charged offenses. Defendant's attorney argued that defendant walked into the street at 4:30 a.m. because he was intoxicated, and not because he was part of some type of ambush, and cited to the evidence that defendant was drunk at Cameo Vargas's party. Olvera's attorney challenged Walker's identification of Olvera at the in-field showup, and noted that Walker never saw the gunman. In rebuttal, the prosecutor asserted Walker positively identified both defendant and Olvera.

F. Analysis

Defendant argues that when the court gave CALCRIM No. 400, it erroneously included the last paragraph of the instruction, as italicized ante, that paragraph addressed the natural and probable consequences doctrine, and it should have been deleted because the court and the parties decided not to instruct the jury with CALCRIM No. 403 about that doctrine. Defendant argues the mistaken inclusion of that paragraph in CALCRIM No. 400 was prejudicial because it could have triggered the jury's consideration of his culpability under the natural and probable consequences doctrine.

We agree that the final paragraph of CALCRIM No. 400 implicates the natural and probable consequences doctrine, and the trial court erroneously included that paragraph when it gave the instruction since the court and the parties apparently agreed not to instruct the jury about the natural and probable consequences doctrine pursuant to CALCRIM No. 403. Under these circumstances, the last paragraph of CALCRIM No. 400 was "an 'abstract' instruction, i.e., 'one which is correct in law but irrelevant[.]' [Citation.]" (People v. Rowland (1992) 4 Cal.4th 238, 282.) "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]" (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)

"Nonetheless, giving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal." ' [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 67.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]" (Id. at pp. 67-68.) In evaluating such a challenge, we must consider whether it is reasonably likely that the trial court's instructions caused the jury to misapply the law or to interpret the instructions in a way that violated the defendant's rights. (People v. Carrington (2009) 47 Cal.4th 145, 192.) In doing so, we must consider the entire charge to the jury, not just one particular instruction or part of an instruction. (Ibid.)

The court's erroneous inclusion of the final paragraph of CALCRIM No. 400 was not prejudicial under the circumstances of this case, and there is no reasonable likelihood the jury misapplied that language. (See, e.g., People v. Prettyman (1996) 14 Cal.4th 248, 272.) First, the court correctly gave the general instructions on culpability as a direct perpetrator and as an aider and abettor, and explained the distinctions between the two types of culpability. Second, it is clear that the court and the parties decided not to instruct the jury about natural and probable consequences, and target and nontarget offenses. While the prosecutor initially requested CALCRIM No. 403 on that doctrine, the court never gave the instruction, and the comments by the court and the parties strongly imply the instruction was either withdrawn or rejected.

Third, none of the parties used their closing arguments to make any comments or statements which implicated the natural and probable consequences doctrine. When the parties argued about the motion to dismiss, the prosecutor made comments suggesting that defendant and Olvera initially planned to commit a robbery, but these statements triggered the court's admonishments to the prosecutor about whether it should instruct on natural and probable consequences. By the time of the closing arguments, the prosecutor never referred to target and/or nontarget offenses, and repeatedly asserted that defendant and Olvera planned an ambush to murder the driver of the pick up truck. The prosecutor never argued before the jury that defendant and Olvera planned a carjacking, robbery, or some other offense, or that Olvera decided to shoot the driver at the last moment, such that defendant did not share his specific intent to kill. The defense attorneys did not use their arguments to raise the natural and probable consequences doctrine, and instead challenged Walker's description of the shooting and his identification of the suspects.

Defendant argues that the jury heard evidence which would have allowed it to improperly consider the natural and probable consequences theory, based on the paragraph that was mistakenly included within CALCRIM No. 400. Defendant points to Officer Walker's testimony in which he described the actions of defendant and his accomplice on the sidewalk, and Walker's explanation that he feared he was going to be attacked and/or they were going to take his truck. However, Walker also testified that he did not know whether defendant and his accomplice were trying to "kill me to get my truck or just kill me because they recognized me as an officer." There was no evidence that either defendant or his accomplice recognized Walker as an officer, but the entirety of Walker's testimony was consistent with the prosecution's theory in this case - that defendant and his accomplice intended to kill Walker.

