PEOPLE v. DIAZ

Appellant’s Petition for Review

Cal.September 18, 2012

5005145 SUPRENEC OURTCORYy= # IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,| S Plaintiff and Respondent, (Court of Appeal No. H036414) V. (Santa Clara County Superior Court No. DORA DIAZ, CC954415) Defendant and Appellant. AFTER PUBLISHED DECISION BY THE COURT OF APPEAL SIXTH APPELLATEDISTRICT ETL COURT OPINION FILED AUGUST1, 2012 ILE D PUBLICATION ORDER FILED AUGUST16, 2012 SEP 18 2012 Frank A. McGuire C SYDA KOSOFSKY cre. fork State Bar No. 172184 Deputy 849-C Almar Ave. #194 Santa Cruz, CA 95060 Telephone: (831) 425-7702 Attorney for Appellant By Appointment of the Court of Appeal Under the Sixth District Appellate Program’s Independent Case System TABLE OF CONTENTS ISSUES PRESENTED FOR REVIEW.........ccceescsescsesesseeceseeassseeseeesesasseaes 1 GROUNDSFOR GRANTING REVIEW ......cccccessscescsseceeeseeeeseeseeesseeaesanees 2 STATEMENT OF THE CASE.......cccescesccecesceeeeecceereeeeseeeseeeeeascnseeseessasenees 6 STATEMENT OF FACTS1.0... ccccceessscesceeeeeeescereneeseaeeaesesneeseevsneeeseasenaeeeeea 7 A. Incident on September 5, 2009.00...cece tecseeceeeeenseeeeaeesweeeeees 7 B. Investigation and Appellant’s Arrest ..........cccceeseseseeseseeesesteeeeees 9 C. Injuries and Retraction... eeeesseeeeeeeceseeeeeeessesseesaeessaaensetenes 10 D. Gang Evidence...eee eccecececeeeneeeeeeeeeeteeceesseesssesseeeesseseeeeessseneenes il ARGUMENT.........ccccecesscsscssessecescesseeeseseceeeeeecnsessssceneeeaeeateseaeeaseesensneeateates 14 I. REVIEW IS REQUIRED BECAUSE THE TRIAL COURT II. Ill. IV. PREJUDICIALLY ERRED BY FAILING TO INSTRUCT THE JURY TO CONSISDER APPELLANT’S OUT-OF-COURT STATEMENTS WITH CAUTION....cececseeesseeseeneeseeseneee 14 REVIEW IS REQUIRED BECAUSE THE TRIAL COURT ADMITTED IRRELEVANT, PREJUDICIAL GANG EVIDENCE IN VIOLATION OF APPELLANT’S FEDERAL DUE PROCESS RIGHTS DESPITE THE FACT THAT THERE WERE NO GANG CRIMES OR ALLEGATIONS AND APPELLANT IS NOT A GANG MEMBER 0.0... eee eeeeessceseeeseesessecsesseessnseeseeessseesensenenseseonees 16 THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHERIT IS PREJUDICIALLY MISLEADING TO INSTRUCT THE JURY THAT AN AIDER AND ABETTOR IS “EQUALLY GUILTY” AS THE ACTUAL PERPETRATORIN A CASE WHERE THE ACTUAL PERPETRATORIS NOT ON TRIAL oieeeeeeeceeeeeeeseeeenseeeeeessasesscseessessasscsssesesssseseeessasesseeeeeeseeseeas 19 THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHER, WHEN THERE IS SUBSTANTIAL EVIDENCE OF THE DEFENDANT’S VOLUNTARY INTOXICATION IN AN ATTEMPTED MURDER CASE, A JURY SHOULD BE INSTRUCTED IT MAY CONSIDER THAT EVIDENCE WHEN DETERMINING WHETHER THE VI. DEFENDANT PREMEDITATED AND DELIBERATED AND HAD THE REQUIREDSPECIFIC INTENT...eeeeeeceeseseeeteesees 21 THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHER, WHEN THERE IS SUBSTANTIAL EVIDENCE OF THE DEFENDANT’S VOLUNTARY INTOXICATION IN AN ATTEMPTED MURDERCASE, TRIAL COUNSEL RENDERSINEFFECTIVE ASSISTANCE BY FAILING TO REQUEST THE JURY BE INSTRUCTED IT MAY CONSIDER THAT EVIDENCE WHEN DETERMINING WHETHER THE DEFENDANT PREMEDITATED AND DELIBERATED AND HAD THE REQUIRED SPECIFIC INTENT1.0... cece escsccseeesecseeesesseeseceseeseescessesessacessseeeeseesaeseeseeeseaeees 25 THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHER THERE IS CUMULATIVE PREJUDICE THAT DENIES A DEFENDANT DUE PROCESSIN AN ATTEMPTED MURDER CASE WHERETHE JURYIS ERRONEOUSLY INSTRUCTED THAT THE DEFENDANTIS “EQUALLY GUILTY” AS THE ACTUAL PERPETRATOR AND NOT INSTRUCTED THAT IT MAY CONSIDER EVIDENCE OF ’ VOLUNTARY INTOXICATION WHEN DETERMINING VIL. WHETHER THE DEFENDANT PREMEDITATED AND DELIBERATED oooeeeeeececesnecceeseeaeeseeeesenscaeeeseessecssereesessneeensees 26 THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHER A DEFENDANTFORFEITS AN EVIDENTIARY CHALLENGETO IMPOSITION OF A BOOKING FEE BY FAILING TO OBJECT...cccceseceeeeteeeseeees 28 CONCLUSION 00... ce eccsscsesessseeseneeeseeneseeceeeseneeseesaesessesseeeesseeaceeeseeseeseeeees 30 CERTIFICATE OF WORD COUNTou...eccesseesssteeseesceeeseeseeseasseeeeessees 30 PROOF OF SERVICE BY MAILiiw..eceeesesesescesscsseecersesesenecasstanecsenaeeess 31 EXHIBIT A Court of Appeal Opinion EXHIBIT B Publication Order ii TABLE OF AUTHORITIES Cases Chapmanv. California (1967) 386 US.1818, 27 In re Avena (1996) 12 Cal.4th 694.svnnntnitntetnee26 People v. Aikin (1971) 19 Cal.App.3d 685ooeecceeeeee26 People v. Albarran (2007) 149 Cal.App.4th 214.0.5,17 People v. Baker (1954) 42 Cal.2d550.023 People v. Bunyard (1988) 45 Cal.3d 1189.0015 People v. Butler (2003) 31 Cal.4th1119.28 People v. Carpenter (1997) 15 Cal.4th 312.000.14,15 People v. Castillo (1997) 16 Cal.4th1009.4,22, 23 People v. Crittle (2007) 154 Cal.App.4th368.29 - People v. Gamache (2010) 48 Cal.4th347.28 People v. Hernandez (2004) 33 Cal.4th 1040.05,17 People v. Hill (1998) 17 Cal.4th80026 People v. Loza (2012) 207 Cal.App.4th332.0020 People v. Manriquez (2005) 37 Cal.4th547.024 People v. McCullough (2011) 193 Cal.App.4th 864, review granted June 29, 2011, S192513.5,29 People v. Montano (1979) 96 Cal.App.3d 221.00.16 People v. Montes (1999) 74 Cal.App.4th 1050.00.5, 16 People v. Nero (2010) 181 Cal.App.4th504.3, 19, 20 ill People v. Pacheco (2010) 187 Cal.App.4th 1392. People v. Saille (1991) 54 Cal.3d 1103.00 People v. Samaniego (2009) 172 Cal.App.4th 1148 People v. Viray (2005) 134 Cal.App.4th 1186. People v. Williams (2001) 26 Cal.4th779. People v. Woodard (1979) 23 Cal.3d329. People v. Zichko (2004) 118 Cal.App.4th 1055. Yates v. Evatt (1991) 500 U.S.391. Constitutional Provisions United States Constitution Sixth Amendment Government Code Section 29550.1 Section 29550.2 Penal Code Section 22 Section 189 Section 245 Section 422 Section 987.8 iv Section 664,subdivision(a). 28, 29 4, 22 3, 19, 20 29 20 18 2, 14, 15 20 20, 25 16, 20, 21 5, 28, 29 29 21 16 6, 17 6, 24 29 28 Section1202.529 Section1203.1...29 Jury Instructions CALCRIM No.3582,3, 14, 15 No.400.003,19 No.3426.23 Court Rules California Rules ofCourt Rule 8.500(b).eepassim vi IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Ss Plaintiff and Respondent, (Court of Appeal No. H036414) V. (Santa Clara County DORA DIAZ, Superior Court No. CC954415) Defendant and Appellant. APPELLANT’SPETITION FOR REVIEW ISSUES PRESENTED FOR REVIEW 1, WHEN A DEFENDANT’S ALLEGED EXTRAJUDICIAL STATEMENTS ARE PART OF THE ACTUS REUS OF THE CHARGED OFFENSE, SHOULD THE JURY BE INSTRUCTED TO TREAT THE STATEMENTS“WITH CAUTION” AND WAS THE OMISSION OF SUCH AN INSTRUCTION PREJUDICIAL IN THIS CASE? i. SHOULD EXPERT TESTIMONY ABOUT CRIMINAL STREET GANGS BE ADMITTED IN A CASE WHERE THERE ARE NO GANG ALLEGATIONS AND THE DEFENDANTIS NOT A GANG MEMBER? Il. IS ITPREJUDICIALLY MISLEADINGTO INSTRUCT THE JURY THAT AN AIDER AND ABETTORIS “EQUALLY GUILTY” AS THE ACTUAL PERPETRATORIN A CASE WHERE THE ACTUAL PERPETRATORIS NOT ON TRIAL? TV. WHEN THERE IS SUBSTANTIAL EVIDENCE OF THE DEFENDANT’S VOLUNTARYINTOXICATION IN AN ATTEMPTED MURDERCASE, SHOULD A JURY BE INSTRUCTED IT MAY CONSIDER THAT EVIDENCE WHEN DETERMINING WHETHER THE DEFENDANT PREMEDITATED AND DELIBERATED? V. WHEN THERE IS SUBSTANTIAL EVIDENCE OF THE DEFENDANT’S VOLUNTARYINTOXICATIONINAN ATTEMPTED MURDER CASE, DOES TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCEBY FAIILING TO REQUEST THE JURY BE INSTRUCTED IT MAY CONSIDER THAT EVIDENCE WHEN DETERMINING WHETHER THE DEFENDANT PREMEDITATED AND DELIBERATED AND HAD THE REQUIRED SPECIFIC INTENT? VI. IS THERE CUMULATIVE PREJUDICE THAT DENIES A DEFENDANT DUE PROCESS IN AN ATTEMPTED MURDER - CASE WHERE THE JURY IS ERRONEOUSLY INSTRUCTED THAT THE DEFENDANTIS “EQUALLY GUILTY” AS THE ACTUAL PERPETRATOR AND NOT INSTRUCTED THATIT MAY CONSIDER EVIDENCE OF VOLUNTARY INTOXICATION WHEN DETERMINING WHETHER THE DEFENDANT PREMEDITATED AND DELIBERATED? VII. DOES A DEFENDANT FORFEIT AN EVIDENTIARY CHALLENGETO IMPOSITION OF A BOOKING FEE BY FAILING TO OBJECT? GROUNDS FOR GRANTING REVIEW This appeal resulted in a partially published opinion that creates a conflict in the case law concerning trial court’s responsibility to give CALCRIM No.358,the instruction that requires a defendant’s extrajudicial statements to be considered “with caution.” In the published portion ofits opinion, the Court of Appeal held that the instruction is required even when the defendant’s extrajudicial statements constitute part of the actus reus of the crimeitself. (See Exh. A [slip opn.], pp. 36-37; Exh. B [publication order]; compare People v. Zichko (2004) 118 Cal.App.4th 1055.) However, the Court of Appeal found the error harmless on the facts here. Appellant believes that the Court of Appeal correctly held that CALCRIM No.358 must be given whenever a defendant’s extrajudicial statements are admitted, even when they are part of the charged crime. However, she disagrees that the error was harmless in this case, where her statements were alleged to constitute criminal threats and she disputed making the threats. Review should be granted to settle the instructional issue, whichis likely to recur, and because courts will also need guidance on the circumstances in whichfailure to instruct pursuant to CALCRIM No. 358 is harmless or prejudicial. Although addressed in the unpublished portion of the opinion, the instant case also creates an apparent conflict in the case law concerning the propriety of CALCRIM No.400, which states that an aider and abettor is “equally guilty” as the direct perpetrator. Although that instruction has been criticized by two prior published cases (People v. Nero (2010) 181 Cal.App.4th 504; People v. Samaniego (2009) 172 Cal.App.4th 1148), the Court of Appeal found the instruction was properin this case. The Court of Appealpointed out that in Nero and Samaniego, the direct perpetrators were codefendants, whereas appellant (the alleged aider and abettor) was tried alone. (Exh. A, p. 24.) Appellant believes that the rationale of the Nero and Samaniego cases should not be limited to situations where both the actual perpetrator and alleged aider and abettor are on trial. This Court should grant review to settle this question, whichis likely to recur. Third, review should be granted to resolve some apparent conflict in the case law concerningthetrial court’s duty to give a pinpoint instruction on voluntary intoxication as it relates to premeditation and deliberation. This Court has previously held that there is no sua sponte duty to give an instruction on voluntary intoxication as it relates to the mental states required for the charged offense. (People v. Saille (1991) 54 Cal.3d 1103, 1120.) However, this Court has also indicated that providing the instruction only asit relates to specific intent, without also specifying thatit can be considered as to other mental states such as premeditation, can be misleading. