Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. BA314454, Lance A. Ito, Judge. Vega’s judgment is affirmed. Vega’s sentence is reversed in part and remanded for resentencing.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Christian Vega.
Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant Steven Cuellar.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendants and appellants Christian Vega and Steven Cuellar were tried in a joint trial before separate juries. Vega’s jury convicted Vega of first degree murder (Pen. Code, § 187, subd. (a) ), second degree commercial burglary (§ 459), attempted second degree robbery (§§ 664/211), and forgery (§ 476). Vega’s jury found true the special circumstance allegations that Vega committed the murder while engaged in the commission of burglary (§ 460) and robbery or attempted robbery (§§ 211, 212.5). (§ 190.2, subd. (a)(17).) Vega’s jury further found true the special allegations that each of Vega’s offenses was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A)); and that a principal personally and intentionally discharged a firearm proximately causing great bodily injury and death in the commission of the murder and attempted robbery (§ 12022.53, subds. (d) & (e)(1)). The trial court sentenced Vega to 31 years to life in state prison for his attempted robbery conviction, a consecutive term of life without the possibility of parole for his murder conviction, and concurrent one year and eight month terms-one third of the middle term-for his burglary and forgery convictions and the corresponding gang enhancements.
All statutory citations are to the Penal Code unless otherwise noted.
Cuellar’s jury convicted Cuellar of first degree murder (§ 187, subd. (a)), second degree commercial burglary (§ 459), attempted second degree robbery (§§ 664/211), and forgery (§ 476). Cuellar’s jury found true the special circumstance allegations that Cuellar committed the murder while engaged in the commission of burglary and robbery or attempted robbery (§ 190.2, subd. (a)(17)), and that Cuellar intentionally killed the victim while Cuellar was an active participant in a criminal street gang to further the activities of the gang (§ 190.2, subd. (a)(22). The jury further found true the special allegations that Cuellar personally and intentionally discharged a firearm proximately causing great bodily injury and death in the commission of each of Cuellar’s offenses (§ 12022.53, subd. (d)) and that each of Cuellar’s offenses was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A)). The trial court sentenced Cuellar to 31 years to life in state prison for his attempted robbery conviction, a consecutive term of life without the possibility of parole for his murder conviction, and consecutive one year and eight month terms for his burglary and forgery convictions.
We note that Cuellar’s abstract of judgment misidentifies Cuellar’s second degree commercial burglary conviction in count 2 as a second degree robbery conviction. We order Cuellar’s abstract of judgment modified to reflect a conviction for second degree commercial burglary. (People v. Mitchell (2001) 26 Cal.4th 181, 187 [an appellate court can correct “clerical errors in the abstract of judgment without a request from either party”].)
On appeal, Vega contends that his convictions for murder, burglary, attempted robbery, and forgery are not supported by sufficient evidence; testimony from the prosecution’s gang expert usurped the jury’s fact-finding function in violation of his Fifth, Sixth, and Fourteenth Amendment rights to due process, a fair trial, and trial by jury; the trial court erred in instructing the jury with CALJIC No. 2.71.7; and insufficient evidence supports the gang enhancement allegation because the evidence did not establish that the predicate offenses were committed by Vega’s clique within the Playboys gang. We asked the parties to submit supplemental letter briefs addressing whether the trial court erred in imposing concurrent terms of one-third of the middle term rather than concurrent full middle terms for Vega’s burglary and forgery convictions and the corresponding gang enhancements.
Cuellar requests that we review the sealed transcripts of the trial court’s in camera review of certain police officer personnel files for error under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), insufficient evidence supports the active gang member special circumstance because the evidence did not establish that he had knowledge of the criminal street gang’s pattern of criminal activity, and the trial court erred in failing to apply section 654 when it sentenced him on his burglary and attempted robbery convictions because those offenses were the underlying felonies for his murder conviction. Vega purports to join in any of Cuellar’s arguments that might inure to Vega’s benefit. We reverse Vega’s sentence with respect to his burglary and forgery convictions and the corresponding gang enhancements and remand for resentencing, and we order Cuellar’s abstract of judgment modified to reflect a conviction for second degree commercial burglary rather than second degree robbery. We otherwise affirm the judgments.
BACKGROUND
A. The Prosecution’s Evidence Presented To Both Juries
In early November 2006, brothers Sam and Simon Khalil and their cousin owned and operated the Maple Market and Liquor Store (Maple Market) located at 3000 South Maple Avenue in Los Angeles The store sold various items and cashed checks. Usually, the Maple Market required persons to show identification when cashing checks. When the checks came from a known company, however, identification was not required. One such company was the Print Shop, a silk screening business, that was located about one-half mile from the Maple Market.
The store was variously referred to in the record as the Maple Market and Liquor Store and the Maple Liquor and Market.
On October 1, 2006, Injun Cho purchased the Print Shop. Around October 18 or 19, 2006, the Print Shop was burglarized. The burglars took four computers, equipment, and blank checks. At some point in October, Cho was alerted that there was a “problem” with the checks. Cho did not immediately close the account because she had legitimate checks outstanding. Cho closed the account on October 24, 2006.
“Ricardo” worked for the previous owner of the Print Shop and left with her to work at her new business when the Print Shop was sold. Ricardo Ramirez and Oscar Olloqui lived in an apartment building located at 120 1/2 West 51st Street. Around midnight one night in October 2006, Judith Cabrera was in the apartment building’s basement when she saw Ramirez and Antonio “Mugroso” Arriaga bring computers and a checkbook into the basement. There were blank checks in the checkbook.
Arriaga told Marcela Galindo to fill out blank Print Shop checks using a list of names Arriaga provided. Arriaga, Cabrera, and Galindo cashed checks drafted by Galindo at the Maple Market. Cabrera gave some of the proceeds of the cashed checks to Arriaga, Galindo, Olloqui, and a person named Selvin.
On October 20 and 21, 2006, the Maple Market cashed several Print Shop checks that it deposited into its account at Hanmi Bank. Around October 30 or 31, 2006, the bank informed Sam Khalil of the Maple Market that the Print Shop would not honor the checks. The Maple Market lost the money it had paid out on the checks. Sam discussed the problem with the Print Shop checks with his brother Simon.
Around 1:00 p.m. on November 2, 2006, Nathaniel Barnes was in the area of the Maple Market when he saw two men. One of the men was wearing gray pants and a white shirt. The other man was wearing dark clothes with a jacket and was carrying a backpack. The men “fidgeted” with the backpack. The man wearing dark clothes put a large object into his backpack. The man wearing the white shirt stood beside his companion, looking up and down the street. Barnes saw the butt end of a shotgun being placed in the backpack. The man carrying the backpack encouraged the man wearing the white shirt to go to the store.
As Barnes walked down Maple Avenue toward 31st Street, he noticed a blue SUV. Barnes stopped about 12 feet from the SUV. Two Hispanic men sat in the driver’s and front passenger’s seats. The driver, who Barnes identified at trial as Olloqui, wore a “hoodie” and appeared to be tall and to weigh about 210 or 220 pounds. The passenger had short hair, was “chunky, ” and had “L.A.” tattooed on the front of his neck. Barnes saw both men’s faces. Barnes had been looking at the men for about five to seven seconds when the passenger said, “Just keep walking. I’ll take care of you.” Barnes walked eastbound on 31st Street and stopped to smoke a cigarette. When Barnes again resumed walking, the blue vehicle drove past him as if it were being chased.