Defendant also relies on Lieutenant Trindad's expert testimony as providing evidence from which the jury could have inappropriately relied on the natural and probable consequences theory, based on the mistaken inclusion of the paragraph in CALCRIM No. 400. In particular, defendant cites to Trindad's testimony that robbery was one of the primary activities of the Norteno gang, and the gang frequently used the "cigarette ruse." However, Trindad went into more detail than just describing the cigarette ruse as a method for gang members to commit a robbery: "What they'll do is they'll walk up to an individual, engage in a casual conversation, maybe try to lure the individual into a false sense of safety and then at the opportune moment or time, they will either pull a weapon and/or they will physically assault the individual and take what they want." (Italics added.) Trindad thus clarified that the cigarette ruse had been used to either pull a weapon or physically assault the individual. Moreover, the primary focus of Trindad's expert testimony was to address whether the offenses in this case were gang-related.

The court's erroneous inclusion of the final paragraph of CALCRIM No. 400 was not prejudicial under the circumstances of this case. "Because the parties made no reference to the 'natural and probable consequences' doctrine in their arguments to the jury, it is highly unlikely that the jury relied on that rule when it convicted defendant," and it appears the jury was persuaded by the prosecutor's argument that defendant encouraged or assisted the gunman to murder the truck's driver, and he was thus guilty of attempted murder as an accomplice to that crime, "not as an accomplice to some other unlawful act of which the murder was a natural and probable consequence." (People v. Prettyman, supra, 14 Cal.4th at p. 273.)

IV. CALCRIM No. 400 - "Equally guilty"

Defendant next challenges the following phrase in the first paragraph of CALCRIM No. 400:

"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Italics added.)

Defendant argues the italicized phrase "equally guilty" has been repeatedly criticized as confusing, it has been removed from subsequent versions of CALCRIM No. 400, and the inclusion of the phrase in this trial was prejudicial.

CALCRIM No. 400's inclusion of the phrase "equally guilty," while generally correct, may be misleading in some cases. (See, e.g., People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165; People v. Nero (2010) 181 Cal.App.4th 504, 517-518.) "Generally, a person who is found to have aided another person to commit a crime is 'equally guilty' of that crime. [Citations.] [¶] However, in certain cases, an aider may be found guilty of a greater or lesser crime than the perpetrator. [Citations.]" (People v. Lopez (2011) 198 Cal.App.4th 1106, 1118, italics in original.)

It has also been held that since CALCRIM No. 400's "equally guilty" language is generally accurate, but potentially incomplete in certain cases, a defendant has the duty to request modification of the instruction if he thought it was misleading on the facts of the case, and his failure to do so forfeits review of the claim of error. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1163-1165; People v. Lopez, supra, 198 Cal.App.4th at p. 1118; cf. People v. Nero, supra, 181 Cal.App.4th at pp. 517-518 [erroneous inclusion of the phrase subject to appellate review even in the absence of an objection].)

As explained in Samaniego, the phrase "equally guilty" is generally correct "in all but the most exceptional circumstances ...." (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) There were no exceptional circumstances in this case. (Ibid.)The prosecutor argued defendant and Olvera collaborated on setting up an ambush so they could shoot and kill the driver of the truck, and defendant intentionally stopped in front of Walker's truck and signaled to Olvera to start shooting. Defendant's attorney argued that his conduct was subject to another inference, that he walked into the street because he was intoxicated, and that inference was more likely under the circumstances.

In any event, the inclusion of the phrase "equally guilty" was not erroneous or prejudicial. " 'When the offense charged is a specific intent crime, the accomplice must "share the specific intent of the perpetrator"; this occurs when the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." [Citation.]' [Citation.] What this means here ... is that the aider and abettor must know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118, fn. omitted.)

As applied to this case, the jury was correctly instructed that attempted murder required the specific intent to kill, and it was also correctly instructed with CALCRIM No. 401, that defendant had to specifically intend to aid and abet the perpetrator's commission of attempted murder. The jury was also correctly instructed as to the definitions of willful, premeditated, and deliberate attempted murder, and the mental state of malice. The entirety of the instructions properly informed the jury as to the intent required for aider and abettor culpability.

In addition, the verdicts affirmatively demonstrate the jury did not erroneously believe it had to return identical verdicts for both defendant and Olvera, i.e., that they were both equally guilty of the same offenses. The jury found defendant guilty of attempted murder and shooting at an occupied vehicle as an aider and abettor, indicating that it found defendant was part of a concerted plan to shoot and kill the driver of the truck. However, the jury was unable to reach verdicts on those counts for Olvera, thus implying that it was not sure whether Olvera or someone else was the gunman standing on the left side of Walker's truck.

