Opinion
B220327 No. KA080646 No. KA081417
09-15-2010
THE PEOPLE, Plaintiff and Respondent, v. MANUEL ERNESTO LOPEZ, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendantand Appellant.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief AssistantAttorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L.Davis and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L. Davis and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed.
TURNER, P. J.
I. INTRODUCTION
Defendant, Manuel Ernesto Lopez, appeals from his conviction for first degree murder (Pen. Code, § 187, subd. (a)) and the jurors findings the killing was committed for the benefit of a criminal street gang (§ 186.22, subd (b)(1)(C)) and he discharged a firearm causing death. (§§ 12022.53, subds. (b), (c), (d), (e)(1).) Defendant also pled guilty to carjacking (§ 215, subd. (a)) and admitted the gun use (§ 12022.53, subd. (b)) and gang allegations related to that charge. (§ 186.22, subd. (b).) Defendant argues that the trial court improperly instructed the jury regarding aiding and abetting and admitted the testimony of Angel Gonzalez. Defendant further argues that there was insufficient evidence to support the gang enhancement and cumulative error requires reversal. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 1:30 a.m. on July 26, 2007, Bernarado Carrillo left the home of a friend identified only as "Jose." Mr. Carrillo drank four "beers" prior to leaving the residence but was not intoxicated. Mr. Carrillo was riding his bicycle. Mr. Carillo encountered an acquaintance, Fernando Mora, at the corner of Mission and San Antonio streets. Mr. Carrillo often saw Mr. Mora at a nearby 7-Eleven store. Mr. Mora began walking alongside Mr. Carrillo. As the two men proceeded along San Antonio Street approaching 9th Street, three Latino men and a Latina woman approached. The group consisted of defendant, Angel Gonzalez, Alfonso Reyes and Ralph Acevedo. Ms. Gonzalez was defendants girlfriend. This area was known to be within the territory of the local criminal street gang.
Mr. Reyes walked to within 2 feet of Mr. Carrillo. Mr. Reyes spoke to Mr. Carrillo. Mr. Carrillo was asked where he was from. Mr. Carrillo believed this questioned whether he belonged to a gang. Mr. Carrillo responded, "From nowhere." Neither Mr. Carrillo nor Mr. Mora gestured at or insulted the group of individuals in any way. Mr. Reyes then punched Mr. Carrillo in the face. Mr. Carillo fell off his bicycle. Mr. Mora appeared scared and began to walk away. Mr. Carrillo heard a gunshot. Defendant and his companions ran across the street and southbound on San Antonio Street. Mr. Mora, who was lying on his stomach in the street, said they "hit" him. Mr. Mora asked Mr. Carrillo to call an ambulance. Mr. Carrillo stopped a passing car. Mr. Carrillo asked the occupants of the car to call an ambulance. Mr. Carrillo could not see any blood on the street. Mr. Carrillo then left the scene. Mr. Mora died at the scene as the result of a gunshot wound. Arriving officers saw that Mr. Mora was clutching a pair of chrome scissors when his body was rolled over by firefighters.
Mr. Carrillo went to the Pomona Police Department a few days after the shooting. Mr. Carrillo spoke with Detective Danny Kono about what occurred. Detective Kono drove Mr. Carrillo to a place on San Antonio Street. Mr. Carillo was shown individuals one at a time as he sat with binoculars in the police patrol car. Mr. Carrillo identified Mr. Reyes and defendant as individuals involved in the shooting.
Detective Kono interviewed defendant regarding the shooting. Defendant stated that he and two other men and a woman left his home on Ninth Street toward San Antonio. The group saw an individual walking and another riding a bicycle. Detective Kono described their conversation: "He said that of the total of four people that were present, one of the individuals, which he described as youngsters, in his terminology, started to, quote, fuck with these guys. He said that the same individual asked the person on the bike where he was from and, ultimately, punched him or socked him or struck him. He stated that this individual was knocked off his bike, and he said that he, being [defendant], was going to or started to reach down to steal the bike, and then he heard a shot. So he was startled, and he ran away." Detective Kono elaborated on the gang member described as a "youngster" by defendant: "He described an individual, and he said he knew him as--I believe the nickname or moniker of Squeaks. He described him as a youngster trying to come up in the [local] gang." Defendant did not say anything about the victim having a weapon. Defendant also specifically said there was no self-defense issue involved in the shooting. The interview with defendant was recorded.