Around 1:00 p.m. on November 2, Sam and Simon Khalil were working at the Maple Market. The market was equipped with three surveillance cameras that recorded activity at the store’s entrance and the area around the cash register. Excerpts from the surveillance videos were played for the jury. The video from the front door surveillance camera showed, at 1:05 p.m., a man wearing a white shirt and a man wearing a dark-colored jacket. Sam walked to the restaurant next door to pay a bill. The video showed the men arguing with Simon.
Discussing the propriety of a voluntary manslaughter instruction based on a theory of provocation outside the presence of the jury, the trial court described the events depicted on the videotape. According to the trial court, the videotape showed a man in a white shirt hand Simon Khalil a folded check. Simon straightened out the check, looked at it, immediately crumpled it, and threw it back at the man in the white shirt. Simon then immediately came from around the counter and confronted the man in the white shirt. Although Simon was “very animated, ” his hands remained at his sides. The person with the backpack then pulled out a sawed-off shotgun and pointed it at Simon.
About that time, Oscar Rodriguez entered the Maple Market. When he entered the store, Rodriguez saw two men facing the cashier. Oscar walked to the back of the store. While there, Rodriguez heard a gunshot. Rodriguez looked up at an overhead mirror and saw a man in a white shirt and a man dressed in all black running away.
While Sam Khalil stood in the restaurant paying the bill, he heard two men tell his brother, “Give us the money.” Sam sneaked outside to see what was happening and saw two men with a gun and a rifle. Sam went back inside the restaurant and had picked up the telephone to call 911 when he heard a gunshot.
As he was talking to 911, Sam Khalil left the restaurant and returned to the Maple Market where he saw Simon Khalil lying on the floor. Paramedics took Simon to the hospital where he underwent surgery, but died from his gunshot wound. Sam saw the backs of two men running out of the market. During his 911 call, Sam stated that two Hispanic men, armed with guns, entered the Maple Market, tried to rob the store, and shot his brother. Sam said he could not further describe the men because he could “barely” see them. The men ran away on Maple Avenue and then turned onto 31st Street. At trial, Sam identified Cuellar as the person who argued with his brother.
Karla Medina was in her car when she heard a gunshot come from the Maple Market. Medina then saw two men casually walk out of the market. Medina heard a scream, and the men began to run down Maple Avenue towards 31st Street. At trial, Medina identified Cuellar as one of the men. Medina testified that Cuellar was wearing a white t-shirt and a black back support with shoulder straps. The other man wore a black sweater with a hood, a black cap, black pants, and a black backpack. The man dressed in all black placed an object in his backpack that Medina believed was a weapon. The men got into back seat of a dark blue car, and the car sped off.
Medina called 911 and reported the shooting. Medina described the suspects as two male Hispanics wearing black jackets and hats. One of the men was wearing a white t-shirt and a “vest thing, like if he was going to pick something heavy up.” Medina stated that the men were carrying backpacks and “they” had a gun. The men got into a small blue vehicle that Medina believed was a Pilot. Medina said that one of the men had a gun.
About 1:10 p.m., on November 2, 2006, Los Angeles Police Department Detectives Sunny Romero and Richard Arciniega arrived at the Maple Market. Officers collected an expended bullet inside the check cashing booth. Sam Khalil provided Detective Romero with surveillance video “stills” of some of the customers he believed had cashed some of the bad checks, copies of the bad checks, and contact information for the Print Shop’s owners. Using the videotape stills, the detectives met with gang officers to see if they could identify the individuals who had cashed the bad checks. The detectives created a number of six-pack photographic lineups.
On December 20, 2006, Cuellar was detained outside his residence on 51st Street. Detective Romero searched Cuellar’s bedroom and found a California Identification Card in Cuellar’s name, a torn piece of notebook paper bearing the name “Whisper, ” a sawed-off shotgun, shotgun rounds, a.380-caliber semiautomatic handgun and magazine, a black back brace, and a baseball cap that appeared to be similar to a cap worn by a person depicted in a surveillance videotape cashing a forged Print Shop check.
Diana Paul, a Los Angeles Police Department criminalist, analyzed a fired bullet and a fired cartridge case recovered at the Maple Market to determine if they were fired from the.380-caliber semiautomatic handgun and magazine found in Cuellar’s bedroom. Although Paul determined that it was possible that the handgun fired the bullet and cartridge, the results of her analysis were inconclusive, meaning that she could not say to a scientific certainty that the bullet was or was not fired from the handgun.
Los Angeles Police Officer Ronald Berdin testified as the prosecution’s gang expert. Officer Berdin was assigned to the gang enforcement detail in the Newton Division. In that assignment, Officer Berdin monitored the Playboys gang. According to Officer Berdin, in November 2006, there were 200 to 225 Playboys gang members in the Newton Division.
Officer Berdin testified that “respect” was the most important aspect of gang membership for Playboys gang members. Respect means that a gang member had earned his place in the gang, and that other gang members looked up to him and wanted to be like him. A Playboys gang member could earn respect by committing the crimes that were the gang’s primary activities. Playboys gang members strive to be respected by other gang members. A gang member’s respect within the gang would increase by committing more severe or violent crimes.
The Playboys gang covered a large area, and its members aligned themselves with certain streets within that area. Within the Playboys gang in the Newton Division, there were several cliques. Fifty-first Street was a “clique” or subset of the Playboys gang within the Newton Division. As part of its gang territory, the Playboys gang claimed the area bordered by Slauson Avenue on the south, Vernon Avenue on the north, the 110 Freeway on the west, and Central Avenue on the east. The Playboys gang marked its territory with graffiti. The gang used the Playboy bunny or “PBS” as its symbols. The primary activities of the Playboys gang included felony vandalism, narcotics sales, robberies, assault with deadly weapons, grand theft auto, attempted murder, and murder.
On December 7, 2007, Playboys gang member Victor Perez was convicted of attempted murder in case number BA310831 for an attempted murder that occurred on July 7, 2006. On April 4, 2007, Playboys gang member Jose Segoviano (Jose Hernandez) was convicted of robbery in case number BA309220 for a robbery that occurred on September 13, 2006. On August 31, 2005, 46th Street clique Playboys gang member Jose Ramos was convicted of possession of cocaine base for sale in case number BA285080, for possession that occurred on June 9, 2005.
Officer Berdin was familiar with Vega. Vega had various tattoos related to the Playboys gang some of which indicated that Vega was a member of the 46th Street clique of the Playboys gang. The number and placement of Vega’s tattoos indicated that he held a high status within the gang and that he was a “hard core” member of the gang. “Hard core” gang members commit crimes on a regular basis, make sure that other gang members commit crimes to further the gang’s status within the community, and will “pretty much die for the gang itself.”
Officer Berdin had had previous contact with Bautista. Bautista had tattoos that indicated that he was a member of the 51st Street clique of the Playboys gang. Officer Berdin opined that Bautista was a member of the Playboys gang. Officer Berdin contacted Bautista after the shooting at the Maple Market. Bautista told Officer Berdin that he was an active member of the Playboys gang. When Officer Berdin contacted Bautista in 2005, Bautista stated that his moniker was “Panic.” During their most recent contact, Bautista told the officer that his moniker was “Whisper.”