V. Officer Walker's testimony

As set forth ante, Officer Walker testified defendant made certain movements and gestures immediately before the gunshots were fired, and further testified that he believed defendant's gestures were intended as a signal to Olvera to start firing at him. Defendant contends the court should have granted his objections to exclude Walker's opinions as to his interpretation of defendant's physical gestures. Defendant asserts Walker testified as a victim and not as a law enforcement expert, and his interpretation of defendant's gestures intruded upon a factual question that should have been left for the jury.

A. Lay opinions

A witness must have personal knowledge of a subject for the testimony about it to be admissible, unless the witness is testifying as an expert. (Evid. Code, § 702, subd. (a).) "Personal knowledge means a present recollection of an impression derived from the exercise of the witness's own senses. [Citation.] A witness cannot competently testify to facts of which he or she has no personal knowledge. [Citation.]" (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 731, overruled on other grounds in Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 74, fn. 3; Evid. Code, § 702.)

Evidence Code section 800 provides: "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." (Evid. Code, § 800, subds.(a), (b).)

"Lay opinion testimony is admissible where no particular scientific knowledge is required, or as 'a matter of practical necessity when the matters ... observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner.' [Citations.]" (People v. Williams (1988) 44 Cal.3d 883, 915; People v. Chapple (2006) 138 Cal.App.4th 540, 547.) A lay witness's opinion testimony may be admitted if it is rationally based on the perception of the witness and is helpful to a clear understanding of the witness's testimony. (People v. Chapple, supra, 138 Cal.App.4th at p. 547.) A lay witness may testify in the form of an opinion only when he or she cannot adequately describe his or her observations without using opinion wording. The admission of a layperson's opinion testimony lies in the discretion of the trial court and will not be disturbed unless a clear abuse of discretion appears. (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33; People v. Callahan (1999) 74 Cal.App.4th 356, 380.)

B. Analysis

Defendant argues that the court abused its discretion when it overruled his objections and permitted Officer Walker to testify that defendant was signaling to Olvera just before the gunshots were fired. Defendant asserts his alleged physical movements were not the type of complex or subtle gestures to require the introduction of lay opinion.

We disagree with defendant's characterization of the situation. While Officer Walker testified as the victim of the crime rather than a law enforcement expert, his testimony was still admissible as lay opinion based on his personal knowledge of the shooting. Walker was the only percipient witness to defendant's conduct and actions as defendant walked directly in front of the truck, stopped within a few feet of the front right headlight, and then moved his head and body in a certain distinctive manner. The jury was well aware that Walker was testifying as the victim and not as a prosecution expert. Walker's lay opinion testimony, based on his personal knowledge and experience of the situation, was admissible to describe his interpretation of defendant's subtle physical movements.

VI. Lieutenant Trindad's expert testimony

Defendant asserts the court improperly permitted Lieutenant Trindad to testify about the prosecution's hypothetical question as to whether the attempted murder of Walker was committed for the benefit of a criminal street gang. Defendant argues the prosecutor's hypothetical question, and Trindad's response, exceeded the scope of admissible expert opinion and implicated factual questions that should have been left to the jury.

A. Expert testimony in gang cases

"In cases where a gang enhancement is alleged or a substantive gang crime is charged, expert testimony regarding the 'culture, habits, and psychology of gangs' is generally permissible because these subjects are ' "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ' [Citation.] For example, an 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.)

"There is rarely direct evidence that a crime was committed for the benefit of a gang. For this reason, 'we routinely draw inferences about intent from the predictable results of action. We cannot look into people's minds directly to see their purposes. We can discover mental state only from how people act and what they say.' [Citation.] 'Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.' [Citations.]" (People v. Miranda, supra, 192 Cal.App.4th at pp. 411-412.)

"The People are entitled to 'introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.' [Citation.] '[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.' [Citations.]" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) "Expert testimony repeatedly has been offered to show the 'motivation for a particular crime, generally retaliation or intimidation' and 'whether and how a crime was committed to benefit or promote a gang.' [Citation.]" (Ibid.)