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) In this case, the Court of Appeal rejected appellant’s claim that the voluntary intoxication instruction was misleading becauseit only related to specific intent, and not premeditation and deliberation, following Saille rather than the suggestion in Castillo. The Court of Appeal further held that any error did notaffect appellant’s right to present a defense, that any error was harmless, andthat trial counsel was notineffective for failing to request such an instruction. Review is necessary to address the conflict created by this Court’s Castillo opinion and to provide guidanceforthetrial courts on this issue, which is likely to recur. Review is also necessary to address the question whethertrial counsel could reasonably decide not to request that the instruction coverall ofthe mental states necessary for conviction, an issue whichis also likely to recur. This Court should also grant review in order to address a fourth important question: whether expert gang testimony is ever admissible in a case involving no gang crimesorallegations and a defendant whois not alleged to be a gang member. This Court has previously indicatedthat, in cases not involving gangallegations, “evidence of gang membershipis potentially prejudicial and should not be admitted if its probative value is minimal.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) While numerous cases addressthe circumstances under which suchtestimonyis admissible to prove gang crimesorallegations (e.g., People v. Albarran (2007) 149 Cal.App.4th 214, 230) or when the defendant him or herself is a gang member(e.g., People v. Montes (1999) 74 Cal.App.4th 1050, 1056), there is little case law providing guidance as to whethersuch testimonyis admissible when there are no gang crimesorallegations at issue and the defendant is not a gang member. This issueis likely to recur as well. Finally, review should be granted because the issue whether a Government Codesection 29950.1 booking fee can be challenged for the first time on appealis already before this court. (People v. McCullough, §192513, rev. granted June 29, 2011.) This Court should review of one or more of the above issues. The Court ofAppeal’s opinion is inconsistent with published opinions on several of these issues, whichare likely to recur, and this case presents a vehicle for their resolution. (Cal. Rules of Court, Rule 8.500(b)(1).) STATEMENT OF THE CASE On May13, 2010, the District Attorney filed an information charging appellant with willful, deliberate, and premeditated attempted murder (count 1; §§ 664, 187, 189) and three counts of criminal threats (counts 3-5; § 422).! (2CT 231-234.) Jury trial began on August 26, 2010. (2CT 262; 1RT 4.) On September 14, 2010, the jury found appellant guilty of all counts. (2CT 349-352, 354-355; 2RT 554-555.) At the sentencing hearing on November22, 2010,the trial court imposeda life term with the possibility of parole for count 1, with a consecutive two-year term for count 3 and consecutive eight-month terms for counts 4 and 5. (2CT 382; 2RT 568.) ' Codefendant Adrian Bonilla wasalso charged with attempted murder, as well as felony assault (§ 245, subd. (a)(1)). (2CT 231-234.) He resolved his case prior to appellant’s trial. (See 2RT 12.) STATEMENT OF FACTS Eduardo Morales, age 21 at the timeoftrial, had dated appellant for three or four years. (1RT 34, 36, 73.) Appellant was older than him, married, and had four children. (1RT 35, 36, 72.) Appellant broke up with Mr. Moralesin late August of 2009, telling him over the phone that she “no longer loved [him].” (1RT 38-39.) A. Incident on September 5, 2009 Mr. Morales wasasleep on the couchofhis apartmentin the early morning hours of September5, 2009. (IRT 39.) Between 1:00 a.m. and 1:30 a.m., he heard a hard knock on the door and window. (1RT 39, 40.) Hepeeked out and saw appellant along with two other females, whom he did not recognize. (1RT 39, 40.) The three womenweretelling Mr. Morales to come outside and calling him a “fucking asshole.” (1RT 41.) Mr. Morales put on his shoes and wentoutside. (IRT 41.) On his way out, he saw that the living room window had been broken. (1RT 41.) Standing in the doorway with one foot in the house and one foot outside, Mr. Morales stopped and asked, “Whyare you doingthis to me?” (IRT 42.) The three women came towards Mr. Morales and pulled him outside to the driveway by the hair. (IRT 43.) They hit and kicked him. (1RT 43.) During the beating, Mr. Morales was covering himself with his hands, and the women werecalling him a “fucking asshole.” (1RT 45-46.) The womenalso said “puro catorce,” meaning “only 14.” (IRT 46.) Appellant backedup, snappedherfingers, and whistled. (IRT 43.) Three men, including someone wholookedlike appellant’s son, approached andjoined in the beating. (1RT 44, 47-48.) Mr. Moralesfelt a stabbing in his right stomach area and saw five- or six-inch knife or blade. (IRT 48-50.) He put his hand out to stop the stabbing, and the knife hit his arm. (1RT 49, 51.) While the men wereattacking him, Mr. Morales heard the phrase “puro norte,” meaning “onlynorth.” (RT 54.) After Mr. Morales was stabbedfive times,all of the assailants left except for appellant, wholifted Mr. Morales’s shirt, called him a “fucking asshole,” and laughed. ORT 52, 60.) Appellant told Mr. Moralesthat if he did not “die this time,” he would “surely die the next time and that she was going to finish off [his] whole family.” (1RT 55.) Meanwhile, Mr. Morales’s mother, Marta Rosales, and sister-in-law, Indira Pineda, had come outside. Appellant said she would kill every memberofthe family, “one by one.” (1RT 157; see also 1RT 247[threat was to kill “each one of us”].) Appellant also directed a threat at Ms. Pineda: “You’re going to pay for this.” (IRT 248.) Noneof appellant’s alleged threats were heard on the 911 tape, despite the fact that Ms. Rosales was on the phone with the dispatcher throughout the incident. (IRT 142, 160, 258; see 2RT 521.) Mr. Morales did nottestify that he heard these threats; he merely heard appellantcall Ms. Pineda a “bitch” and say “puro catorce”as she left. (IRT 58, 98.) B. Investigation and Appellant’s Arrest Police and other emergency personnel respondedto the incident and found Mr. Morales bleeding and fearful. (2RT 305-306, 350-351, 389.) Mr. Morales wastransported to the hospital. (2RT 308.) At about 3:30 a.m., police went to appellant’s residence, located at 903 East Julian. (LRT 123-124.) The three officers parked about a block away and approached by foot. (2RT 325, 341.) Appellant wassitting on the porch, but she began running west on Julian when the officers were a few houses away. (IRT 124; 2RT 326, 341.) Officers pursued her a short distance (about one-half of a block) and told her to stop. (IRT 124; 2RT 327.) Appellant stumbled and fell — she appeared to be intoxicated. (LRT 125; 2RT 327, 334.) She also stumbled as she walkedto thepatrol car. (1RT 134.) She identified herself in response to questions from the officers and was cooperative. (IRT 126, 131.) Appellant smelled of alcohol, her eyes were bloodshot and watery, and her speech wasslurred. (2RT 335.) In the opinion of one officer, she was “heavily intoxicated.” (2RT 337.) While appellant was being contacted by the police, a dark-colored Lincoln drove by, then slowed downto aboutfive miles per hour orless. (IRT 127; 2RT 328-329, 375-376.) The vehicle stopped in front of appellant’s residence. (2RT 328-330, 344.) The two occupants of the Lincoln were detained. (2RT 378.) The male hada star tattoo on his face and numeroustattoos on his body. (2RT 379.) The Lincoln was subsequently searched. (1RT 198.) There was bloodinsidethe car, as well as on the outside. (IRT 201.) The residence at 903 East Julian was also searched. (1RT 201.) Blood was foundonseveral items inside. (IRT 200, 201, 204; 2RT 369.) Eight to ten people were present in the residenceat the time, including three or four male teenagers, two children, two middle-aged males, and two adult females. (2RT 364.) The males included Gerardo Sosa, appellant’ son _LS., and Guillermo Rodriguez. (2RT 365, 468.) Rodriguez hadtattoos on his arms, including “SJ” and “ES,” and he worea red belt with “SJ” on the buckle. (2RT 368, 383.) C. Injuries and Retraction As a result of the stabbing, Mr. Morales spent three days in the intensive care unit of the hospital. (2RT 409.) He suffered two stab woundsin his forearm, twoin his right upper chest near his armpit, and two above his right hip. (IRT 60; 2RT 408.) Oneofthe stab wounds went through his lung, and he had bloodin his lungs. (IRT 61; 2RT 408.) Mr. Moralesalso had liver laceration and a pulmonary contusion. (2RT 408.) He required a blood transfusion, sutures, and a chest tube to drain the blood from his lungs. (2RT 408.) At the timeoftrial in September 2010, Mr. Moralesstill had numbness in his chest area and could notfully extend his fingers. (1RT 61.) 10 In Novemberof2009, Mr. Morales asked the District Attorney to drop the charges against appellant, asserting that she had not hurt him. (1RT 100-101.) Mr. Morales also denied appellant’s involvement during a conversation with a private investigator around the same time. (1RT 101.) However, the following day, he retracted his retraction. (IRT 103.) At trial, he blamedhis brief retraction on his fear that appellant’s relatives might do something to him. (IRT 113.) D. Gang Evidence Mr. Morales denied being a gang memberorassociating with gang members. (1RT 54.) He had severaltattoos that were not gang-related. (IRT 104, 2RT 439.) The residence at 903 East Julian contained gang-related graffiti. (IRT 202.) The graffiti was inside the house andoutside the house, including onthestreet in front of the house. (1RT 202-203.) A cell phone in the residence had a screen saveror wallpaper that said “Bloody Waters.” (2RT 383-384.) The residence wasin a “known JSP gangarea,” referring to a gang called the Julian Street Posse. (2RT 362; see also 2RT 462.) The prosecution was permitted to present testimony from a gang expert, Sergeant Anthony Alfonzo. (2RT 426, 431.) He defined gang for the jury and explained that the purpose of gangsis to commit crimes, intimidate people and control neighborhoods. (2RT 443.) He told a story about a 14-year-old who killed two gang members. (2RT 443.) He 11 testified about the two primary rivalries within California gangs: Nortenos and Surenos. (2RT 447-448.) East Side San Jose, or “ESSJ,”is a local Norteno gang. (2RT 451.) Julian Street Posse, or “JSP,” is another. (2RT 459.) The group Vario Bloody Waters, or “VBW,”is not quite a gang yet but they do align with Nortenos. (2RT 464.) Sergeant Alfonzo testified that Nortenos identify with the number 14 — sometimes said in Spanish as “catorce” — and the color red. (2RT 447.) Theyalso identify with the City of San Jose, and a particular symbol for Nortenosis a red San Jose Sharks logo. (2RT 447.) A star tattoo may be a Nortenotattoo, particularly if the person has other Norteno gangtattoos such as four dots or the number 408. (2RT 461.) According to Sergeant Alfonzo,it is not unusual for females to participate in gang activities. QRT 458.) Yelling the phrase “puro norte” or “puro catorce” during a criminal act notifies witnesses that the Nortenos are responsible. (2RT 460.) This enhances the reputation of the gang and the participating membersin particular. (2RT 460.) Sergeant Alfonzotestified that L.S. (appellant’s son and one ofthe men found inside the Julian Street residence) was a gang member. (2RT 465, 468.) One month after the charged incident, L.S. was arrested with a knife and claimedhecarried it as protection against rival gang members. (2RT 465.) Appellant’s other son was also a gang member, although her husband was not. (2RT 469.) 