Prior to this case, Officer Berdin had not had contact with Cuellar. Officer Berdin testified that Cuellar had tattoos that indicated Cuellar’s membership in the 51st Street clique of the Playboys gang. Cuellar had “51st Street” tattooed on his back. Cuellar also had a “5” tattooed on the back of his left arm and on his left triceps, a “1” tattooed on the back of his right arm and on his right triceps, and “51” tattooed on his lower leg.
Officer Berdin had contact with Olloqui prior to this case. Olloqui had a tattoo of an angry bunny on his left arm.
Officer Berdin opined that Vega, Bautista, Cuellar, and Olloqui were active members of the Playboys gang in November 2006. Officer Berdin’s opinion was based on their tattoos, some of their statements, and their assumed participation in the crimes at the Maple Market.
The prosecutor presented Officer Berdin with a hypothetical fact pattern based on the evidence in this case and asked the officer if the offenses were committed in association with the Playboys gang. Officer Berdin answered affirmatively, explaining that there were four Playboys gang members in a vehicle who committed the crimes. The two younger gang members who entered the store wanted to commit the crimes to earn respect and status in the gang. The more violent the act-such as shooting and killing the store clerk-the greater respect a gang member earns in the gang. Generally, in a gang, the older gang members “will organize this type of crime.” Officer Berdin opined that the two older gang members remained in the car to provide protection and to verify that the younger gang members committed the crimes.
Officer Berdin explained that if the two younger gang members failed to commit the crimes, the two older gang members and the gang would have a lesser view of them. According to Officer Berdin, a gang member’s respect in the gang would be “minimized” if, in the presence of another gang member, the gang member brandished a gun in the course of a robbery but failed to cause the victim to back down. Gang members would look down upon and not respect a gang member who failed to take action in response to such a circumstance. If such a failure became known on the street, the gang would not be respected.
According to Officer Berdin, the Maple Market is located in the “heart” of the Ghetto Boyz gang’s territory. The Ghetto Boyz gang is a rival of the Playboys gang. Officer Berdin opined that committing an attempted robbery or murder in a rival gang’s territory benefited the Playboys gang because it gained respect for the individuals who committed the crime and the gang itself. To the extent that money was obtained in the commission of the crime, the gang would later use the money for a variety of purposes, presumably for its benefit.
B. Evidence Presented To Vega’s Jury
On December 19, 2006, Detectives Romero and Arciniega interviewed Vega at the Newton Station. The interview was recorded. At first, Vega denied any knowledge of the shooting at the Maple Market. Then, Vega said “Bandit, ” another Playboys gang member, was responsible. The interview was stopped and resumed later that day after Vega indicated that he wanted to speak with Detective Romero about what had happened. Vega’s interview was recorded and portions were played for the jury. The jury was provided with a transcript of the interview.
Vega told the detectives that Olloqui picked him up to go to the market. Vega stated that he previously had gone to the market with Olloqui to cash checks three times. On those occasions, Vega had waited outside while Olloqui cashed the checks. On the way to the market, they saw Cuellar. Olloqui asked Cuellar if he wanted to “make some money.” Cuellar said yes and got in the vehicle.
Olloqui, Vega, and Cuellar drove through the “hood” looking for another “homie” or gang member to help cash the check. They came upon Bautista, and they asked him if he “need[ed] some cash.” Bautista got into the vehicle. Bautista had a sawed-off shotgun in his backpack.
Cuellar said that if the market did not cash the check, they would rob the market. The four Playboys gang members drove to the market to “smoke it out”-i.e. to check it out. They parked on 31st Street and Cuellar and Bautista got out of the vehicle. Cuellar and Bautista entered the store. Vega knew that Cuellar and Bautista had weapons when they entered the market.
After Cuellar and Bautista got out of the car and walked to the market, Vega saw a “base head” (drug addict with nothing to do) staring at the vehicle. Vega told the person to “move on.” Shortly thereafter, Cuellar and Bautista ran back to the vehicle and got into the back seat. Cuellar said either “He shot him, he shot him, ” or “I shot him. I shot him, ” and they drove off. Olloqui drove back to the “projects” where he dropped off Vega, Cuellar, and Bautista.
Vega rested without calling any witnesses.
C. The Prosecution’s Evidence Presented To Cuellar’s Jury
On December 20, 2006, Detectives Romero and Arciniega searched Cuellar’s bedroom and found a.380-caliber semiautomatic pistol, a sawed-off shotgun, shotgun rounds, and a black back brace. Cuellar was taken to the Newton Station where Detectives Romero and Arciniega interviewed him. The interview was recorded and portions were played for Cuellar’s jury. The jury was provided with a transcript of the interview.
Cuellar told the detectives that he was a 51st Street gang member who went by the name “Minute.” During the interview, Detective Arciniega showed Cuellar photographs taken from the Maple Market surveillance video including an image of a man wearing a white T-shirt, black back brace, baseball cap, and gray pants, and holding a firearm. Cuellar identified himself as the man in the photograph.
Cuellar was armed with a gun Olloqui had given him. Bautista was armed with a shotgun. Cuellar walked up to the counter and tried to cash a check. The clerk was angry, and yelled something. The clerk threw the check at Cuellar and walked around the counter. Cuellar demanded that the clerk give him “everything, all the money.” Cuellar pointed the gun at the clerk and shot him.
D. Defense Evidence
In his defense, Cuellar called Maira Ramirez, his 14-year-old sister. Ramirez testified that on November 2, 2006, Cuellar lived with her, her mother, and her sister. Ramirez did not go to school that day and it was Cuellar’s task to watch her. Cuellar was home when Ramirez awoke at 9:00 a.m. Cuellar’s girlfriend Christina arrived around 11:00 a.m. Around 1:00 or 1:30 p.m., Ramirez and Cuellar picked up their sister from her school across the street and returned home. Cuellar remained home until he and his family took his girlfriend home around 7:00 p.m. Ramirez had no doubt that Cuellar was with her from the morning until the evening on November 2, 2006.
Cuellar testified in his own behalf. Cuellar admitted that he was a member of the 51st Street gang. On November 2, 2006, Cuellar was at home taking care of his sister. Cuellar’s girlfriend came over around 11:00 a.m. Around 1:40 or 1:50 p.m., Cuellar and Maira picked up their sister from school. After returning home, Cuellar and Christina stayed in his room talking and listening to music. Between 7:00 and 8:00 p.m., Cuellar’s family took Cuellar’s girlfriend home.
On December 20, 2006, Cuellar was arrested and his home was searched. Cuellar testified that the guns and ammunition found in the search belonged to him. Cuellar was taken to the station and put in a holding cell. Detective Arciniega spoke with Cuellar while he was in the holding cell. The detective showed Cuellar photographs from a video and told Cuellar “everything” that had happened. The detective told Cuellar that he knew Cuellar had killed the clerk and that he wanted Cuellar to confess. The detective told Cuellar that if he did not confess to the murder, “they were going to arrest [his] mother for the guns and take away the kids and apartment.”
Cuellar testified that Detective Arciniega took him to an interview room. Cuellar acknowledged that during the recorded interview he admitted to committing the murder and that he implicated other people. Cuellar explained that he confessed because he did not want his mother to be arrested or his sisters to be taken away. Cuellar testified that he was not the person depicted in the video, he did not shoot and kill Simon Khalil, he did not have anything to do with the shooting, and he did not know anyone who had anything to do with the shooting.