Expert testimony may be admissible even though it encompasses an ultimate issue in the case, and even if that ultimate issue is whether the crime benefited the gang. (People v. Valdez (1997) 58 Cal.App.4th 494, 506-507.) "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of ... a[] criminal street gang' within the meaning of section 186.22(b)(1). [Citations.]" (People v. Albillar (2010) 51 Cal.4th 47, 63.) It is within the court's wide discretion to determine whether to admit such testimony and its determination will not be reversed on appeal unless it is clear that the court abused its discretion. (People v. Valdez, supra, 58 Cal.App.4th at p. 506.)

B. Killebrew

"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.' [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence .... [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618.) "An expert, however, may not testify that an individual had specific knowledge or possessed a specific intent. [Citation.]" (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513.)

Defendant relies on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), in support of his contention that Lieutenant Trindad's responses to the hypothetical questions in this case exceeded permissible limits. In Killebrew, the defendant was convicted of conspiracy to possess a handgun after police found a handgun in one of three vehicles occupied by seven gang members, and found another handgun in the dumpster of a taco stand where the gang members had stopped. The defendant was seen in the area of one of the vehicles, and two unidentified men were seen walking away from his location. (Id. at p. 648.) "The prosecution theorized that the threat of [rival gang] retaliation compelled the occupants of the three vehicles to conspire to possess the handgun[s]...." (Id. at p. 649.) The prosecution attempted to establish that the defendant had been a passenger in one of the vehicles. "[A] police officer testified as an expert on gangs to establish not only [defendant's] membership in a criminal street gang, but his subjective knowledge and intent to possess [a] handgun." (Id. at p. 647, italics added.)

Killebrew reversed the defendant's conviction and held the expert improperly testified to his opinion about "the subjective knowledge and intent of each occupant in the car (Killebrew, supra, 103 Cal.App.4th at p. 652.)

"Through the use of hypothetical questions, [the expert] testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, [the expert] testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action.
"[The expert's] testimony was the only evidence offered by the People to establish the elements of the crime. As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]" (People v. Killebrew, supra 103 Cal.App.4th at p. 658, original italics omitted, italics added.)

Killebrew recognized there is no "bright line," or " 'hard and fast rule' " prohibiting expert opinion on an ultimate issue. (Killebrew, supra, 103 Cal.App.4th at pp. 651-652.) But Killebrew held the expert's improper opinion testimony was ultimately prejudicial in that case because it was not the type of "culture and habit" testimony admissible in gang cases, and it provided the only evidence of the defendant's actual participation in the charged offenses. (Id. at pp. 648-649, 654.)

However, Killebrew "does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator's intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. [Citation.]" (People v. Gonzalez, supra, 126 Cal.App.4th at pp. 1550-1551; accord, People v. Gonzalez (2006) 38 Cal.4th 932, 946 ["we read Killebrew as merely 'prohibiting] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial' "].)

The California Supreme Court has clarified that "[i]t would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons." (People v. Gonzalez, supra, 38 Cal.4th at p. 947, fn. 3.) For example, in People v. Ward (2005) 36 Cal.4th 186 (Ward), the defendant relied on Killebrew and argued that the prosecutor improperly used "fact-specific hypothetical questions" to elicit testimony from gang experts that "a gang member going into rival gang territory - like defendant - would do so as a challenge and would protect himself with a weapon. According to defendant, the specificity of the hypothetical questions converted the answers by the experts into improper opinions on his state of mind and intent at the time of the shooting. As such, the experts were not merely explaining 'gang practices or methods generally' but 'opining that' defendant 'premeditated the crimes.' " (Ward, supra, 36 Cal.4th at p. 209.)

Ward rejected the defendant's reliance on Killebrew, and held the experts "did not render an impermissible opinion as to defendant's actual intent; rather, they properly testified as to defendant's motivations for his actions." (Ward, supra, 36 Cal.4th at p. 209.) Ward held the expert opinions in the case fell within the gang culture and habit evidence approved in Gardeley: "The substance of the experts' testimony, as given through their responses to hypothetical questions, related to defendant's motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges. [Citations.] This testimony was not tantamount to expressing an opinion as to defendant's guilt. [Citation.]" (Ward, supra, 36 Cal.4th at p. 210.)