12 Sergeant Alfonzo opined that appellant herself was not a gang member. (2RT 467.) He did not believe she had any tattoos,” she had not been wearing any gang clothing, and she had never admitted gang membership. (2RT 467.) Hefurther testified it is common for family members whoare not gang memberstolive at a residence with relatives who are gang members. (2RT 468.) * Moralestestified that appellant had a red butterfly tattoo on her back. (1RT 88.) 13 ARGUMENT I. REVIEW IS REQUIRED BECAUSE THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO INSTRUCT THE JURY TO CONSISDER APPELLANT’S OUT-OF-COURT STATEMENTS WITH CAUTION On appeal, appellant argued that the jury should have been instructed to consider the evidenceofher out-of-court statements with caution, pursuant to CALCRIM No.358. The primary statements at issue were — appellant’s threats to Mr. Morales and his family.? (See IRT 55, 157, 247- 248.) | In the published portion of its opinion, the Court of Appeal agreed with appellant and disagreed with People v. Zichko, supra, 118 Cal.App.4th 1055. Zichko had held that there is no need for a “consider with caution” instruction when the defendantis charged with criminal threats andthe out- of-court statement is a defendant’s threat, because such evidence does not actually “admit” the commission ofa threat. (/d. at p. 1059.) The Court of Appeal explainedthat the analytical basis for Zichko is “not convincing” and conflicts this Court’s decision.in People v. Carpenter (1997) 15 Cal.4th 312. (Exhibit A, pp. 33-35.) In Carpenter, this Court confirmedthat a “consider with caution” instruction is warranted even wherethe out-of-court statementis “part of the crimeitself.” (/d. at p. 392; > Appellant’s other statements included severalinsults (“fucking asshole” and “bitch”) and her alleged use of the gang slogan “puro catorce.” (RT 52, 58, 98.) 14 see also People v. Bunyard (1988) 45 Cal.3d 1189, 1224-1225 [jury should have been instructed to “consider with caution” defendant’s statement constituting the crime ofsolicitation to commit murder].) In this case, the Sixth District found “no real legal distinction between a statementthatis ‘the crime itself (People v. Zichko, supra, 118 Cal.App.4th at p. 1059) and a statementthat is ‘part of the crime itself (People v. Carpenter, supra, 15 Cal.4th at pp. 392-393).” (Exhibit A, p. 35.) The Court of Appeal thus correctly found that there was instructional error in this case, but it found the error harmless based on the testimony of the witnesses and the other instructions given. (Exhibit A, pp. 36-38.) Appellant believes that this conclusion was wrong. The evidencethat appellant made the statements was not strong — as trial counsel pointed out below,her alleged threats were not heard on the 911 tape. (See 2RT 521.) Additionally, the witnesses did nottestify consistently with one another. In particular, Mr. Morales did nottestify about hearing the threats appellant allegedly made to Ms. Rosales and Ms. Pineda. (1RT 58.) Thus, the testimonyofthe victims was subject to disbeliefby the jury. Review should be grantedto settle the issue of whether CALCRIM No. 358 should be given in a criminal threats case, and to settle whether failure to give such an instruction is prejudicial where the evidence of the threats is disputed. Both issuesare likely to recur. (Cal. Rules of Court, rule 8.500(b)(1).) 15 II. REVIEW IS REQUIRED BECAUSE THE TRIAL COURT ADMITTED IRRELEVANT, PREJUDICIAL GANG EVIDENCEIN VIOLATION OF APPELLANT’S FEDERAL DUE PROCESS RIGHTS DESPITE THE FACT THAT THERE WERE NO GANG CRIMES OR ALLEGATIONS AND APPELLANT IS NOT A GANG MEMBER Onappeal, appellant argued that the prosecution should not have been permitted to introduce prejudicial evidence concerning the gang membership of the male assailants, including expert testimony about gang culture and violence. She argued that the gang evidence had no relevance to any disputedissueattrial, particularly since no gang crimes or allegations were ever charged (see § 186.22) and it was notalleged that appellant was a gang member (compare People v. Montes, supra, 74 Cal.App.4th at p. 1056; People v. Montano (1979) 96 Cal.App.3d 221, 227). Appellant argued that the admissionofthis irrelevant, prejudicial evidence precluded appellant from havinga fair trial as guaranteed by the due process clause of the Fourteenth Amendment. The Court of Appealrejected this claim, holding that the gang evidence tended to help show that appellant had the charged mental states (specific intent and premeditation) and that the gang evidence wasrelevant to the witness’s fear. (Exh. A, pp. 19-20.) The Court ofAppeal held that the gang evidence helped to show appellant knew ofthe three men would carry a deadly weapon and engage in violence. (Exh. A, p. 19.) However, the Court of Appeal did not explain how a jury may infer a defendant’s 16 actual knowledge of her companion’s intent or weapons possession based on expert testimony ofwhat gang membersare “known”to do. In this case, it would be a speculative leap to infer appellant’s intent based on that expert testimony,particularly since the prosecution introduced no evidence of appellant’s involvement in any prior gang activities and no evidencethat the gang members involvedin this incident had committed any prior attempted murders with deadly weapons. The Court of Appeal also held that the gang evidence wasrelevant to the issue ofwhether the victims were placed in sustained fear by appellant’s threats. (Exhibit A, p. 20; see § 422.) However, nothing in the record showsthat the involvement of gang members was whatplaced the victims in fear. The jury should not have been permitted to infer the victims were fearful based on the gang expert’s testimony. This Court should grant review in order to address the circumstances under which expert gang testimony may be admissible in a case involving no gang crimesor allegations and a defendant whois not alleged to be a gang member. This court has previously indicated that, in cases not involving gang allegations, “evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.” (People v. Hernandez, supra, 33 Cal.4th 1040, 1049.) While numerous cases address the circumstances under whichsuch testimony is admissible to prove gang crimesor allegations (e.g., People v. Albarran, supra, 149 17 Cal.App.4th at p. 230), thereis little case law providing guidanceas to whether such testimony is admissible when there are no gang crimes or allegations at issue and the defendant is not a gang member. This Court should grant review to help provide such guidance,since this issue is likely to recur. (Cal. Rules of Court, Rule 8.500(b)(1).) Review is also important because admission of the gang evidence wasprejudicial in this case. The weakest pointofthe prosecution’s attempted premeditated murder theory was the absenceofdirect proofthat appellant knew that the stabber possessed a knife and intended touseit in the assault. The gang evidencelikely filled this gap in the jury’s mind. Notably, the prosecutor exploited the gang evidence during closing argument. (See 2RT 491, 504, 531, 534; cf. People v. Woodard (1979) 23 Cal.3d 329, 341 [prosecutor exploited erroneously admitted evidence of eyewitness’s prior conviction].) Because this was a close case on the issues of appellant’s mental states and whether she made thethreats, it cannot be said beyond a reasonable doubtthat the jury would have found appellant guilty ofpremeditated attempted murderorof all three threat counts but for the admission ofthe gang evidence. (Chapmanv. California (1967) 386 U.S. 18, 24.) 18 Ill. THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHERIT IS PREJUDICIALLY MISLEADING TO INSTRUCT THE JURY THAT AN AIDER AND ABETTORIS “EQUALLY GUILTY”AS THE ACTUAL PERPETRATORIN A CASE WHERE THE ACTUAL PERPETRATORIS NOT ON TRIAL On appeal, appellant argued thatthetrial court erred by telling the jury that appellant was “equally guilty” of the same crimeas the stabber, pursuant to CALCRIM No. 400. Appellant pointed outthat the “equally guilty” instruction had been criticized by two prior published cases (People v. Nero, supra, 181 Cal.App.4th 504 and People v. Samaniego, supra, 172 Cal.App.4th 1148), but the Court of Appeal declined to follow those cases. It indicated that the “equally guilty” instruction was only misleading in cases where more than one codefendantis tried together, andit held that any error was harmless. (Exh. A, pp. 24-25.) The opinion herein creates an apparent conflict by indicating that the “equally guilty” instruction is only misleading in cases where more than one codefendantis tried together. Nothing in the Nero or Samaniego opinionsindicates that their holdings are limited to situations where both the actual perpetrator and alleged aider and abettor are ontrial. In fact, the appellate court in Nero concluded that “even in unexceptional circumstances ... CALCRIM No.400 can be misleading.” (People v. Nero, supra, 181 Cal.App.4th at p. 518.) The Nero court explained that an aider and abettor’s mensrea “floats free” from the mensrea of the direct 19 perpetrator. (People v. Nero, supra, 181 Cal.App.4th at pp. 515-518.) In other words,“the jury must determine what the aider and abettor’s intent was, separate from that of the perpetrator.” (People yv. Loza (2012) 207 Cal.App.4th 332, 354.) The issue is one with federal constitutional implications, as a jury instruction omitting or misdescribing an element of a charged offense violates the federal constitutionalright to jury. (People v. Nero, supra, 181 Cal.App.4th at pp. 518-519; People v. Samaniego, supra, 172 Cal.App.4th at p. 1165; People v. Williams (2001) 26 Cal.4th 779, 797; U.S. Const., Amends. VI & XIV;,.) Moreover, the error was prejudicial, since the record yields no indication that the jury independently found appellant guilty of premeditated attempted murder rather than applying the improper ‘ presumption stated in the “equally guilty” instruction. (See Yates v. Evatt (1991) 500 U.S. 391, 404.) The evidence of appellant’s mental state was not so overwhelmingas to renderthe effect of the improper presumption “comparatively minimal.” (/d. at p. 405.) Appellant was not the primary perpetrator and did not bring the weapon. The prosecution had no proof appellant knew that the direct perpetrator had a knife until he pulled it out and used it. Without the “equally guilty” instruction, the jury reasonably could have concludedthat appellant was — as defense counsel argued below — guilty of a lesser offense than the direct perpetrator. 