Patricia Fant, a forensic firearms examiner, testified that she examined the expended bullet, expended cartridge case, and test fires prepared in this case. Fant opined that the bullet and cartridge case were not fired from the same firearm that fired the test fires. Dr. Mitch Eisen, a psychologist, testified about the various factors that affect memory and that can cause erroneous identifications.
E. The Prosecution’s Rebuttal Evidence
Detective Arciniega testified that he was not alone with Cuellar in the holding cell and did not show Cuellar photographs and surveillance video stills while Cuellar was in the holding cell. Detective Arciniega did not tell Cuellar that if he did not confess to murdering the clerk his mother would be arrested and his sisters would be taken away.
Diana Paul, the Los Angeles Police Department criminalist, testified that she listened to Fant’s testimony and that her opinion had not changed. Paul agreed with the facts to which Fant testified, but disagreed with Fant’s interpretation of those facts and the “strength” of Fant’s opinion.
DISCUSSION
I. Sufficient Evidence Supports Vega’s Convictions For Felony Murder, Burglary, Attempted Robbery, And Forgery
Vega contends that his felony murder, burglary, attempted robbery, and forgery convictions must be reversed because there is insufficient evidence that he intended to aid and abet the commission of those offenses. We disagree.
A. Standard of Review
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) “We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom.” (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) “We ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation].... ‘[I]t is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]’” (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
B. Relevant Principles
The parties to a crime are principals and accessories. (§ 30.) “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission... are principals in any crime so committed.” (§ 31.)
“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 561.) “An aider and abettor’s derivative liability for a principal’s criminal act has two distinct prongs: First, the aider and abettor is liable for the particular crime that to his knowledge his confederates are contemplating. Second, the aider and abettor is also liable for the natural and probable consequences of any criminal act he knowingly and intentionally aids and abets, in addition to the specific and particular crime he and his confederates originally contemplated.” (People v. Brigham (1989) 216 Cal.App.3d 1039, 1052.)
“Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.” (In re Michael T. (1978) 84 Cal.App.3d 907, 911; People v. Richardson (2008) 43 Cal.4th 959, 1024.) “However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’ [Citation.]” (Ibid.)
Vega’s statements in his interview with Detectives Romero and Arciniega are evidence from which jurors reasonably could conclude that Vega knew of his companions’ criminal purpose in going to the Maple Market. In his interview, Vega said that Olloqui asked him to go with him to the Maple Market to cash a stolen check. On three previous occasions, Vega went with Olloqui to the Maple Market where Olloqui cashed stolen checks. Detective Romero testified that Vega said that when he and Olloqui came upon Cuellar, Olloqui asked Cuellar if he “wanted to make some money.” A similar inquiry was made of Bautista when he was contacted. According to Vega, Cuellar said that if the store would not cash the check, he and Bautista would rob the store.
According to the transcribed interview, Vega told the detectives that when they contacted Bautista, “We just started (Inaudible) what’s up homie? Do you need some cash (Inaudible) and then that’s when he had gone and that’s when (Inaudible)”.
Barnes’s testimony demonstrates that Vega intended to aid and aided in the commission of the offenses in the Maple Market. Barnes testified that he stopped on Maple Avenue about 12 feet from the vehicle in which Vega was a passenger. When Barnes had looked at Vega and Olloqui for about five to seven seconds, Vega said to Barnes, “Just keep walking. I’ll take care of you.” The jury reasonably might have interpreted Vega’s statement to Barnes as a threat and drawn the logical inference from Vega’s statement that Vega was serving as a lookout for the criminal activity in the Maple Market. The jury logically may have inferred that in that role Vega, by his statement to Barnes, intended to clear the area of witnesses, intended to clear the area of persons who might discover and interfere with his companions’ criminal activity inside the market, or intended to remove Barnes as a potential impediment to his and his companions’ escape. We must accept these logical inferences. (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
Vega asserts that Barnes was not credible because Barnes was in jail for possession of controlled substances when he testified; Barnes has multiple felony convictions for drug-related offenses, burglaries, and robberies; and Barnes’s identifications were inconsistent. Barnes’s credibility was a matter for the jury, and not for us, to decide. (People v. Young, supra, 34 Cal.4th at p. 1181.) Moreover, Barnes’s testimony can be viewed as credible because Vega’s statements in his interview with Detectives Romero and Arciniega corroborated Barnes’s testimony. Detective Romero testified that Vega stated in his interview that he saw a “base head staring at the vehicle” and that he told that person to “move on.”
Vega contends that the transcription of Vega’s interview with the detectives, although unintelligible, demonstrates that it was Olloqui who had the exchange with Barnes. The transcript shows that Detective Arciniega asked Vega about a person who walked up to the vehicle and checked out Olloqui and Vega while they were sitting and waiting. Vega responded, “Yeah (Inaudible) like, ‘What’s up?’ And like the (Inaudible) they’re like going, ‘Just-just go away. I mean, they got two.’” The transcript of the interview does not contradict Barnes’s account of his interaction with Vega or Detective Romero’s account of his interview with Vega. Moreover, the jury, and not we, resolves any conflict or inconsistency in the evidence. (People v. Young, supra, 34 Cal.4th at p. 1181.)
Finally, Vega argues that if Barnes’s testimony is believed, the statement attributed to him was a warning to Barnes to keep walking in order to protect Barnes from the real perpetrators-Cuellar and Bautista-who were “intent on robbing it.” Vega’s interpretation-that he was protecting Barnes from his companions-is implausible. Even if Vega’s interpretation of the statement were reasonable, it was not the only reasonable interpretation of the statement. As discussed above, the statement reasonably was interpreted as a warning intended to remove Barnes from the area to facilitate the commission of the offenses in the Maple Market. Resolution of such competing interpretations of the evidence was the jury’s task, not ours. (People v. Avila, supra, 46 Cal.4th at p. 701; People v. Medina, supra, 46 Cal.4th at p. 919; People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
Accordingly, sufficient evidence supports the jury’s determination that Vega intended to aid and abet the commission of the offenses at the Maple Market.
II. The Prosecution’s Gang Expert Properly Testified Based On A Hypothetical Question
Vega contends that the prosecutor posed a hypothetical question to Officer Berdin, the prosecution’s gang expert that exactly tracked the prosecutor’s view of the facts in this case. Based on that hypothetical, Officer Berdin was improperly permitted to testify that Vega actively participated in the crimes and did so to benefit his gang. Vega contends that whether he aided and abetted the crimes was a jury question that Officer Berdin should not have been permitted to answer. The gang expert’s testimony was proper.
On September 15, 2010, the California Supreme Court granted review in People v. Vang S184212, which deals with the issue Vega raises. The Supreme Court’s docket indicates that the issues it will consider are: “(1) whether the Court of Appeal correctly found that the trial court erred in permitting the use of hypothetical questions of the prosecution expert witness and (2) if so, whether the Court of Appeal correctly found the error to be harmless.”
A. Background
The prosecutor examined Officer Berdin, the prosecution’s gang expert as follows:
We set forth the prosecutor’s examination of Officer Berdin based on the posed hypothetical facts in its entirety.
“[Prosecutor]: Assume that on November 2, 2006, four Playboy gang members decide to go to the Maple Market, to the Maple Liquor and Market located at 3000 South Maple Avenue. And you have two older gang members, 27 and 28 years old, that pick up two younger gang members that are 16 and 17 years old, and they head over to the Maple Liquor and Market.