C. Analysis

Defendant argues that Lieutenant Trindad's response to the prosecutor's hypothetical question was admitted in violation of Killebrew because the hypothetical facts "closely tracked" the facts of the shooting, as described by Officer Walker, it was "perfectly apparent to every juror in the courtroom" that Trindad was being asked to "opine" on defendant's subjective state of mind; and the prosecutor's " 'hypothetical' did not refer to hypothetical events."

As noted by respondent, defendant's arguments on these points are virtually identical to issues which were pending before the California Supreme Court when the briefing was completed in this case and have since been resolved. In People v. Xue Vang (2011) 52 Cal.4th 1038 (Vang), the appellate court held that in a case involving the gang enhancement, a prosecutor's hypothetical questions to a gang expert were inappropriate because the questions "closely tracked the evidence in a manner that was only thinly disguised." (Id. at p. 1041.) In Vang, the California Supreme Court disagreed with the appellate court's analysis and held that "[i]t is required, not prohibited, that hypothetical questions be based on the evidence. The questioner is not required to disguise the fact the questions are based on that evidence." (Ibid.) Vang further held the prosecutor's hypothetical questions to the expert were properly "based on what the evidence showed these defendants did, not what someone else might have done. The questions were directed to helping the jury determine whether these defendants, not someone else, committed a crime for a gang purpose. Disguising this fact would only have confused the jury." (Id. at p. 1046, original italics.) As applied to this case, the court properly allowed Lieutenant Trindad to answer the prosecutor's hypothetical questions, even though the prosecutor's questions closely tracked the facts of the shooting.

Defendant further argues the prosecutor's hypothetical questions violated Killebrew because the questions addressed the ultimate issue of guilt. In Vang, supra, 52 Cal.4th 1038, the California Supreme Court agreed with its previous analysis in Gonzalez, supra, 38 Cal.4th 932, 946, footnote 3, about the limited significance of Killebrew. (Vang, supra, 52 Cal.4th at p. 1047) "To the extent Killebrew ... purported to condemn the use of hypothetical questions, it overlooked the critical difference between an expert's expressing an opinion in response to a hypothetical question and the expert's expressing an opinion about the defendants themselves." (Id. at p. 1049.) "[E]xpert testimony is permitted even if it embraces the ultimate issue to be decided. [Citation.]" (Ibid.)The jury must still decide whether to credit the expert's opinion at all, and "whether the facts stated in the hypothetical questions are the actual facts, and the significance of any difference between the actual facts and the facts stated in the questions." (Id. at p. 1050.)

In contrast to Killebrew, the expert's testimony in this case was not the only evidence of defendant's involvement in the charged offenses, given Walker's testimony that defendant walked into the street, stopped in front of his truck and gestured to someone on Walker's left side immediately before the gunshots were fired. The gang evidence in this case was relevant to prove defendant's intent and conduct. Trindad did not offer an opinion as to whether either defendant or Olvera committed the charged offenses for the benefit of the gang or about their mental states. Instead, Trindad responded to the hypothetical question about a crime and explained why such an offense would be gang-related. (See, e.g., People v. Garcia, supra, 153 Cal.App.4th at pp. 1513-1514.) Even Killebrew recognized that gang experts are permitted to testify about whether and how a crime was committed to benefit or promote a gang. (Killebrew, supra, 103 Cal.App.4th at p. 657.) While Trindad's opinion, together with the entirety of the trial evidence, "may have led the jury to the ineluctable conclusion" that defendant committed these offenses at the direction, for the benefit, or in association with a criminal street gang, "that does not render it inadmissible. [Citation.]" (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551.)

VII. Section 654

Defendant's final issue concerns the sentence imposed in this case. Defendant contends the court should have stayed the concurrent term imposed for count III, the substantive gang offense, because he had the same intent and objective when he committed counts I and II.

A. Background

Defendant was convicted of count I, attempted premeditated murder of Walker; count II, discharge of a firearm at an occupied vehicle (§ 246); and count III, the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)). As to counts I and II, the jury found the offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)), and the court found defendant had one prior strike conviction.

At the sentencing hearing, the court found the term for attempted murder with a gang enhancement was 15 years to life and doubled that term to 30 years to life as the appropriate second strike term. The court stayed the term imposed for count II.

As to count III, the court found it was a separate substantive violation of the criminal street gang statute and asked the parties to discuss the appropriate sentence. The prosecutor stated that the court could impose a full determinate term for that count, but a concurrent sentence was appropriate since the underlying felonies were the offenses committed in counts I and II. The court agreed and imposed a concurrent term of two years for count III.