Detective Kono also conducted a recorded interview with Ms. Gonzalez, defendants girlfriend. Ms. Gonzalez did not indicate that she saw a weapon or something shiny around Mr. Moras waistband. Mr. Mora began yelling, "Oh, Im tired of you guys messing with me." Mr. Carrillo dropped his bicycle. Mr. Carrillo then began fighting with Mr. Reyes. Ms. Gonzalez did not know who fired the gun. The recording of the interview with Ms. Gonzalez was played at trial.
At trial, Ms. Gonzalez testified that she, Mr. Reyes, and Mr. Acevedo were at defendants house on July 26, 2007. Along with defendant, they all drank some beer before leaving to walk to her home. Ms. Gonzalez said that they encountered a group of five or six people at the intersection of Ninth and San Antonio Streets. The group split up as defendant and his companions approached. Two of the individuals continued down San Antonio Street. One man was on a bicycle. The other individual was walking. Ms. Gonzalez had seen that man who was walking panhandling around the park and the 7-Eleven store. That individual who was walking began yelling at defendant and the others. The person said he wanted to fight as he walked towards them. The man on the bicycle got off and began fighting with Mr. Reyes. The homeless man ran toward defendant and Ms. Gonzalez. As he did so, he removed something from his pocket. Ms. Gonzalez saw a "silver glare" and turned to run away. Ms. Gonzalez heard a gunshot from her group. Ms. Gonzalez saw the gun in defendants hand.
Ms. Gonzalez was asked if she had spoken to defendant by phone over the previous two years. Ms. Gonzalez estimated that she had spoken with defendant over 50 times by phone while he was in custody. Ms. Gonzalez denied having discussed fabricating evidence regarding her court testimony in those conversations. A tape recording of a conversation between defendant and Ms. Gonzalez was played at trial. In the tape recording, Ms. Gonzalez told defendant she had been visited by Horacio Jesse Rocha. Mr. Rocha was defendants uncle. Defendant asked what Mr. Rocha had told Ms. Gonzalez. Ms. Gonzalez replied: "Um... just fuckin... tell the truth and think about what Im gonna do and... umm... I think he wants to talk to me and... I dont know." Later in the recorded conversation, Ms. Martinez described one subject they had discussed, "About the self defense or whatever." When asked what Ms. Gonzalez had said about Mr. Reyes, she responded: "Oh. Nothing just that you and him and like... you know... and you told [Mr. Rocha] when youre out here... I dont know." Defendant responded: "I dont know what I should do. What do you think I should do? Ms. Gonzalez answered: "Umm...Well you can try to put it on... but if that doesnt work then... I dont know [defendant]. Like... I think there would be a chance that you would like... I dont know say that [unintelligible]... Well fuck [defendant] should I be fuckin saying anything over the phone? What the hell?"
Later, Ms. Gonzalez said, "But theres evidence that thats how it happened...." Defendant asked, "Ok well, who else is gonna say that... that happened?" Ms. Gonzalez responded: "Im sure thats what they would say. Umm... the guys... the guy." Defendant stated: "Well if they dont well fuckin Im gonna say nothing. Or I dont know... [unintelligible] I dont know what Im gonna do... [unintelligible]... thinking fuck." Ms. Gonzalez stated: "But... I dont know... its its just... Im saying theres fuckin evidence pointing to... you know, when that dude fuckin got caught... you know... when he was on the floor, in his hand was an eight-inch blade. [¶]... [¶] Why would that fool have that in his hand? Unless... Unless he was trying to do something... or he was trying to use it." Defendant responded: "Well yeah. Thats the way I have to go right? I dont know." Ms. Gonzalez stated: "But Im saying... you have to get [Mr. Reyes] to say it first." Defendant indicated: "He wants everything to go... go his way, but fuck that. [¶]... [¶] You know... and I cant even get a hold of him no more... you know... Its just like..."