20 Becausethe instant opinion essentially disagrees with prior appellate case law on this subject, this Court should grant review to helpsettle this issue, which is likely to recur. (Cal. Rules of Court, Rule 8.500(b)(1).) IV. THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHER, WHEN THERE IS SUBSTANTIAL EVIDENCE OF THE DEFENDANT’S VOLUNTARYINTOXICATION IN AN ATTEMPTED MURDERCASE, A JURY SHOULD BE INSTRUCTEDIT MAY CONSIDER THAT EVIDENCE WHEN DETERMINING WHETHER THE DEFENDANT PREMEDITATED AND DELIBERATED AND HAD THE REQUIRED SPECIFIC INTENT On appeal, appellant argued that the trial court erred by failing totell the jury it could consider appellant’s intoxication when determining whether she premeditated and deliberated. (See § 22, subd. (b).) She arguedthat this instructional error effectively deprived her of an instruction on her theory ofthe case in violation of the Fourteenth Amendment. The Court of Appeal held thatthe trial court was not required to give a pinpoint instruction on voluntary intoxicationas it related to premeditation and deliberation, that any error did not affect appellant’ s right to present a defense and wasnot prejudicial. (Exh. A, pp. 25-31.) In its opinion, the Court of Appeal attempted to resolve some apparent conflict in the case law concerning the pinpointinstruction on voluntary intoxication asit relates to premeditation and deliberation. This issue was not fully resolved and requires this Court’s review. 21 As the Court of Appeal noted, this Court has previously held that there is no sua sponte duty to give an instruction on voluntary intoxication as it relates to the mental states required for the charged offense. (People v. Saille, supra, 54 Cal.3d at p. 1120.) However, this Court has also indicated that providing the instruction only asit relates to specific intent, without also specifying that it can be considered as to other mental states such as premeditation, can be misleading. (People v. Castillo, supra, 16 Cal.4th at p. 1015.) InPeople v. Castillo, supra, 16 Cal.4th 1009,the trial court had instructed the jury that intoxication could be considered in determining whether the defendanthad the “specific intent or mental state” required for murder. (/d. at p. 1014, fn. 2.) On appeal, the defendant argued thattrial counsel wasineffective for failing to request that the instructions be modified to specify that intoxication could negate the mentalstate of premeditation. (id. at p. 1014.) This Court disagreed, holding that the instructions were adequatein that they referred to “specific intent or mental state.” (/d. at pp. 1015-1016.) By including the term “mentalstate,” the jury was apprised that intoxication could also negate premeditation, one of the mental states required for first degree murder. (Jd. at p. 1016.) This Court explainedthat if the instructions had only told the jury that intoxication could negate specific intent, they would have been misleading, and “the issue here would implicate the court’s duty to give 22 legally correct instructions.” (People v. Castillo, supra, 16 Cal.4th at p. 1015.) “Even if the court has no sua sponte duty to instruct on a particular legal point, when it does chooseto instruct, it must do so correctly.” (bid.) This Court further explained that the giving of such a “‘partial instruction’ ” would have been prejudicial error. (/bid., quoting People v. Baker (1954) 42 Cal.2d 550, 575-576.) Unlike in Castillo, the jury instruction in this case did limit the jury’s consideration of intoxication to specific intent only. As given, the instruction effectively precluded the jury from considering the evidence of appellant’s intoxication to negate premeditation. The instruction specified: “You mayconsider evidence if any of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the specific intent required by any crime.... [§] ... [f] You may not consider evidence ofvoluntary intoxication for any other purpose.” (2RT 546; 2CT 319 [CALCRIM 3426].) However, the Sixth District held that Castillo addressed the issue only in dicta and that it was required to follow this Court’s prior decision in Saille. Since this Court has now indicated that it may be timeto refine the parameters of Saille, appellant believes that the present case presents a vehicle for doing so. Moreover, the error here was not harmless. The evidence of appellant’s severe intoxication was undisputed, and although 23 the jury did not accept the intoxication defense regarding the issue of specific intentto kill, the issue ofpremeditation is entirely separate. Unlike malice, “premeditation and deliberation must result from ‘ “careful thought and weighing of considerations”’ [citation].” (People v. Manriquez (2005) 37 Cal.4th 547, 577.) Thus, the jury’s rejection of the theory that appellant was too intoxicated to form the specific intent to kill does not mean that the jury would also have rejected the theory that appellant was too intoxicated to premeditate and deliberate the attempted murder, had it been instructedit could consider that issue. And, had the jury found that appellant was too intoxicated to premeditate and deliberate, appellant would not have received a life term. (§ 664, subd.(a).) Review should be granted to provide further guidanceforthetrial courts on this unresolved issue, whichis likely to recur. (Cal. Rules of Court, Rule 8.500(b)(1).) 24 V. THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHER, WHEN THERE IS SUBSTANTIAL EVIDENCE OF THE DEFENDANT’S VOLUNTARY INTOXICATION IN AN ATTEMPTED MURDERCASE, TRIAL COUNSEL RENDERS INEFFECTIVE ASSISTANCE BY FAITLING TO REQUEST THE JURY BE INSTRUCTEDIT MAY CONSIDER THAT EVIDENCE WHEN DETERMINING WHETHER THE DEFENDANT PREMEDITATED AND DELIBERATED AND HAD THE REQUIRED SPECIFIC INTENT On appeal, appellant argued thattrial counsel wasineffective, in violation of the Sixth Amendment, for failing to request the voluntary intoxication instruction on deliberation and premeditation. The Court of Appealheld that trial counsel was notineffective for failing to request such an instruction. (Exh. A, p. 32.) The Court of Appeal reasonedthattrial counsel may have madea tactical decision to focus on arguing that appellant lacked the intentto kill and had no knowledgethat the other assailant would bring a weapon. (Exh.A,p. 32.) Appellant submits that no reasonable attorney would decideto limit the jury’s consideration of the defendant’s voluntary intoxication to only the specific intent mental state, where premeditationis also alleged. Reasonably competent counsel would haveraised this meritorious claim, which is supported by California statutes and case law. Notably,trial counsel had already madethetactical decision to use the evidence of appellant’s intoxication as the primary defense: she argued about appellant’s intoxication throughout closing argument. (2RT 523-525, 528.) 25 Her argument even suggested that she believed intoxication would negate premeditation and deliberation. (2RT 528-529 [“You cannotfind premeditation and deliberation, you just can’t get there. Even ifyou believe every single thing you heard. I’d submit to you that Ms. Diaz was _ intoxicated when she went to Mr. Morales’ house eee].) Review is necessary to address the question whethertrial counsel could reasonably decide not to request that the instruction cover all of the charged mental states in a premeditated attempted murdercase, an issue whichis likely to recur. (Cal. Rules of Court, Rule 8.500(b)(1).) VI. THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHER THERE IS CUMULATIVE PREJUDICE THAT DENIES A DEFENDANT DUE PROCESS IN AN ATTEMPTED MURDER CASE WHERE THEJURYIS ERRONEOUSLY INSTRUCTED THAT THE DEFENDANTIS “EQUALLY GUILTY” AS THE ACTUAL PERPETRATOR AND NOT INSTRUCTED THATIT MAY CONSIDER EVIDENCE OF VOLUNTARYINTOXICATION WHEN DETERMINING WHETHER THE DEFENDANT PREMEDITATED AND DELIBERATED Onappeal, appellant argued that the cumulative effect of the first two instructional errors was to denyhertherightto a fair trial guaranteed by the Fourteenth Amendment. (See Jn re Avena (1996) 12 Cal.4th 694, 772, fn. 32 [dis. opn. of Mosk, J.]; People v. Hill (1998) 17 Cal.4th 800, 844-845; People v. Aikin (1971) 19 Cal.App.3d 685, 703.) She explained that both errors significantly affected the jury’s determination of whether appellant premeditated and deliberated the attempted murder. 26 The Court of Appeal summarily found “no instructional errors cumulatively denying [appellant] a fundamentally fair trial.” (Exh. A,p. 32.) However, it was notfair that appellant’s jury was instructed that it had to find appellant, as an aider and abettor, “equally guilty” as the direct perpetrator, when the record provideda basis for the jury to find that she was guilty of a lesser offense. It was not fair that jury was precluded from considering appellant’s intoxication onthe issue of premeditation and deliberation. It cannot be said beyond a reasonable doubtthat a properly instructed jury would have convicted appellant ofpremeditated attempted murderrather than a lesser offense. (Chapman v. California, supra, 386 USS.at p. 24.) Review should be granted to resolve the question of whether this combination of instructional errors is prejudicial — an issue that is unsettled and likely to recur. (Cal. Rules of Court, Rule 8.500(b)(1).) 