“The older gang members wait in the car at the corner of the street and have the younger gang members go into the store, and the two younger gang members, one goes in with a semi-auto firearm, the other goes in with a shotgun and back brace. And assume that the plan is to either cash a stolen check or rob the location.
“And have you
“Before I continue with that hypothetical, have you reviewed a surveillance video related to this case depicting a surveillance video related to this case depicting a shooting at the Maple Liquor and Market that occurred on November 2nd, 2006?
“[Officer Berdin]: Yes.
“[Prosecutor]: Well, continuing with my hypothetical, assume that the two younger gang members go into the Maple Market and Liquor Store. One of them, the one with the semiautomatic firearm, presents the check to the clerk. The clerk takes the check and tosses it right back to the gang member and then comes around the counter and confronts both gang members and appear to be agitated in some way.
“And immediately, the person, the gang member that tried to cash the check, removes a semiautomatic firearm and points it directly at the clerk. The other gang member that’s behind removed the sawed-off shotgun and also points it at the clerk.
“And you can assume the facts that you viewed on that surveillance video. The gang member that’s pointing the semiautomatic firearm picks up the check, continues to point the gun up and down at the head and chest of the clerk. The clerk at no point strikes the gang member. And at one point, the person with the semiautomatic firearm looks around and then shoots one shot from a few feet away into the abdomen of that particular clerk.
“Assume that at some point prior to the shooting, the person with the semiautomatic firearm also pushed the clerk back and forth as the clerk tried to approach him. Assume that the person is shot and killed and that both young gang members leave the location and run back to the waiting vehicle with the two older gang members.
“Assume that one of the older gang members while they were waiting in that vehicle, sees someone looking at them and tells that person, ‘Keep on walking. I’ll take care of you, ’ and that person continues to walk away. After waiting there for a few moments, they see two individuals, two young gang members jump into the vehicle, and they flee the location and they go wherever they go.
“Assuming those facts and those are all Playboy gang members, do you have any opinion as to whether that particular-those particular crimes, whether the attempted robbery or passing of the check or that murder, are committed in association with the Playboys gang?
“[Officer Berdin]: Yes.
“[Prosecutor]: Why would you say that?
“[Officer Berdin]: You’ve got four Playboy gang members in a vehicle committing this crime, tells me at that point, especially going in to cash these checks, that it’s somewhat organized. The two older individuals or older individuals within the gang themselves generally will organize this type of crime.”
At this point, Vega’s counsel objected and asked to approach. As sidebar, Vega’s counsel stated: “I am going to object to any further testimony by this officer as to what the motivations of each of the individuals in the vehicle was. I mean he can testify that this is for the purposes of a street gang and it was in association with a street gang. But for him to go in to testifying as to what the individual modus and direction of each of these individuals is is beyond his scope of expertise. It’s simply speculative and guessing on his part.”
The trial court responded, “I am going to overrule the objection. I think he’s entitled to give an opinion as to how older gang members manipulate the younger gang members, and that’s what he’s talking about. So I’m going to overrule the objection.”
The prosecutor resumed his examination of Officer Berdin:
“[Prosecutor]: You were saying about the older gang members that were in the car. In you expert opinion, given the amount of gang members you’ve talked to, what is-what would you say is their role in that particular hypothetical that I presented to you?
“[Officer Berdin]: In that particular hypothetical, as far as them staying in the vehicle-this actual crime took place in another Hispanic gang’s territory or which is claimed by another Hispanic gang. They’re not only utilizing this protection at that point, but their rules are also to verify that the crime in which they responded to this location is committed by these younger gang members.
“[Prosecutor]: What do you mean ‘verify that the crime is being committed?’
“[Officer Berdin]: Usually older gang members will go and make sure that the crime is committed so that they can verify the trust factor or the allegiance that these individuals may show to the gang itself.
“[Prosecutor]: How about the younger gang members? How would you characterize the actions taken by let’s say the two individuals that went into the store, if you see those acts played out as you did on that video?
“[Officer Berdin]: Again, two younger members walking into a store like this to commit this crime, they’re not only asked to do these types of crimes, they actually want to do these types of crimes to earn their respect, to earn their status within the gang.
“[Prosecutor]: So let me ask you, are these younger gang members being always forced into committing these acts?
“[Officer Berdin]: No, they’re not always forced into it.
“[Prosecutor]: What-how would you characterize the two young gang members in the particular hypothetical I presented to you given what you viewed on the surveillance video?
“[Officer Berdin]: They actually were there to commit this act and that they-it appeared to me that they wanted to commit this act themselves and didn’t appear to be forced into this type of situation.”
Cuellar’s counsel objected that Officer Berdin was no longer testifying based on the hypothetical. The trial court overruled the objection.
The prosecutor resumed his examination of Officer Berdin:
“[Prosecutor]: What do you base that opinion on?
“[Officer Berdin]: Just the fact these are two younger members. If they don’t commit this crime and show that they are capable of committing this type of crime, they are going to-they’re going to be looked down upon amongst not only the two older members, but the gang itself.
“[Prosecutor]: How would a gang member who is armed with a gun, goes in to commit a robbery, how would he feel as far as his respect if the victim does not back down even though he’s brandishing a gun? How does that affect his respect in front of another gang member?
“[Officer Berdin]: Oh, it would minimize his respect completely. At that point, one of these individuals would show their conviction with that and to be just pushed-I don’t believe that the store clerk in this instance had a gun, but did attempt to approach the young gang members. At that point, if he believes that store clerk is not intimidated, just by those factors, he’s definitely going to be looked down upon and disrespected.
“[Prosecutor]: What would happen to the reputation of that gang member with the gun if after the victim in that particular case did not back down, even though he brandished the gun, if he just ran away and did not do anything about the way the victim acted? How would the gang member, including the individual that was with him at the store, what would happen to the reputation of the person with the gun within the gang?
“[Officer Berdin]: Oh, he would be looked down upon by the gang itself, not respected at all. If word is passed on the street, the gang itself will not be respected just due to the fact its members failed to commit these types of acts, especially feeling that they’ve been disrespected in that type of manner.
“[Prosecutor]: Do you feel that all four individuals in your opinion participated in these particular crimes attempted?”
Vega’s counsel objected that the prosecutor’s question went beyond the hypothetical and beyond Officer Berdin’s expertise. The trial court stated that it had not yet heard the complete question.
The prosecution resumed his examination of Officer Berdin:
“[Prosecutor]: In the hypothetical that I presented, do you have an opinion as to whether everyone played some type of role?
“[Officer Berdin]: Yes.
“[Prosecutor]: What is that opinion?
“[Officer Berdin]: That they did.”
Vega’s counsel objected and moved to strike on the grounds that the subject matter of the question was for a jury to decide and not a matter of opinion testimony. The trial court overruled the objection.
The prosecutor resumed his examination of Officer Berdin:
“[Prosecutor]: How does this particular crime benefit the Playboys gang, trying to commit an attempted robbery or this murder? How does that benefit the gang in any way?
“[Officer Berdin]: Again, it gains the respect level of the gang itself, gains respect for the individuals that have committed this act. Any monetary compensation that is gained from this is going to be utilized later for a variety of reasons.
“Again, the fact that they can go into another neighborhood or to an area which is claimed by a different Hispanic gang, commit his act, again, like I said, within that-those neighborhoods, words or word will spread throughout the gangs themselves, the gang itself will gain respect from rival gangs within its boundaries.