Defendant instructed Ms. Gonzalez: "[C]all him and tell that you talked to me that... Im gonna go that route, but Im gonna need... Im need for them..." Ms.
Gonzalez answered, "To like back you up." In a subsequent conversation, defendant told Ms. Gonzalez: "Just call [Mr. Rocha] and tell him that uh... that Im gonna do that, that Im gonna plea self-defense, but Im gonna need for [Mr. Rocha] and them to fuckin be on my side you know." Later, defendant told Ms. Gonzalez: "I guess Im gonna have to go and say that then. I just want everything [unintelligible]... you know, so everybody can be on the same page. I dont know what [Mr. Rocha] is talking about."
Pomona Police Detective Michael Lange had worked for seven years as a Los Angeles police officer. Detective Lange had investigated gang crimes in Los Angeles. Detective Lange also worked in the Los Angeles Police Department and Federal Bureau of Investigation Metropolitan Gang Task Force. After joining the Pomona Police Department Detective Lange worked in a gang unit for eight years. In that capacity, Detective Lange became familiar with street gangs in the Pomona area, the types of crime they commit, and their territories and recruitment efforts.
Detective Lange had frequent contact with gang members in the Pomona area in both consensual encounters and in the course of investigating crimes, including the local gang in the area where the murder occurred. The local gang had been in existence since the 1940s and was the largest predominantly Latino gang in Pomona. The local gang had several rivals in the city. When rival gangs encounter one another, they usually state the name of their gang or "throw" gang signs. In response, the other gang typically does the same. Oftentimes, an assault or shooting follows. Detective Lange had investigated hundreds of crimes involving the local gang. Detective Lange was familiar with the territory, tattoos, clothing, graffiti, and gang signs used by the local gang.
Detective Lange testified that the gangs operate on four basic premises—respect, fear, intimidation and retaliation. The gangs instill fear and intimidation in other neighborhoods. The local gang in Pomona was involved in: narcotics possession and sales; possession and use of weapons; shootings; robberies; attempted murders; murders; and witness intimidation. When a gang member asks, "Where are you from?" it is an indication that the gang member suspects the other individual is from a different gang. Even if the individual responds, "Im not from anywhere" they will most likely be assaulted. Detective Lange testified the term "hood hopping" involves a gang member leaving one gang and joining another. Detective Lange was familiar with defendant. According to Detective Lange, defendant was a member of the rival gang. However, defendants family members lived in the area of the local gang. That familial connection could allow him to affiliate with the local gang. In addition, all imprisoned Latino gang members from Southern California become one gang while in prison. The parties stipulated that the local gang was a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Detective Lange was familiar with the two local gang members convictions. Benny Javier Aguirre was convicted on December 22, 2006, of murder and two counts of attempted murder. Juan Miguel Gonzalez was convicted on May 18, 2007, of robbery.
Detective Lange assisted in the investigation related to Mr. Aguirres convictions. Mr. Aguirre was a member of the local gang at the time he and others inside a car shot at three individuals after uttering the name of the local gang. Detective Lange was also familiar with Mr. Gonzalez. Mr. Gonzalez was a member of the local gang. Mr. Gonzalezs robbery conviction related to the armed robbery of an African-American man within the gang territory. Both of these crimes benefitted both the individual gang members as well as the criminal street gang.
Based upon a hypothetical scenario resembling the facts of this case posed to Detective Lange, he concluded that the assault and murder were committed for the benefit of the local gang. This was particularly true because the victims were asked where they were from. Those involved in the assault and shooting could go back to their gang and brag about their actions. Such actions are known as "putting in work" for the gang. This allows members to achieve stature within the gang. A further hypothetical question related that one member of a group of four individuals directed another to run home and get a gun. This suggested that the person directing the activity has more authority within the gang structure and can direct someone at a lower status to perform the task.