27 VII. THIS COURT SHOULD GRANT REVIEW TO ADDRESS THE QUESTION WHETHERADEFENDANT FORFEITS AN EVIDENTIARY CHALLENGETO IMPOSITION OF A BOOKINGFEE BY FAILING TO OBJECT On appeal, appellant arguedthat the trial court erroneously imposed a booking fee pursuant to Government Code section 29550.1. The Court of Appeal declined to consider appellant’s argument that Government Code section 29950.1 requires an ability to pay finding based uponprinciples of statutory construction or equal protection, and it held that appellant forfeited her argumentthat the prosecution failed to prove the costs of her booking. (Exh. A, pp. 42-45.) The Sixth District Court of Appeal had previously held that claims “based on the insufficiency of the evidence to support the order or judgment... do not require assertion in the court below to be preserved on appeal.” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397; see also That general rule is supported by precedent from this Court. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1126 [a claim that there is no substantial evidence to support a judgmentororderis not subject to the forfeiture rule].) However, with respect to imposition of fines subject to the defendant’s ability to pay, cases have not been consistent in deciding whetherthe forfeiture rule applies. Cases have held that ability-to-pay challenges are forfeited for failure to object with respectto a restitution fine (§ 1202.4; see People v. Gamache (2010) 48 Cal.4th 347) or the $10 fine 28 that may be imposedfor robbery, theft, or burglary (§ 1202.5; see People v. Crittle (2007) 154 Cal.App.4th 368, 371). However, cases have held that ability-to-pay challengesare not forfeited for failure to object with respect to attorneys fees (§ 987.8; see People v. Viray (2005) 134 Cal.App.4th 1186, 1217) or the probation supervision fee (§ 1203.1; People v. Pacheco, supra, 187 Cal.App.4th at p. 1397). In this case, the Court of Appeal distinguished its prior opinion in Pacheco on thebasis that it involved a different booking fee statute — Government Codesection 29550.2. (Exh. A, p. 40.) Appellant submits that the same rule should applyto all sufficiency of the evidence challenges; the forfeiture rule should not depend on the particular statutory basis for a fine. Review should be granted becausetheissueis unsettled. (Cal. Rules of Court, Rule 8.500(b)(1).) Moreover, the question whether a Government Codesection 29950.1 booking fee can be challenged for the first time on appealis already before this court. (People v. McCullough, S192513, rev. granted June 29, 2011.) 29 CONCLUSION For the reasons stated above, review should be granted. Dated: August _, 2012 Respectfully submitted, SYDA KOSOFSKY Attorney for Appellant - CERTIFICATE OF WORD COUNT Counsel for appellant herebycertifies that this petition consists of ____ words (excludingtables, required cover information, signature block, proofof service, and this certificate), according to the word countofthe computer word-processing program. (Cal. Rules of Court, rule 8.360(b).) August _, 2012 Syda Kosofsky, Esq. 30 PROOF OF SERVICE BY MAIL I declare that: I am a memberof the State Bar of California. Iam over the age of 18 years and nota party to the within-entitled cause. My business address is 849-C Almar Ave. #194, Santa Cruz, CA 95060. On the date shownbelow,I served the attached APPELLANT’S PETITION FOR REVIEWherein by placing a true copy thereof enclosed in a sealed envelope with first-class postage thereon fully prepaid, in the United States Mail at Santa Cruz, CA addressed as follows: Christopher J. Wei, Esq. Office of the Attorney General Hon. Ron Del Pozzo 455 Golden Gate Ave., Ste. 11000 Santa Clara Superior Court San Francisco, CA 94102-3664 191 N.First Street San Jose, CA 95113 Dallas Sacher, Esq. . Sixth District Appellate Program Sixth District Court of Appeal 100 N. Winchester Blvd., Suite 10 333 W.Santa Clara St., Ste. 1060 Santa Clara, CA 95050 San Jose, CA 95113 Dora Diaz CDCHWA7589 VSPW (A1-26-2u) P.O. Box 99 Chowchilla, CA 93610-0099 I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct and that this declaration was executed on August _, 2012,at Santa Cruz, California. SYDA KOSOFSKY 31 Exhibit A Court of Appeal Opinion (Omitted from Service Copies) Filed 8/1/12 P. v. Diaz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinionsnotcertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H036414 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC954415) V. DORA DIAZ, Defendant and Appellant. Dora Diaz was charged and convicted of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, 189, 664, subd. (a))' (count one) andthree counts of criminal threats (§ 422) (counts three, four, and five).” Defendant was sentencedto a total prison term oflife with possibility of parole consecutive to a three year, four month prison term. On appeal, defendant Diaz arguesthat the trial court erroneously admitted gang evidence and committed multiple instructional errors. She also attacks the imposition of a booking fee. 1; All further statutory references are to the Penal Code unless otherwise specified. Adrian Alexander Bonilla was originally charged with attempted murder in count one and with felony assault in violation of section 245, subdivision (a)(1), in count two. During the hearing on the in limine motions, defense counsel mentioned that Bonilla had resolvedhis case. Wefind no basis for reversal.’ I Evidence A. Prosecution's Case Eduardo Morales ("Morales"), the stabbing victim in this case, was 21 years old at the time oftrial in September 2010. In September 2009, Morales wasliving in a two- bedroom apartment with his mother Marta Rosales and her three young children, his mother's husband Alvaro Hernandez, the husband's brother Cesar Hernandez (also known as Cesar Hernandez Castro), his brother Carlos Danilo Morales, and his sister-in-law Indira Pineda. Morales slept on the couchin the living room. A romantic relationship between Morales and Diaz began when he was15 or 16 years old and they been together for about four years before the stabbing incident, which occurred in the early morning hours of September 5, 2009. The two usually metat her house on the cornerofJulian Street and 19th Street or somewhereelse. During the time that they were involved, Diaz was married and had four children. Her oldest child was L.S., who Morales thought was about 16 years old. According to Morales, a week or two before the incident, Diaz broke up with Morales over the phone andtold him that she did not love him anymore. Between about 1:00 a.m. and 1:30 a.m. on September 5, 2009, Morales heard hard knocking on the door and the window ofhis apartment, apartment one. When he peeked out the window,he saw Diaz and two females whom he did not know. The window was partly open and Morales heard Diaz and the others say, "Comeout you fucking asshole." He wentto put on his shoes and, while he was putting them on, he heard the window break. ; Defendant Diaz's petition for writ ofhabeas corpus, which we considered with this appeal, is resolved by a separate order. Onthe night of the September 2009 stabbing incident, Morales's mother Rosales was in bed whenshe heard Diaz yelling and the window break; she then wentinto the living room. Rosales called 911. Pineda, Morales's sister-in-law and Rosales's daughter- in-law, was awakened by screaming. Pineda recognized Diaz's voice. As Pineda was going into the living room, she heard Diaz yelling for Morales to come outside and saw Rosales in the living room and Morales near the front door. Diaz sounded aggressive and was calling Morales namesand using vulgar language, like "son of a bitch," "fucking asshole," and "asshole, jerk." . | Rosales knew Diaz from Guatemala; they had lived in the same village or town. Pineda also knew Diaz from Guatemala, where they had been neighbors in the same village or city when Pineda wasa child. Here in San Jose, Diaz would often cometo the street in front of their apartment and shout for Morales to come out. Pineda had seen Diaz outside the apartment when Diazvisited Morales. But Diaz did not spend time with Rosales's family. Neither Rosales nor Pineda knew the other two females. Morales had a feeling of dread when the window broke but he knew his family was inside the house. Diaz repeatedly demanded that Morales come out. Morales opened the doora little, stepped partially out the door, and saw broken glass. He asked, "What's going on?" and "Whyare you doing this to me?" Diaz and the other two women attacked Morales, grabbing him by the hair and dragging him twoor three meters into the drivewayin front of his apartment. Diaz wascalling Morales "a son of a fucking bitch" and a "fucking asshole"and yelling profanities at Morales. Pineda heard Diaz say to Morales, "I'm going to kill you son of a bitch." Morales heard someone say "puro catorce," which in English means "only 14" and which, to Morales, indicated a Norteno gang. Rosales wastelling the womento "let him go" and they were shoving her out of the way. The womenwerehitting him with their hands, both open andclosed,all over his body and kicking him with their feet; Morales was covering himself. He was knocked to the ground. Morales was scared. He had not expected Diaz to do anythinglike that to him. Diaz stepped back from the assault and snapped twice and whistled. Three men emerged from behind a car and crossedthe street and began hitting Morales as well. Morales again heard "puro catorce" as the men arrived. The men kicked Morales, pulled his hair, and hit him with open hands. Diaz washitting him again. Morales suddenly felt something in his right side stomach area and felt weak. Rosales wasyelling at them to leave Morales alone and Morales wastrying to get away. Rosales waspulling on the shirt of one of the men andshe did not realize that the man was stabbing Morales until she saw blood gushing out. She then saw his knife. Rosales did not see Diaz holding a weaponofany type. Morales wasfeeling very lightheaded and saw a hand with a blade comingat him and put up an arm to protect himself. The blade wentall the way throughhisleft forearm. During the attack, Morales was trying to cover up his body. Morales heard them repeatedly call him a "fucking asshole" and heard someone say "puro norte," which means "only north" and conveyed to him that they were in a gang. According to Morales, one ofthe two females accompanying Diaz was wearing a white shirt, wastaller than him, and had "white skin" and long "dark yellow hair," and . appeared to be about 17 or 18 years old. He rememberedthat the other female was short and Hispanic. Morales did not see any tattoos on them but he knew that Diaz had a red butterfly tattoo on her back. Rosales recalled that one of the two was wearing a sort of gray-colored sweater and the other was wearing a red shirt. The men's clothing made Morales think they were "Cholos," by which he meant they were in a gang. One man lookedlike Diaz's son L.S. and he was wearing