“[Prosecutor]: And would these older gang members with the car, that are waiting in the car, would they be in your opinion unaware that the younger members are going into a store with firearms to commit these crimes?
“[Officer Berdin]: Absolutely not.
“[Prosecutor]: Why not?
“[Officer Berdin]: Those types of instances where you’ve got four gang members in a car, if the younger gang members are armed, and say while they’re responding to the location, are pulled over by police, those younger gang members that will be arrested, they’re assuming the duty of carrying these weapons and they will take responsibility of this. Again, will show their allegiance to the gang, and that simply will gain respect with these older members.
“[Prosecutor]: So older members in your opinion would be aware of the weapons and what’s being carried within their vehicle.
“[Officer Berdin]: Absolutely.
“[Prosecutor]: And lastly, what would happen to the reputation of that gang member that shot and killed that store clerk let’s say if he were not caught? What would happen to his reputation within the gang?
“[Officer Berdin]: Again, the more violent the act, the more respect within the gang you’ll obtain. And like I said earlier, respect is probably most important within the gang itself.”
B. Standard of Review
We review a trial court’s admission of expert testimony for an abuse of discretion. (People v. Ward (2005) 36 Cal.4th 186, 210.)
C. Relevant Principles
A gang expert properly may testify about a defendant’s motive and intent as related to the gang. (See People v. Funes (1994) 23 Cal.App.4th 1506, 1518; People v. Killebrew (2002) 103 Cal.App.4th 644, 657.) Similarly a gang expert properly may testify about “whether and how a crime was committed to benefit or promote a gang.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.) A gang expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, if such matters are beyond the jury’s common experience. (People v. Valdez (1997) 58 Cal.App.4th 494, 506-509; People v. Killebrew, supra, 103 Cal.App.4th at p. 651, citing Evidence Code section 805 [“Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible”].) A gang expert may not opine on whether a “specific individual had specific knowledge or possessed a specific intent.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 658; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551.)
The trial court did not abuse its discretion in admitting Officer Berdin’s challenged testimony. (People v. Ward, supra, 36 Cal.4th at p. 210.) Officer Berdin testified properly based on hypothetical facts and did not testify about specific persons. Officer Berdin did not testify that Vega participated in the charged offenses or that Vega intended to benefit the gang through his participation. Vega asserts that the prosecutor asked Officer Berdin whether any of the crimes were committed to benefit the gang and that Officer Berdin responded that they were. Then, according to Vega, Officer Berdin explained how and why the four Playboys gang members acted to benefit the gang. Vega misconstrues the record. The prosecutor and Officer Berdin addressed whether the hypothetical crimes were committed in association with the Playboys gang. The colloquy was as follows:
“[Prosecutor]: Assuming those facts and those are all Playboy gang members, do you have any opinion as to whether that particular-those particular crimes, whether the attempted robbery or passing of the check or that murder, are committed in association with the Playboys gang?
“[Officer Berdin]: Yes.
“[Prosecutor]: Why would you say that?
“[Officer Berdin]: You’ve got four Playboy gang members in a vehicle committing this crime, tells me at that point, especially going in to cash these checks, that it’s somewhat organized. The two older individuals or older individuals within the gang themselves generally will organize this type of crime.”
Officer Berdin’s opinion that the older gang members in the vehicle would have known that the younger gang members were armed may have run afoul of the rule in People v. Killebrew, supra, 103 Cal.App.4th 644 that an expert may not testify about a defendant’s specific knowledge. The expert testimony to which the defendant in Killebrew objected was that “when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652.) The court of appeal held that such testimony was an improper opinion on the ultimate issue in the case and should have been excluded. (Id. at p. 658.) Vega did not, however, object to this testimony in the trial court and makes no specific claim on appeal with respect to this specific testimony.
III. The Trial Court Properly Instructed Vega’s Jury With CALJIC No. 2.71.7
Vega contends that the trial court erred in instructing his jury with CALJIC No. 2.71.7 because the instruction was not supported by evidence of specific intent. The trial court’s error, Vega contends, deprived him of his right to a properly instructed jury, a fair trial, and constitutional due process. The trial court properly instructed the jury.
A. Standard of Review
We review claims of instructional error de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)
B. Relevant Principles
CALJIC No. 2.71.7 provides, “Evidence has been received from which you may find that an oral statement of intent, plan, motive or design was made by the defendant before the offense with which he is charged was committed. [¶] It is for you to decide whether the statement was made by the defendant. [¶] Evidence of an oral statement ought to be viewed with caution.”
“The trial court has a duty to instruct the jury on all principles of law relevant to the issues raised by the evidence [citation] and a correlative duty to refrain from instructing on irrelevant and confusing principles of law [citation].” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250.) CALJIC No. 2.71.7 is a standard cautionary instruction, intended for a defendant’s benefit, which must be given sua sponte where applicable. (People v. Zambrano (2007) 41 Cal.4th 1082, 1157, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Vega’s defense counsel objected to CALJIC No. 2.71.7 on the ground that “the instruction says that intent, plan, motive or design is made by the defendant before the offense, which seems to imply that it was the defendant that made the statement. But what he was relying on in that interview was what somebody else said, not him.” The prosecutor argued that the instruction addressed Vega’s statement to Olloqui that he would go with Olloqui but that he would not be the person who cashed the check. The trial court overruled Vega’s objection.
Vega contends that the trial court erred in instructing the jury with CALJIC No. 2.71.7 because “it was quite clear that appellant Vega did not intend to participate in the forgery, burglary, or attempted robbery. Although subjected to an intense interrogation, all Vega ever told the detectives was that he just went along for the ride. Vega was emphatic that he had no intention of cashing the check, although he did admit that he had accompanied Olloqui when Olloqui cased [sic] three checks in the past.”
The trial court did not err in instructing the jury with CALJIC No. 2.71.7. According to Detective Romero, Vega told him and Detective Arciniega that Olloqui wanted Vega to go to the store to cash some checks; that Vega stated he would go but would not cash the checks; and that when he and Olloqui came upon Bautista, “they” asked Bautista if he “need[ed] some cash.” In context, Vega’s inquiry of Bautista can be interpreted as a solicitation to participate in cashing the stolen check and is evidence of an oral statement of intent, plan, motive or design. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1136-1137; People v. Farmer (1989) 47 Cal.3d 888, 919, abrogated on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
IV. Sufficient Evidence Supports The Section 186.22 Gang Enhancement
Relying on People v. Williams (2008) 167 Cal.App.4th 983, Vega contends that the section 186.22 gang enhancement must be vacated because insufficient evidence establishes that the predicate offenses presented by the prosecution were committed by members of Vega’s 46th Street clique within the Playboys gang. Sufficient evidence supports the section 186.22 gang enhancement.
The evidence showed that Vega was a member of the 46th Street clique of the Playboys gang. In his opening brief, Vega’s counsel on appeal inadvertently stated that Vega was a member of the 51st Street clique.
A. Background
During trial, Vega, relying on People v. Williams, supra, 167 Cal.App.4th 983, objected to the admission of evidence of predicate offenses in support of the gang enhancement that were not committed by members of Vega’s “clique.” Vega stated his belief that the evidence would establish that Vega was a member of the 36th Street clique. Vega argued that the Playboys gang had 1200 members and that ascribing acts that were committed by the larger gang to a particular clique would be proving guilt by association. The prosecutor responded, in part, that he would present evidence that would show the connection between “all these cliques and how all these cliques are all part of the Playboys gang.” The gang expert would “render an opinion as to how all these cliques are associated with the main gang.” The trial court overruled the objection.