Defendant testified on his own behalf. Defendant, Ms. Gonzalez, Mr. Acevedo, and Mr. Reyes had been drinking beer on July 25, 2007. They were drinking at defendants home. Defendant also admitted that he was smoking marijuana. At approximately 1 a.m. on July 26, 2007, the four of them left to walk Ms. Gonzalez home. Defendant carried a.38 caliber loaded revolver in his waistband for his protection. Defendant had obtained the gun from a friend a few days earlier. No one else knew he had the gun. Although defendant belonged to a gang in a neighboring city, he was living with his mother in the local gang area. Mr. Acevedo and Mr. Reyes walked ahead of defendant and Ms. Gonzalez. Mr. Mora walked toward defendant. Defendant had prior confrontations with Mr. Mora at the nearby 7-Eleven store. Defendant had fought with Mr. Mora a week earlier. The fight occurred because Mr. Mora had disrespected defendants uncle. Mr. Mora was homeless. Mr. Mora "hung out" at the nearby park and asked people for money. Mr. Mora was often drunk and loud and cursed at others.
Mr. Mora approached defendant on July 26, 2007. Mr. Mora was with a man on a bicycle. Mr. Mora yelled out in Spanish that he was going to kill them and he was tired of them "messing with him." Mr. Mora appeared to be drunk by the way he was walking and he was slurring his words. Mr. Mora looked like he was going to pull something out of his pocket. Defendant saw the confrontation between Mr. Reyes and Mr. Carrillo but did not know what caused it. Mr. Mora continued to approach defendant. At that point, defendant feared for his safety and that of his companions. Mr. Mora neared defendant. Mr. Mora then pulled out a shiny object and swung at defendant. According to defendant, he was hit in the chest with a "soft hit" by the object that did not puncture him. Defendant feared that Mr. Mora would continue to fight. Defendant pulled out his gun. Defendant shot Mr. Mora once. Defendant ran home and hid the gun in the fireplace.
Defendant did not call the police. Defendant did not think the police would believe him because he was a gang member. Defendant spoke to Mr. Rocha about the incident. The following occurred: "Q. [D]id you tell [Mr. Rocha] about how Mr. Mora came at you with this silver object? [¶] A. Yes." Defendant sought the advice of Mr. Rocha. Mr. Rocha told defendant to tell the truth. Defendant denied telling Mr. Reyes to go get a gun or any other weapon. When defendant spoke with the detectives, he changed his story because he was afraid and did not trust them. Defendant also feared that Ms. Gonzalez, Mr. Reyes and Mr. Acevedo could be arrested.
Defendant explained his telephone conversations with Ms. Gonzalez involved those concerns. Defendant denied there was any effort to fabricate a story. Defendant spoke to Ms. Gonzalez about what he was going to do because he was scared. During that recorded telephone call, defendant mentioned "[T]heyre going to have to say what happened." Defendant meant that Mr. Reyes, Mr. Acevedo and Mr. Rocha would have to say what actually occurred. Defendant admitted he had lied to the detectives when he said he was "faded" or high on the night of the shooting. Defendant acknowledged that he had been a member of a neighboring area gang since age 13. Defendant also stated that Mr. Reyes was not a member of the local gang but hung out with local gang members.
When initially interviewed defendant made up the name of a "youngster" who allegedly was named "Squeaks" who shot Mr. Mora. At trial, defendant admitted he fabricated the moniker. Defendant also lied about the girl that was with him. Defendant did not tell the detectives about her. Mr. Mora had a weapon at the time of the shooting. Defendant acknowledged telling the detectives that Mr. Reyes punched Mr. Carrillo. Defendant also admitted telling the detectives Mr. Reyes tried to take Mr. Carrillos bicycle.