a white shirt with someredlettering; this was the person who stabbed him. Another man's face was familiar from the neighborhood. The man whom Morales believed was Diaz's son was about Morales's height, he was "a little bit fuller than" Morales, who weighed about 200 or 210 pounds. The attack lasted about five minutes and then sirens were heard. All the assailants except Diaz ran off, got into the car, a Lincoln, and seemed to be waiting for Diaz. Before she took off, Diaz approached Morales andlifted his shirt. She saw his wound, called him a "fucking asshole," and laughed. She told Morales, "Ifyou don't die from this one, you'll die next time around." Pineda, who had witnessed the stabbing, was scared. Pineda told Diaz something to the effect, "leave him alone, he's already hurt." Diaz looked angry and appeared ready to hit Pineda; Pineda grabbed Diaz's hands to prevent Diaz from hitting her. Diaz was calling Pineda a "fucking bitch." Pineda said, "Please don't hit me becauseI'm pregnant." Even thoughhefelt dizzy, Morales, who was wearing tennis shoes, kicked Diaz in order to protect his sister-in-law. Diaz gestured for the assailants to come back and one of them was about to come back across the street when a siren was heard. Diaz told Pineda, "T'm going to kill you." Diaz said to Pineda and Rosales, "You're going to pay for this." Diaz indicated that she was going to kill everyone wholived there "one by one." Pineda remembered trembling because she wasterrified. Pineda did not see any type of object in Diaz's hand on the night ofthe incident. The sirens sounded closer and Diaz left. Morales testified that he heard Diaz say "puro catorce" as she wasleaving. Cesar Hernandez, the brother of Rosales's husband,slept in the living room of apartment one. Attrial, he identified Diaz from the incident. He did not go outside until Rosales was saying that Morales was about to die. When he went outside, he saw Morales against a wall, grabbing himself. Morales was bleeding and he saw lot of blood. He saw people getting into a car acrossthe street. He heard Diaz angrily yell that "she wasn't garbagethat she could beleft so easily." He saw Diaz and Pineda yelling at each other. He went back into the house and then, looking out the window, he saw Diaz leave. | Alvaro Hernandez, Rosales's husband, was asleep when theincident began. After Rosales woke him up, he heard a woman screaming outside, and Rosales said, "Get up because they're going to kill him." When he wentto the front door, he saw a woman screaming at Rosales that she was goingto kill everyone. He heard Pinedasaying, "Leave, leave." A group ofmen and womenwerecrossingthestreet and getting into a car parked on the other side of the street. The threatening womantook off. He saw that Morales was hurt and bleedinga lot. Alvaro Hernandez gave Moralesa shirt to wrap around himself right after the attack. Rosales was on the phoneto police. The recorded 911 call was played for the jury. The recording contains inaudible portions and a few snatches ofvoices ofunspecified speakers. At one point, Rosales reported that "she came with many cholos" and "[a] man stabbed him--" No threats can be heard on the recording. On September 5, 2009, Rommel Macatangay,a San Josepoliceofficer, was dispatched to a disturbance andarrived at about 2:00 a.m. He wasthefirst to arrive. He saw large quantities ofblood in multiple locations, broken glass, and a broken window of an apartment. Morales, who wasbleeding heavily, was with family membersat the front of the apartment complex's driveway. Officer Macatangay informeddispatchofthe medical emergency situation. Morales told the officer that he had been stabbed. Francis Magalang,a San Jose police officer, was on duty the night of September 5, 2009. He was dispatchedto the scene of a reported stabbing. Hearrived at about 2:05 a.m. and saw thevictim sitting on a curb. His clothes were heavily soaked in blood and he wasbleeding heavily. Officer Magalang noticed trail ofblood starting from the doorway of an apartment, going along the driveway, and endingat the curb line where the victim was sitting. Emergency personnelarrived shortly thereafter. The emergency personnel removedthe victim's clothing. Eduardo Sandoval, a Spanish-speaking,certified bilingual San Jose police officer assisted with the investigation ofthe stabbing incident on September 5, 2009. Hefirst spokeprivately with Rosales, the mother of the victim, who was "in complete shock," "in tears, andterrified." She wasfearful for her life and the lives of family members. Officer Sandoval spoke privately with Pineda. She also appeared to be in a state of shock and terrified. The officer briefly spoke separately in private with Alvaro Hernandez and Cesar Hernandez, who wereboth still shaken up but had not seen the actual stabbing. - Dan Collins, a San Jose police officer, was askedto assist in locating suspects in a stabbing incident and wasonthe lookout for suspect Diaz, whose description he had been given, and a dark Lincoln Town Car. Officer Collins and San Jose Police Officers Joseph Njoroge and Guy Ezard proceeded to 903 East Julian Street, the address of a Lincoln registered to Diaz and Diaz's last known mailing address. The front door of the corner houselocated at that address faced East Julian and its garage faced the cross-street. The officers parked and approachedthe house at 903 East Julian Street on foot at about 3:30 a.m. Someone on the porch turned toward the officers and then went down the stairs, and started to run westbound on East Julian Street, away from the officers. Officers Collins and Njoroge pursued, identified themselves as law enforcement, and ordered the person, who appearedto be female, to stop. Officer Njoroge described her as a short, heavy-set female wearing flip-flops. She wastrying to run, but it was more ofa fast-paced walk. Officer Njorogetestified that she had an unsteady gait and appeared intoxicated. The fleeing female crossed an intersection and then, about mid-block, she stumbled andfell and the officers caught up with her. At that point, Officer Collins observed that she was a Hispanic female who matched the description of suspect Diaz, who had been described as a short Hispanic female, approximately 200 pounds. After being asked her name in Spanish, the womanidentified herself as "Dora Diaz." She was wearing dark jeans. Officer Collins could not recall whether Diaz had smelled of alcohol and he did not conduct a field sobriety test. Officer Njorogetestified that he smelled alcohol on Diaz, her speech wasslurred, she had "red bloodshot watery eyes" and she appeared heavily intoxicated. But Officer Njoroge acknowledgedattrial that Diaz had been responsive to police commands and questions. Officers Collins and Njoroge each identified defendant Diaz at trial as the female who hadtried to flee. Asthe officers were attempting to obtain more information from Diaz, a dark Lincoln Town Car drove past them eastbound on East Julian Street, slowing to a near stop against a green light and then turning north onto 19th Street. Officer Collins put out a broadcast regarding the vehicle. Officer Ezard, who had remainedwatchingthe residence at 903 East Julian, saw a male look out the front door, look at him, and close the front door. The officer called for additionalofficers to set up a "perimeter" of the house. As additional resources were arriving, a dark Lincoln Town Car, which matched the description of the vehicle seen leaving the stabbing incident, pulled up nearthe residence's garage. Derrick Antonio,a San Jose police officer who arrived about that time, saw the vehicle arriving. Officer Ezard told the driver to stop the vehicle. Officer Antonio ordered the occupants, a Hispanic male driver and a Hispanic female passenger, to get out of the car. He ordered the male to the ground. The male had numeroustattoos, including a star tattoo on his face. Officer Njoroge described the female as a 15 or 16 year old who wasintoxicated. When Officer Njoroge examinedthe interior of the vehicle, he noticed what appeared to be blood in the back passenger compartment. When Officer Ezard looked inside the car after the occupants had been removed, he saw some blood smear stains on the rear, passenger-side door. Jason Cook, a San Jose police officer who wasassisting with the investigation, wasreassigned to a perimeterposition to secure 903 Julian Street, which wasin the "JSP" or "Julian Street Posse" gang area. Officers Cook and Antonio assisted in the search of the residence. All areas of the home were being used as sleeping quarters. Theliving room had two bunk beds and was messy. Approximately eight individuals were inside the house. Officer Cookfirst spoke with a 38-year-old male, Gerardo Sosa. The officer also spoketo L.S., one of his two teenage sons who werepresent. L.S. was approximately 17 years old and he had no immediately visible tattoos. The other son, Guillermo Rodriguez, an 18-year-old Hispanic male, had "SJ"tattooed on his left arm and "ES" tattooed on his right arm. Rodriguez was wearing red belt with a buckle with the letter "S" on it and another buckle with theletter "J" on it. Officer Antonio spoke with Rodriguez. Inside the residence, Officer Antonio found a cell phone with photographs of Rodriguez. Thecell phone's screen said "VBW." Joseph Kalsbeek, a San Jose police officer assigned to process evidence and take photographs, wentto the residence at 903 East Julian on the corner of 19th. He confirmed that the photographs taken accurately depicted what he had seen. A number of photographs showed the suspect Lincoln sedan that had parked at that location. The officer saw blood inside the vehicle on the rear passenger door, seat, and door handle and on the front passengerseat. Attrial, Morales identified the vehicle in the photographs as the car from behind which the three men emerged and whichleft the area after the stabbing. Cesar Hernandezidentified the vehicle in the photographsas the car that he saw that night. A photograph showedtheinitials "JSP" in very large letters spray painted on the street in front of the house at 903 East Julian Street. Inside the residence, Officer Kalsbeek located some blood onthe wall and the light switch near the front door. There wasalso a bloodstain on the inside of the front door of the house and on the carpet or cement. Officer Kalsbeek was directed to bloody clothing and shoes under a bottom bunk in the living room area, which other officers had discovered. He photographed a white T- shirt with some red design andlettering, white Nike shoes, and a tan Dickiesshirt. Officer Klasbeek returned to the stabbing scene at the apartment