Later, Officer Berdin testified that on December 7, 2007, Playboys gang member Victor Perez was convicted of attempted murder in case number BA310831 for an attempted murder that occurred on July 7, 2006; on April 4, 2007, Playboys gang member Jose Segoviano was convicted of robbery in case number BA309220 for a robbery that occurred on September 13, 2006; and on August 31, 2005, 46th Street clique Playboys gang member Jose Ramos was convicted of possession of cocaine base for sale in case number BA285080, for possession that occurred on June 9, 2005.
B. Relevant Principles
The law that governs a claim that insufficient evidence supports a conviction also applies to a claim that insufficient evidence supports a gang enhancement finding. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) To prove a gang enhancement allegation under section 186.22, subdivision (b)(1)(A), “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ (§ 186.22, subd. (b)(1) and former subd. (c).) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Section 186.22, subdivision (e) provides that “‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” Section 186.22, subdivision (e)(1) through (33) lists the predicate offenses.
In People v. Williams, supra, 167 Cal.App.4th 983, the defendant was convicted of murder (§ 187) with the active gang member special circumstance (§ 190.2, subd. (a)(22)) and active participation in a criminal street gang (§ 186.22, subd. (a)). (Id. at p. 985.) In support of the charges, the gang expert testified that the “Peckerwoods” were a criminal street gang and that smaller groups, such as the “Small Town Peckerwoods, ” were factions of the Peckerwood organization. (Id. at p. 988.) The expert’s opinion was based on “commonality of name and ideology, rather that concerted activity or organizational structure.” (Ibid.) On appeal, the defendant contended that there was no evidence that he was an active participant in any group other than the Small Town Peckerwoods and that any gang finding had to be based on that entity and not on the larger Peckerwoods gang. (Id. at p. 987.) The court of appeal agreed and reversed the special circumstance finding and the gang conviction. (Id. at pp. 988-989.)
Addressing the “the relationship that must exist before a smaller group can be considered part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang” the court in People v. Williams, supra, 167 Cal.App.4th at page 985, stated that “something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization.” (Id. at p. 988.) The court held that the prosecution failed to make such a showing. (Ibid.)
Based on the facts presented at trial, People v. Williams, supra, 167 Cal.App.4th 983 is distinguishable. Absent in People v. Williams was any evidence of “collaborative activities” among the various Peckerwood factions. (Id. at p. 988.) In this case, there was evidence of collaborative activities by members of different cliques within the Playboys gang. Officer Berdin testified that Vega, Bautista, Cuellar, and Olloqui were active members of the Playboys gang in November 2006. Vega’s tattoos indicated that he was a member of the 46th Street clique of the Playboys gang, Bautista’s and Cuellar’s tattoos indicated that they were members of the 51st Street clique of the Playboys gang, and Olloqui’s tattoos indicated that he was a Playboys gang member without indicating any particular clique. The evidence showed that these members of different Playboys cliques engaged in “collaborative activities” by joining together to commit the offenses at the Maple Market.
V. The Trial Court Did Not Err In Ruling On Cuellar’s Pitchess Motion
Prior to trial, Cuellar filed a Pitchess motion asking for discovery of complaints in Detectives Romero’s and Arciniega’s personnel files that the detectives had threatened suspects to coerce confessions. In support of his motion, Cuellar alleged that Detectives Romero and Arciniega coerced him to confess falsely to Khalil’s murder by threatening to have his younger sister taken from his mother and to cause his mother to be evicted from her apartment and put out on the street. On September 25, 2008, the trial court conducted an in camera hearing to review the detectives’ personnel files for discoverable information. Following that hearing, the trial court found that certain information concerning Detective Arciniega was discoverable and ordered that the information be turned over to Cuellar. The trial court found no discoverable information as to Detective Romero.
Because Cuellar’s allegedly coerced confession was presented only to Cuellar’s jury and not to Vega’s jury, Vega’s purported joinder in issues raised by Cuellar that might inure to Vega’s benefit would not, by its terms, apply to this issue.
Citing People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232, Cuellar requests that we conduct an independent review of the in camera proceedings to determine whether discoverable personnel records were withheld incorrectly. In connection with his request, Cuellar filed a motion to augment the record on appeal to include Detectives Romero’s and Arciniega’s personnel records that the trial court reviewed as well as the information disclosed to Cuellar subject to a protective order.
Because the peace officer personnel records reviewed on September 25, 2008, by the trial court were not marked as exhibits, we ordered the trial court to conduct record correction proceedings. Pursuant to that order, the trial court was to conduct an in camera hearing to correct the omission in the record and to file a report with this court that included, if possible, copies of the missing peace officer personnel records reviewed by the trial court. Also pursuant to that order, the court reporter was to file under seal a transcript of the in camera hearing.
On November 9, 2010, the trial court conducted an in camera hearing during which representatives of the Los Angeles Police Department’s Risk Management Group and the City Attorney’s office produced complaint records concerning Detectives Arciniega and Romero. The trial court examined the produced records and confirmed that they were the records it reviewed on September 25, 2008. A report of the in camera hearing, the peace officer personnel records reviewed at the hearing, and the reporter’s transcript of the hearing were filed with this court.
We have reviewed the sealed transcripts of the in camera hearings on September 25, 2008, and November 9, 2010, and the peace officer personnel records reviewed at those hearings by the trial court. Based on our independent examination of those transcripts and peace officer personnel records, we conclude that no discoverable personnel records were withheld. Accordingly, the trial court did not abuse its discretion in refusing to order the production of the detectives’ personnel records beyond the records that the trial court ordered produced. (See People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221 [a trial court’s determination on the discoverability of police personnel records is reviewed for abuse of discretion].)
VI. Sufficient Evidence Supports The Jury’s Finding That Cuellar Had Personal Knowledge That Members Of The Playboys Gang Engaged In A Pattern Of Criminal Activity
Cuellar contends that insufficient evidence supports the active gang member special circumstance (§ 190.2, subd. (a)(22)) because the evidence fails to show that he knew that Playboys gang members engage in or had engaged in a pattern of criminal activity. To demonstrate such knowledge, Cuellar contends, the evidence had to show that he knew that Playboys gang members had committed two or more of the offenses specified in section 186.22, subdivision (e) on two or more occasions or by two or more persons with the most recent of those offenses occurring within three years after a prior offense. Respondent contends that “knowledge” is not an element of the active gang member special circumstance and that substantial evidence demonstrated Cuellar’s knowledge. The law that governs a claim that insufficient evidence supports a conviction also applies to a claim that insufficient evidence supports a special circumstance finding. (People v. Jennings (2010) 50 Cal.4th 616, 638.)
Because the prosecution dismissed the active gang member special circumstance as to Vega, Vega’s purported joinder in issues raised by Cuellar that might inure to Vega’s benefit would not, by its terms, apply to this issue.