III. DISCUSSION
A. Aiding and Abetting Instruction
1. Overview
Defendant argues that the trial court improperly instructed the jury with CALCRIM No. 400 regarding aiding and abetting because it misstates California law, and is erroneous and misleading. Defendant further argues: "Under the jury instructions given, once the jury found that [Mr.] Reyes was guilty of first degree murder by shooting
[Mr.] Mora with deliberation and premeditation, and that [defendant] aided and abetted the homicide, the jurors would automatically find appellant guilty of first degree murder inasmuch as they were expressly directed that each participant was equally guilty of the same degree of homicide." Defendant argues the instruction as given violated his state and federal constitutional rights.
2. Forfeiture
Preliminarily, despite his argument to the contrary, defendant has forfeited his right to raise this issue on appeal. In the face of an identical argument, our colleagues in Division Two of this Appellate District held: "Generally, "[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Hart (1999) 20 Cal.4th 546, 622; see People v. Guerra (2006) 37 Cal.4th 1067, 1134.)... CALCRIM No. 400 is generally an accurate statement of law, though misleading in this case. [The defendant] was therefore obligated to request modification or clarification and, having failed to have done so, forfeited this contention." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.)
3. Any error in giving CALCRIM No. 400 was harmless in this case
In any event, we find any error in giving the instruction as reflected in the record was harmless. CALCRIM No. 400 was given as follows: "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 or 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 a perpetrator who committed it, so long as he has a requisite specific intent or mental state as required for that crime as stated elsewhere in these instructions." In People v. McCoy (2001) 25
Cal.4th 1111, 1115-1116, our Supreme Court discussed whether an aider and abettor of a first degree murder is always as equally guilty as the perpetrator. Our Supreme Court held an aider and abettor could be found guilty of a different crime or degree of homicide than the actual perpetrator of the killing. This could occur if the perpetrator and the aider and abettor have different mental states. Our Supreme Court held, "[A]n aider and abettors guilt for the intended crime is not entirely vicarious. Rather, that guilt is based on a combination of the direct perpetrators acts and the aider and abettors own acts and own mental state." (Id. at p. 1117.) Our Supreme Court concluded: "[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that persons guilt is determined by the combined acts of all the participants as well as that persons own mens rea. If that persons mens rea is more culpable than anothers, that persons guilt may be greater even if the other might be deemed the actual perpetrator." (Id. at p. 1122; see also People v. Nero (2010) 181 Cal.App.4th 504, 513-514; People v. Samaniego, supra, 172 Cal.App.4th at pp. 1164-1166.) In August 2009, CALCRIM No. 400 was revised to include brackets around the term "equally" and the Bench Notes state, "Before instructing the jury with the bracketed word "equally," the court should ascertain whether doing so would be in accord with the controlling principles articulated in People v. McCoy[, supra,] 25 Cal.4th [at pp.] 1115-1116 and People v. Samaniego[, supra,] 172 Cal.App.4th 1148, 1166." (Judicial Council of California Criminal Jury Instructions (2009-2010) CALCRIM No. 400, p. 167.) The April 2010 revision to CALCRIM No. 400 eliminates the term "equally" altogether. (Judicial Council of California Criminal Jury Instructions (April 2010 Supp., CALCRIM No. 400, p. 28.)
As our Division Two colleagues in Samaniego noted, "Though McCoy concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator, its reasoning leads inexorably to the further conclusion that an aider and abettors guilt may also be less than the perpetrators, if the aider and abettor has a less culpable mental state [Citation.] Consequently, CALCRIM No. 400s direction that [a] person is equally guilty of the crime [of which the perpetrator is guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it [citation], while generally correct in all but the most exceptional circumstances, is misleading [in a murder case] and should have been modified." (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1164-1165, citing People v. Woods (1992) 8 Cal.App.4th 1570, 1577.)