complex and took photographs documenting it. A numberofthe apartmentunits, including apartment one which wasclosest to the street, opened onto a driveway. There was a broken window next to the front door of apartment one and a large amount ofblood on the ground in front of that apartment. There was some bloody clothing, which had holes consistent with puncture wounds,in front of apartment one. A bloodtrail led westbound on the drivewayin front of apartments two and three. There was blood on the wall and door of apartmentthree anda trail of blood going from apartmentthree to a fence across the driveway facing the apartment. There was bloodat the base of the fence and on the fence itself. The officer noticed shoe patterns in the blood. A bloody cell phone, in several pieces, was found at the scene. On cross-examination, Officer Klasbeek acknowledged that he had been unable to match the shoe tread of Diaz's shoes to any shoe pattern in the blood. At somepoint, Officer Klasbeek received and photographed Diaz's jeans, which had bloodstains on the left upper thigh and the left rear pocket. Healso receiveda cell phonethat had a red shark logo as wallpaper. The following items of evidence that had been collected were submittedto the Santa Clara County Crime Lab for DNA analysis: victim Morales's clothing, Diaz's shoes 10 and clothing, and the white T-shirt, the tan Dickies brand shirt, and the Nike Cortez shoes found underthe bed at 903 East Julian. A blood sample was taken from defendant Diaz and a cheek swab was taken from Morales for DNA analysis. Ashley Elliott, a DNA analyst from the Santa Clara County Crime Lab, did a preliminary screening onall the evidence. Both defendant Diaz's shoes and herjeans reacted positively to the presumptive test for blood. The white T-shirt, the tan Dickies shirt, and the white Nike shoes from under the bed produced a presumptive positive for blood. Cuttings were taken from each item for further DNA analysis. Cathleen Trowbridge, a criminologist at the Santa Clara County Crime Lab, testified as an expert in DNA analysis. She tested items received from Ashley Elliott. Twocuttings from Diaz's clothing produced DNA from a single source, Morales. A swab from Diaz's shoes produced a mixture ofDNA from at least four individuals, including Morales and Diaz. The three cuttings taken from clothing found under the bed and swabs from the shoes found under the bed produced DNA from a single source, Morales. The emergency room physician at the Regional Medical Center diagnosed Morales with multiple stab wounds, twoto the left mid-forearm, twoto the right mid-chest, and two to the lower back. He wasalso diagnosed with traumatic right hemathorax (blood in the lungs), liver laceration, and right pulmonary contusion. He suffered acute bloodloss resulting in anemia. His treatment required a blood transfusion, a chest tube to drain blood from the lung, and suturing. In addition, Morales hadlacerations andsoft tissue contusionsto the left arm and lacerationsto the right back and flank. His injuries were considered life threatening and he was admitted to the intensive care unit. Roughly twoorthree hours later after Officer Magalang had respondedto the scene, the officer spoke with Moralesat the hospital for five to 10 minutes. Morales's 11 wounds were dressed and bandaged. He was heavily medicated and very groggy. The officer spoke in English and the victim answered in broken English. Francisco Hernandez,a city of San Jose police officer, spoke Spanish and was a certified bilingual officer. On September 8, 2009, Officer Hernandez spoke with Rosales for about 10 minutes. Rosales reported that Diaz had said, "I hope you die from this. If you don't, you will next time" and "Die,die, die." She said that Diaz had been dating her son. Sometimeafter his discharge, Morales returned to the hospital for the removal of stitches and staples. He took pain medication for about a month and a half. At the time of trial, he wasstill experiencing numbnessin his right, middle chest and was notable to fully extend his fingers. Hestill did not have his usual hand strength. Hestill had scars. Morales acknowledgedthat he had asked the prosecutor to drop charges against Diaz when he cameinto court in November 2009. Morales told the prosecutor that Diaz did not hurt him. At trial, Morales explained that he had spoke out of fear and was afraid that some of Diaz's relatives might go to his house where children were present and hurt someone. Morales spokewith private investigator Claudia Silva in November 2009 and he then said that Diaz had nothing to do with the assault on him. Attrial, Morales explained that he had spokenoutof fear because he did not want anything to happen to his family. The next day, Morales went to speak to investigator Silva again andtold her that he was retracting whathe had said the previous day and that Diaz did in fact assault him. Morales spoke with Sergeant Alfonso sometimeafter speaking with the prosecutor. Morales then said that Diaz did not break the window. Morales remembered that, during the same conversation,he told the sergeant that Diaz wasnot one ofpeople who stabbed him andhe indicated that another person had stabbed him and defense 12 counsel had "used the name Bonilla in talking about that person." Attrial, Morales testified that the person that had actually stabbed him lookedlike Diaz's son L.S. Morales wasafraid of Diaz at the time of the attack and wasstill afraid of herat the timeoftrial. He was scared that people would be looking for him and he was worried for his family and did not want anything to happen to his mother's children. Since the incident, he had continuedto feel nervous and traumatized andhesaid that he fearfully looked around every time he went out and wasnot sleeping as well as he used to. Rosales testified that she is still afraid whenever she goes out. Pineda wasalsostill afraid at the timeoftrial. At trial, Morales testified that he was not a gang member,he did not havefriends who were gang members,and he did not hang around people who were gang members. He hung out with people who were from Guatemala like him and spent mostofhis time with his family. He had neverbefore had any sort ofproblems with the group that attacked him. Morales acknowledged that he knew Diaz was married when he began dating her. He admitted that he had been very much in love with Diaz and had her nametattooed over his heart about six months before the incident. Morales had othertattoos in addition to the "Dora" tattoo. Those included tattoos of his father's name,a bird, a rose, a cross, and a virgin. Healso had tattoo of the Spanish wordfor "love," a letter on eachfinger. He obtained all the tattoos, except the "Dora" tattoo, while in Guatamalaprior to dating Diaz. Anthony Alfonso, a San Jose police officer, was a detective with the family violence unit of the police department during September 2009. He had previously worked for three yearsas a detective in the gang investigation unit investigating all crimes committed by Nortenos. Atthe time oftrial, he was a patrol supervisor. 13 Detective Alfonsotestified as an expert regarding gangs, gangactivity and gang investigation. Detective Alfonso had spoken with Morales, through a Spanish-speaking detective, fouror five timesafter the incident. Hefirst spoke with Morales at Morales's home on September 9, 2009. They spoke for a couple of hours. In Detective Alfonso's opinion, none of Morales's tattoos were gangtattoos. Detective Alfonso explained that the general purpose of a gang is to commit crimes, to intimidate and control their neighborhood, and use violence to enhancethe gang's reputation. If an assailant calls out the name of a gang during an assault, the information that a gang is responsible spreads quickly to the streets and bolsters the gang's reputation and an individual gang member's status. Groups of gang members may attack members of other gangs or individuals who are not gang membersbutlive in their neighborhoodin order to control the neighborhood. According to the detective, Nortenos claim northern California and San Joseis consider a Norteno City. Norteno gangs associate with the color red and theletter "N" and the number "14" because "N"is the fourteenth letter of the alphabet. They use the Spanish word for 14, "catorce," four dots, "anything with San Jose or 'San Ho' "or the San Jose Sharks, the northern star or anything associated with north, or the "408"area code. Displaying a gang's colors or symbols showsallegiance to and pride and membership in the gang andthe display is used to intimidate others. Gang members maybeidentified by self admission,tattoos, clothing, or other gang members. Nortenotattoos could include, for example, the Spanish wordfor north, “norte,” the "408" area code, a San Jose zip code, a red Sharks fin, ora star. Respectis very importantin gang culture. A gang memberwill typically have to react with violence to maintain statusifhe is disrespected by a rival gang member. 14 Specific neighborhood Norteno gangs come underthe umbrella of the Nortenos. Sometimes San Jose gang memberswill be connected to, and will tattoo themselves with, a reference to a geographic location within the city, such as "NSSJ" ("North Side San Jose") or "ESSJ" ("East Side San Jose"). Sometimes a gang will take the nameofa street or an apartment. "JSP" stands for Julian Street Posse, whichstarted as a tagging crew in 2000 and evolved into a Norteno criminalstreet gang. When someoneyells out "puro norte" or "puro catorce" while committing violence, the victims and witnesses will know that Nortenos are responsible. That information enhancesthe reputation of the gang and the members involved andalso serves as a warning to those who might want to cooperate with police. Detective Alfonso was familiar with the star tattoo visible in the photographofthe Hispanic male driver of the Lincoln He explained that "the star or the northern star can be associated to Norteno, along with other things." In his opinion, a person with a star tattoo, a four dots tattoo, a 408 tattoo, and a San Jose Sharks tattoo would be a Norteno gang member. He confirmedthatred clothing may signify gang membership or affiliation, depending uponthetotality of circumstances. A red Sharks logo on a person's cell phone mayalso identify the person as Norteno, depending uponthetotality of circumstancesfor that individual. Based on information received from other officers, Detective Alfonso believed that the house at 903 East Julian Street was a Norteno hangout. The discovery of clothing with red lettering in that residence would reinforce that opinion. Whenasked about Rodriguez's