The criminal street gang special circumstance in section 190.2, subdivision (a)(22) applies when “The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” CALJIC No. 8.81.22 provides, in pertinent part, “To find that the special circumstance ‘intentional killing by an active street gang member’ is true, it must be proved: [¶] 1. The defendant intentionally killed the victim; [¶] 2. At the time of the killing, the defendant was an active participant in a criminal street gang; [¶] 3. The members of that gang engaged in or have engaged in a pattern of criminal gang activity; [¶] 4. The defendant knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and [¶] 5. The murder was carried out to further the activities of the criminal street gang.... [¶]... [¶] ‘Pattern of criminal gang activity’ means the commission of, or attempted commission of, or conviction of two or more of the following crimes, namely, possession of cocaine base for the purpose of sales, attempted murder and assault with a firearm, provided at least of one those crimes occurred after September 26, 1988 and the last of those crimes occurred within three years after a prior offense, and the crimes are committed on separate occasions, or by two or more persons.”
Assuming without deciding that a defendant’s knowledge that his fellow gang members engaged in or have engaged in a pattern of criminal activity is an element of the active gang member special circumstance (compare section 186.22, subdivision (a) [“knowledge that its members engage in or have engaged in a pattern of criminal gang activity”] with section 190.2, subdivision (a)(22) [no specified knowledge element]), substantial evidence demonstrated that Cuellar knew that Playboys gang members engaged in a pattern of criminal activity. Officer Berdin testified that “respect” was the most important aspect of gang membership for Playboys gang members. Respect means that a gang member had earned his place in the gang, and that other gang members looked up to him and wanted to be like him. Playboys gang members strive to be respected by other members of their gang. A Playboys gang member earns respect by committing the crimes that were the gang’s primary activities. A juror reasonably could infer from Officer Berdin’s testimony that a Playboys gang member could not achieve respect within the gang without communicating to other members of the gang that he had committed such crimes and, accordingly, that Cuellar had knowledge of his fellow gang members’ criminal activities. We must accept such reasonable inferences. (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
Officer Berdin testified that 51st Street was a “clique” or subset of the Playboys gang within the Newton Division. Cuellar had tattoos that signified that he was a member of the 51st Street clique of the Playboys gang. Cuellar had “51st Street” tattooed on his back, a “5” tattooed on the back of his left arm and on his left triceps, a “1” tattooed on the back of his right arm and on his right triceps, and “51” tattooed on his lower leg. Cuellar committed the offenses at the Maple Market with Vega, Olloqui, and Bautista, all of whom were members of the Playboys gang. Three of the offenses committed at the Maple Market established a pattern of criminal activity by the Playboys gang (attempted robbery (§ 186.22, subd. (e)(2)), unlawful homicide (§ 186.22, subd. (e)(3)), and burglary (§ 186.22, subd. (e)(11)). Thus, there is substantial evidence that Cuellar knew that Playboys gang members engaged in a pattern of criminal activity.
VII. The Trial Court Properly Sentenced Cuellar To Consecutive Sentences For His Convictions For Burglary And Attempted Robbery
Cuellar contends that, pursuant to section 654, the trial court should have stayed the terms for his burglary and attempted robbery convictions. Cuellar argues that section 654 bars consecutive sentencing for the felony underlying a murder conviction based on the felony murder theory-one of the prosecution’s murder theories. Alternatively, Cuellar argues that the record does not support the trial court’s implied finding that he harbored multiple criminal objectives. The trial court did not err.
Vega’s cursory joinder to Cuellar’s 654 argument in his opening brief was insufficient to meet his burden on appeal to show error and prejudice. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) Vega attempts to correct this deficiency in his reply brief by providing, for the first time, argument and citation to authority. Because Vega’s failure to raise this issue properly in his opening brief effectively deprived respondent of the opportunity to answer, we deem this issue forfeited and will not consider it. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
Section 654, subdivision (a) provides, in pertinent part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “In Neal v. State of California (1960) 55 Cal.2d 11 [9 Cal.Rptr. 607, 357 P.2d 839], this court construed the statute broadly: ‘“Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.” [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ (Id. at p. 19, italics added.)” (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
“‘The question whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.’ ([People v.] Hutchins [(2001)] 90 Cal.App.4th [1308, ] 1312, 109 Cal.Rptr.2d 643.) The court’s findings may be either express or implied from the court’s ruling. (See People v. Blake (1998) 68 Cal.App.4th 509, 512, 80 Cal.Rptr.2d 308.) In the absence of any reference to Penal Code section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. (See, e.g., People v. Blake, supra, at p. 512, 80 Cal.Rptr.2d 308; People v. Osband (1996) 13 Cal.4th 622, 730-731, 55 Cal.Rptr.2d 26, 919 P.2d 640.) ‘“We must ‘view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” [Citation.]’ (Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313, 109 Cal.Rptr.2d 643.)” (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
When, as here, a jury has been instructed on murder under felony murder and premeditation and deliberation theories, a trial court is not precluded from finding that the defendant had separate objectives in committing the killing and the underlying felony. (People v. Osband, supra, 13 Cal.4th at pp. 730-731.) The appropriate standard in such a circumstance is whether substantial evidence was presented at trial that supports the trial court’s determination that the defendant harbored more than one objective. (Ibid.)
Viewing the evidence in the light most favorable to respondent, and presuming in support of the trial court’s imposition of consecutive sentences the existence of every fact the trial court reasonably could deduce from the evidence, substantial evidence supports the trial court’s implied finding that when Cuellar shot Simon Khalil he harbored an objective separate from the objective of burglarizing the market or of attempting to rob Khalil. (People v. Tarris, supra, 180 Cal.App.4th at pp. 626-627.) Officer Berdin, the prosecution’s gang expert, testified that gang members would look down on and not respect a fellow gang member who, when armed with a gun, failed to cause an unarmed victim to back down. Gang members would look down on and not respect a gang member who failed to take action in response to such a circumstance. If such a failure became known on the street, the gang would not be respected. Such testimony is substantial evidence that Cuellar’s objective in shooting Khalil was to preserve Cuellar’s honor and the honor of the Playboys gang and not to further the burglary of the store or attempted robbery of Khalil. Accordingly, the trial court did not err in imposing consecutive sentences for Cuellar’s burglary and attempted robbery convictions. (Ibid.)
VIII. Sentencing Error
In its oral pronouncement of sentence, the trial court sentenced Vega to concurrent terms of one-third of the middle term for his second degree commercial burglary (§ 459) and forgery (§ 476) convictions and the corresponding gang enhancements (§186.22, subd. (b)(1)(A)). We asked the parties to submit supplemental letter briefs addressing whether the trial court erred in imposing concurrent terms of one-third of the middle term rather than concurrent full middle terms for Vega’s burglary and forgery convictions and the corresponding gang enhancements such that the matter must be remanded for resentencing. (People v. Thompson (2009) 177 Cal.App.4th 1424, 1432; § 1170.1, subd. (a).) The parties agree, as do we, that the trial court erred and that the matter should be remanded for resentencing.
Vega’s sentencing minute order and abstract of judgment reflect concurrent full middle terms for Vega’s burglary and forgery convictions and the corresponding gang enhancements. Such a sentence, if imposed, would have been proper. However, where a trial court’s oral pronouncement of sentence differs from the minute order or abstract of judgment, the oral pronouncement governs. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1221.)
DISPOSITION
Vega’s sentence with respect to his second degree commercial burglary (§459) and forgery (§ 476) convictions and the corresponding gang enhancements (§ 186.22, subd. (b)(1)(A)) is reversed and remanded for resentencing. Cuellar’s abstract of judgment is ordered modified to reflect a conviction for second degree commercial burglary (§ 459) rather than a conviction for second degree robbery (§ 211). In all other respects, the judgments are affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.