Here, defendant testified that Mr. Mora was shot in self-defense. Therefore, if his testimony was believed, the jurors rejected the self-defense argument and determined defendant was guilty of murder. As a result, the aiding and abetting instruction was of no consequence if defendants version of the killing was adopted. If, on the other hand, under the prosecutions theory, defendant told Mr. Reyes to go and get the gun. And Mr. Reyes then shot Mr. Mora. Under the prosecution theory, the jurors could appropriately determine the defendant was as culpable as Mr. Reyes.
Thus, use of CALCRIM No. 400 in this case was as harmless beyond a reasonable doubt and no prejudice resulted. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Williams (2001) 26 Cal.4th 779, 797.) We review the instructions as a whole to determine whether it is reasonably likely that the jury misconstrued the instructions given. (People v. Roybal (1998) 19 Cal.4th 481, 526-527; People v. Mendoza (1998) 18 Cal.4th 1114, 1134; People v. Frye (1998) 18 Cal.4th 894, 957, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248, People v. Castillo (1997) 16 Cal.4th 1009, 1014-1016.) In People v. Frye, supra, 18 Cal.4th at p. 957, the California Supreme Court held: "In conducting this inquiry, we are mindful that "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge."" (People v. Frye, supra, 18 Cal.4th at p. 957, quoting Boyde v. California (1990) 494 U.S. 370, 378; see also People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753.) The jury was also instructed with CALCRIM No. 401, which states: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] The perpetrator committed the crime; [¶]... [¶] The defendant knew that the perpetrator intended to commit that crime; [¶] Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [¶] The defendants words or conduct did, in fact, aid and abet the perpetrators commission of the crime." The California Supreme Court has consistently stated that on appeal: ""Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case." [Citation.]" (People v. Carey (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband (1996) 13 Cal.4th 622, 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) Moreover, the trial courts inclusion of the final clause in CALCRIM No. 400, "so long as he has a requisite specific intent or mental state as required for that crime" distinguishes this case from the instruction given in Samaniego and Nero.
B. Evidentiary Issues
Defendant argues the trial court improperly allowed the prosecutor to call Ms. Gonzalez as a witness. Defendant reasons it was apparent that she would commit perjury and thereby allow the prosecutor, Ian Phan, to introduce her prior unsworn statements. Defendant further argues the error violated his federal constitutional rights to due process. Defendant did not object to Ms. Gonzalezs testimony during the trial. As a result, defendant has forfeited the issue on appeal. The California Supreme Court has held: ""[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.]" [Citations.]" (People v. Williams (2008) 43 Cal.4th 584, 620, quoting People v. Seijas (2005) 36 Cal.4th 291, 301; see Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 434-435.) The same is true for federal constitutional claims. (See People v. Ervine (2009) 47 Cal.4th 745, 783; People v. Williams (1997) 16 Cal.4th 153, 250 [objection raised for the first time on appeal that admission of gang paraphernalia violated defendants associational rights under the First and Fourteenth Amendments waived when not presented in trial court].)
Notwithstanding the issue has been forfeited, defendants claim is meritless. Evidence Code section 1235 states, "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770 [witness competency]." In People v. Freeman (1971) 20 Cal.App.3d 488, 494-495, quoting California v. Green (1970) 399 U.S. 149, 155, our colleagues in the Court of Appeal for the Third Appellate District held: "[Evidence Code s]ection 1235 brings California among those jurisdictions to which... permit the substantive use of prior inconsistent statements on the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial. [Citation.] The witnesss recantation permits the inference that he has something to hide, and this inference provides the earlier version a measure of reliability. [] The jury may choose which version to believe or reject both versions altogether. When a litigant intentionally brings in the declarant for the purpose of eliciting a predictably false version, he is not misusing section 1235 but utilizing it for the very purpose it is designed to fulfill—that is, to open the door to a second witness with a conceivably reliable indicator of the actual events. The technique conforms to the letter and spirit of section 1235, which supplies fact-finders with a formerly unavailable means for uncovering the truth." In People v. Brown (1995) 35 Cal.App.4th 1585, 1597, our colleagues in the Court of Appeal for the Fourth Appellate District held: "Evidence Code section 770 expressly provides two alternative methods for presenting prior inconsistent statements of either that the declarant be provided an opportunity to explain or deny the statement or that he [or she] be kept available for further testimony. [Citation.]" In this case, Ms. Gonzalez was examined and cross-examined extensively regarding her prior statements to police. Ms. Gonzalez was excused subject to being recalled by either party. Defendant did call Ms. Gonzalez as a defense witness. At that time, she was questioned regarding her recorded phone conversations with defendant while he was in custody.