B. Herrera and Sanchez

Section 654 "prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) "On the other hand, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, 'the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple.' [Citation.]" (Ibid.)"The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. [Citations.]" (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466 (Herrera).)

On appeal, defendant relies on People v. Sanchez (2009) 179 Cal.App.4th 1297 (Sanchez), and argues the concurrent term imposed for count III, the substantive street gang offense, should have been stayed pursuant to section 654 because his gang participation was part of the single continuous course of conduct for which he was convicted and sentenced in count I, attempted murder, particularly since the gang enhancement was found true for those two counts. In Sanchez, the Fourth District, Division 2, held that if the defendant's conviction for an offense was used to satisfy the underlying felony element of the active participation substantive offense, then the same act and intent "almost by definition" had to be involved in both crimes, and a defendant could not be punished for both active participation and the underlying felony, pursuant to section 654. (Sanchez, supra, 179 Cal.App.4th at p. 1316.)

Defendant acknowledges that the contrary position was reached in Herrera, supra, 70 Cal.App.4th 1456, where the Fourth District, Division 3 held that that the defendant's sentence for the substantive gang offense was not subject to section 654. As Herrera explained:

"Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a
substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant's objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter member never had the specific intent to kill. Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess 'two independent, even if simultaneous, objectives[,]' thereby precluding application of section 654. [Citation.]" (People v. Herrera, supra, 70 Cal.App.4th at pp. 1467-1468, italics in original, fns. omitted.)

Herrera further explained that a contrary interpretation "would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. '[T]he purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability." [Citation.]' [Citation.] We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes." (Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted; see also In re Jose P., supra, 106 Cal.App.4th 458, 471 [Sixth District followed Herrera]; People v. Ferraez (2003) 112 Cal.App.4th 925, 935 [Fourth District, Division 3 followed Herrera]; People v. Garcia (2007) 153 Cal.App.4th 1499 [same].) As the parties acknowledge, the question of whether section 654 applies in such a situation is currently pending before the California Supreme Court.¹¹

11 See People v. Mesa (2010) 186 Cal.App.4th 773, review granted Oct. 27, 2010 (S185688) [Fourth District, Division 1 followed Herrera]; People v. Duarte (2010) 190 Cal.App.4th 82, review granted Feb. 23, 2011 (S189174) [Fourth District, Division 3 followed Sanchez].

C. Analysis

We believe Herrera is the better reasoned opinion to apply in this particular case, and that defendant's sentence for the substantive gang offense should not be stayed under section 654.

As applied to this case, attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623-624.) Section 186.22, subdivision (a) is a "substantive offense whose gravamen is the participation in the gang itself." (In re Jose P., supra, 106 Cal.App.4th at pp. 470-471, italics in original.) A defendant must have the intent and objective to actively participate in a criminal street gang, but need not have the intent to personally commit any specific felony. (Herrera, supra, 70 Cal.App.4th at p. 1467.)

When a defendant commits a crime for the benefit of a criminal street gang, he or she may have two independent but simultaneous objectives - to commit the underlying crime and to benefit the gang. (People v. Ferraez (2003) 112 Cal.App.4th 925, 935; Herrera, supra, 70 Cal.App.4th at p. 1468.) Thus, section 654 does not prohibit punishing a defendant both for violating section 186.22, subdivision (a), and for an underlying offense committed for the benefit of the gang when the two offenses involve different objectives. (People v. Ferraez, supra, 112 Cal.App.4th at p. 935; Herrera, supra, 70 Cal.App.4th at pp. 1467-1468.)

Even though the attempted murder in this case was committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b), the substantive gang offense of section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of a gang. (In re Jose P., supra, 106 Cal.App.4th 458, 471.) In this case, as in Herrera, defendant's active participation in a gang was a well-documented substantive offense and separate from the offenses he committed when he shot at Officer Walker. At the sentencing hearing, the prosecutor referred to counts I and II as the underlying felonies for count III. In closing argument, however, the prosecutor explained that count III was based on defendant's prior conviction for committing a robbery with other Nortenos. The concurrent term imposed for count III was not subject to section 654.

DISPOSITION

The judgment is affirmed.

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Poochigian, J.

WE CONCUR:

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Kane, Acting P.J.

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Detjen, J.