Defendant relies on People v. Morrison (2004) 34 Cal.4th 698, 716, and argues that the prosecutor knowingly presented false or perjured testimony from Ms. Gonzalez in order to later present her unsworn inconsistent statements made to the detectives. However, in Morrison our Supreme Court held: "[T]he prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. [Citation.]" (Ibid.; see also People v. Seaton (2001) 26 Cal.4th 598, 647; In re Jackson (1992) 3 Cal.4th 578, 595, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.) In fact, as set forth above, the prosecutor, Mr. Phan, did correct Ms. Gonzalezs testimony by way of questioning its truth or falsity as contrasted with her prior statements to police. Moreover, Ms. Gonzalezs testimony was not knowingly used against defendant to gain a conviction. Rather, Ms. Gonzalezs prior statements to police were used to impeach her testimony and secure a conviction. (See People v. Riel (2000) 22 Cal.4th 1153, 1181-1182 [allowing the witness and defendant to testify subject to cross-examination and impeachment by available evidence afforded defendant a fair trial and comported with due process]; People v. Morales (2003) 112 Cal.App.4th 1176, 1193 [there is no due process violation where the prosecutor discloses fully the falsity of the testimony].) The trial court could properly admit Ms. Gonzalezs testimony.
C. Substantial Evidence Supports The Gang Enhancement
Defendant argues there was insufficient evidence to support the jurors finding the murder was committed for the benefit of a criminal street gang. Defendant argues that even if the crime was committed for the benefit of the gang, there was insufficient proof that he acted with the required specific intent. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577,
631; People v. Johnson (1980) 26 Cal.3d 557, 576; see also People v. Wilson (2008) 44 Cal.4th 758, 806.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond(1969) 71 Cal.2d 745, 755.) The same standard applies to a claim of insufficiency of the evidence to support a gang enhancement. (People v. Leon (2008) 161 Cal.App.4th 149, 161; People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
Section 186.22 provides in relevant part: "(b)(1) [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished.... [¶]... [¶] (e) As used in this chapter, 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: [¶]... [¶] (2) Robbery.... [¶] (3) Unlawful homicide...." The Court of Appeal has held: "[T]he criminal street gang component of a gang enhancement requires proof of three essential elements: (1) that there be an ongoing association involving three or more participants, having a common name or common identifying symbol; (2) that the group as one of its primary activities the commission of one or more specified crimes; and (3) the groups members either separately or as a group have engaged in a pattern of criminal gang activity. [Citation.]" (People v. Vy, supra, 122 Cal.App.4th at p. 1222, citing People v. Gardeley (1996) 14 Cal.4th 605, 617; see also § 186.22, subd. (f); In re Alexander L. (2007) 149 Cal.App.4th 605, 610-611; People v. Ortiz, supra, 57 Cal.App.4th at p. 483.)
Our Supreme Court interpreted these statutory provisions as follows: "Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the groups primary activities. Both past and present offenses have some tendency in reason to show the groups primary activity (see Evid. Code, § 210) and therefore fall within the general rule of admissibility (id., at § 351)...." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323; see People v. Augborne (2002) 104 Cal.App.4th 362, 372.) In Sengpadychith our Supreme Court concluded: "Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute [§ 186.22, subd. (e)]. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605...." (People v. Sengpadychith, supra, 26 Cal.4th at p. 324, original italics.) In Gardeley, a San Jose Police Department detective testified that the gang of which the defendant had been a member engaged in the sales of narcotics and witness intimidation. The detective had personally investigated "hundreds of crimes" committed by gang members. The detective gathered information from conversations with gang members as well as San Jose Police Department employees and other law enforcement agencies. (People v. Gardeley, supra, 14 Cal.4th at p. 620; People v. Augborne, supra, 104 Cal.App.4th at p. 372.) Opinion testimony of the type presented in Gardeley may constitute evidence sufficient to support a section 186.22 finding. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; see also People v. Vy, supra, 122 Cal.App.4th at pp. 1223-1224; People
v. Augborne, supra, 104 Cal.App.4th at pp. 372-373.)
In this case, Detective Lange testified that he was familiar with the local gang. Further, Detective Lange was aware that defendants relatives lived within the territory of the local gang. Detective Lange testified that the local gang was engaged in a pattern of criminal activity, including: narcotics possession and sales; possession and use of weapons; shootings; robberies; attempted murders; murders; and witness intimidation. When a gang member asks, "Where are you from?" it is an indication that the gang member suspects the other individual is from a different gang. Even if the individual responds, "Im not from anywhere" he or she will most likely be assaulted. Detective Lange was familiar with the term "hood hopping, which involves a gang member leaving one gang and joining another. Detective Lange was familiar with defendant, who was a member of another gang. However, defendant also had family in the area of the local gang. That familial connection could allow him to affiliate with the local gang and move freely within its territory.
When posed with a hypothetical scenario resembling the facts of this case, Detective Lange indicated he believed the murder and assault were committed for the benefit of the local gang. The victims were questioned about where they were from and immediately assaulted absent provocation. Such acts would give the gang member status within the gang and community. Moreover, if an older gang member directed a younger gang member to retrieve a gun and the victim was thereafter shot, both gang members would achieve enhanced status. In other words, there is evidence defendant ordered Mr. Reyes to retrieve a gun. The gun was secreted in defendants familys residence. When Mr. Mora was thereafter shot, both gang members would receive credit for doing work for the gang. Alternatively, if defendant alone shot Mr. Mora in the gang members presence, it would also be for the benefit of the gang. Substantial evidence supported the gang enhancement finding. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 323 [jury may consider past acts committed by gang members and the charged crimes in determining "primary activities"]; People v. Leon, supra, 161 Cal.App.4th at pp. 161-163; In re Alexander L., supra, 149 Cal.App.4th at p. 611 [same]; People v. Vy, supra,
122 Cal.App.4th at p. 1225 ["primary activities" prong of §186.22, subd. (f) satisfied by evidence of two prior serious crimes committed by gang members and the current crime charged].)
D. Cumulative Error
Defendant argues that the cumulative effect of errors committed by the trial court requires the reversal of his convictions. We disagree. There has been no showing of cumulative prejudicial error. (People v. Watson (2008) 43 Cal.4th 652, 705; People v. Abilez (2007) 41 Cal.4th 472, 523; People v. Boyette (2002) 29 Cal.4th 381, 467-468; People v. Seaton, supra, 26 Cal.4th at pp. 675, 691-692 [few errors identified were minor and either individually or cumulatively would not alter the outcome of the trial]; People v. Catlin (2001) 26 Cal.4th 81, 180 [same]; People v. Cudjo (1993) 6 Cal.4th 585, 630 [no cumulative error when the few errors which occurred during the trial were inconsequential].) Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the process or accrue to defendants detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As the California Supreme Court has long held, "[A] defendant [is] entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Mincey, supra, 2 Cal.4th at p. 454; People v. Miranda (1987) 44 Cal.3d 57, 123.) In this case, one of strong evidence of guilt, defendant received more than a fair trial.
IV. DISPOSITION
The judgment is affirmed.
TURNER, P. J.
We concur:
ARMSTRONG, J.
MOSK, J.