tattoos, belt and belt buckles, Detective Alfonso explained that "ESSJ" stood for "East Side San Jose" and indicated Norteno gang membership. Hesaid a red belt was commonand indicated that the buckles’ "S" and "J" stood for San Jose, which is deemed a Norteno city. When asked about the cell phone 15 displaying "VBW,"the detective stated that the initials stood for "Varrio Bloody Waters," which wasa tagging crew aligned with the Nortenosbut notyet a criminalstreet gang. In the opinion of Detective Alfonso, L.S. was a gang member. His belief was based on L.S.'s tattoos and admissions. L.S. had "NSSJ," which stands for "North Side San Jose," tattooed on his knuckles. L.S. had the number 14 tattooed onhis hand. L.S. had admitted to being a memberofthe Julian Street Posse during atleast four police contacts. When L.S. wasarrested for a probation violation about a monthafter the stabbing incident and he had a knife in his possession, L.S.told officers that the knife wasfor protection against rival gang members. Even though L.S. is Diaz's son, there were insufficient indicia for Detective Alfonso to conclude that Diaz was a gang member. Heagreed that Diaz's husband was not a gang member. He acknowledgedthatit is quite common for gang membersto live with other family members whoarenotaffiliated with the gang. The detective agreed that gang members are knownto carry weapons. Gang members must have their weaponsreadily available since they do not know whenthey will be needed given "the very nature ofwhat they doandtheir violentlifestyle and the rivalries ...." Some gang members carry weapons at all times while others hide them nearby. A knife is the most common weapon for gang members becauseit is extremely easy to get, it is easy to use, and easily concealed. B. The Defense Case The defense presented no evidence. I Discussion A. Admission ofGang Evidence Defense counsel movedin limine to exclude evidence of gang membership or affiliation on grounds that defendant Diaz had not been charged with a gang crime and no 16 gang enhancementhad beenalleged. The defense specifically sought to exclude evidence that defendant Diaz resided in a Norteno house, her son was a validated member or associate ofthe Julian Street Posse, and her former codefendant, Adrian Bonilla, was a Norteno. The defense contendedthat the evidence should be excluded under Evidence Codesection 352. At the hearing, defense counsel argued that the gang evidence was highly prejudicial and Diaz would notget a fair trial. Counsel contendedthat it was a domestic violence, not a gang, case and the gang evidence would inflamethe jury against Diaz. | The prosecutor argued that gang evidence wasrelevant and admissible with regard to the issue of Diaz's knowledgethat a knife would be used, herintent to aid and abet attempted murder, and the fear element of the section 422 counts (criminalthreats). It wasthe People's theory that Diaz's son was the stabber and the evidence regardinghis gang membership andtheirresidence in a known Norteno house tended to "corroborate the fact that she orchestrated this attack" and "she was aware ofwhat was going to happen during the attack." The prosecutor told the court that defendant appeared to orchestrate the attack and signaled a second groupto join in the beating by whistling or gesturing. Sheinsisted that the gang evidence wasrelevantto the People's aiding and abetting theory in that Diaz was associating with gang members who are knownto be violent and carry weaponsandthe evidence tended to show that Diaz knew someone was going to use a weaponin the attack and she possessedthe specific intentto kill. The prosecutor assertedthat evidencethat the victim of, and witnessesto, the stabbing believed the perpetrators of the attack wereaffiliated with a gang bore on whether their fear was actual, reasonable, and sustained. The court remarkedthat a stipulation or testimony that Diaz was not a gang member would lessen the possibility ofundue prejudice. Uponthe court's inquiry, the 17 prosecutor indicated her willingness to ask the People's gang expert whether Diaz was a gang memberandstatedthatit did not appear that Diaz was a gang member. Defense counsel argued that the gang evidence was improper becausethe prosecution could not show that Diaz had any direct knowledge "ofhow a gang is going to operate or what a gangis going to do." The prosecutor countered that Diaz wasliving in a known Norteno home and "there has to be some reasonable inference that mother has. some knowledge as to whather childrenare up to." The court told defense counsel that the defense could "certainly elicit facts that would be inconsistent with having a gang do her dirty work ...." The court determined that the gang evidence wasrelevant to elements of section 422 and defendant's specific intent to kill. It concluded the evidence was far more probative than prejudicial because the prosecutor's theory is that Diaz intendsto kill and "[i]t's a group ofpeople that she can count on to complete the job." The court also observed that Diaz's threats were "going to be taken more seriously when she's got a gang ofpeople behind her. . . as opposed to random individuals ...." The court indicated that the defense wasfree to thoroughly argue that Diaz had "no control over these people . . . because she's not a member of the gang.” On appeal, defendant maintains that the gang evidence wasirrelevant and prejudicial and its admission violated her federal due processrights. Since she did not object in the trial court to the admission of gang evidence on due process grounds, she "may not argue on appeal that due process required exclusion of the evidence for reasons other than those articulated in [her] Evidence Codesection 352 argument." (Peoplev. Partida (2005) 37 Cal.4th 428, 435.) She may only contendthat "the asserted errorin admitting the evidence over [her] Evidence Codesection 352 objection had the additional legal consequenceofviolating due process." (Ibid.) 18 Evidenceis relevantif it has "any tendency in reason to prove or disprove any disputed fact that is of consequenceto the determination of the action." (Evid. Code, § 210.) In general, "all relevant evidence is admissible." (Evid. Code, § 351.) "[E]vidence related to gang membership is not insulated from the generalrule that all relevant evidenceis admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1049; Evid. Code, §§ 210, 351.)" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) "Although evidence of a defendant's gang membership createsa risk the jury will improperly infer the defendant has a criminal disposition andis therefore guilty of the offense charged-and thus should be carefully scrutinized by trial courts-such evidenceis admissible whenrelevant. . . if its probative value is not substantially outweighed byits prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193.)" (People v. Carter (2003) 30 Cal.4th 1166, 1194.) A trial court's ruling on the admission of gang evidence is reviewed for abuse of discretion. (/bid.) Here, the gang evidence had some tendency in reason to show that defendant Diaz lived with gang members in a known gang house, inferably knew that her son L.S. was a gang member, and sheenlisted him, and possibly other gang members,to help carry out the attack on Morales. The gang expert testified that gang members are knownto carry weapons and commonly carry knives and engage in violence. The gang evidence, together with other evidence indicating Diaz was orchestrating the attack on Morales and intended for him to die, tended to counter the defense's argument that she had no knowledge that Morales would be stabbed and nointentto kill Morales at the time of the stabbing. "[T]he facts from which a mental state may be inferred must not be confused with the mentalstate that the prosecution is required to prove." (People v. Beeman (1984) 35 Cal.3d 547, 558.) "Mentalstate and intent are rarely susceptible of direct proof 19 and must therefore be proven circumstantially. (People v. Smith (2005) 37 Cal.4th 733, 741; People v. Beeman (1984) 35 Cal.3d 547, 558-559.)" (People v. Thomas (2011) 52 Cal.4th 336, 355.) Defendantalso asserts that the gang evidence wasirrelevant to the criminalthreat charges. Wereject her contention that, since there was no "evidencethat the victims | knewthat any of the assailants were gang members," "the victims could not have feared [her] on that basis." Morales indicated that the male perpetrators were dressedlike "cholos," meaning that they were gang members. Healso understood "puro catorce"to refer to a Norteno gang. During the 911 call, his mother Rosales said that "she came with many cholos." The evidencethat gang involvement was made knownduringthe attack on Morales was relevant to whether Diaz's threats caused any ofthe criminal threat victims "reasonably to bein sustained fear for his or her own safety or for his or her immediate family's safety ...." (§ 422, subd. (a).) The circumstances surrounding commission of an alleged criminal threat may be circumstantial evidence ofthe basis for and reasonablenessofa victim's fear. (Cf. People v. Holt (1996) 15 Cal.4th 619, 690 [direct proof of a robbery victim's fear is not necessary; fear may be inferred from the circumstances].) The gang evidence wasrelevant and not cumulative of other evidence on key issues. Accordingly,the trial court did not abuse its discretion in admitting the challenged gang evidence over the Evidence Code section 352 objection. "[R]ejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional 'gloss' as well. No separate constitutional discussionis required in such cases... ." (People v. Boyer (2005) 38 Cal.4th 412, 441, fn. 17.) Defendant Diaz's claim offederal constitutional error must also be rejected. 20 B. Jnstructions 1. “Equally Guilty" Aiding and Abetting Instruction The court instructed substantially in accordance with CALCRIM No. 400: "A person may beguilty of a crime in two ways. One, he or she may havedirectly committed the crime. Two, he or she may have aided and abetted someoneelse who committed the crime. In these instructions, I will call the other person the perpetrator. [{] A person is equally guilty ofthe crime whether he or she committeditpersonally or aided and abetted the perpetrator who committedit." (Italics added.) The italicized statementis generally consistent with section 31, which extends criminalliability in a crime to "[a]ll persons concerned in the commission of a crime, . . . whether they directly committhe act constituting the offense, or aid and abet in its commission... ." (See People v. Samaniego, supra, 172 Cal.App.4th at p. 1163 ("Samaniego") ["CALCRIM No. 400 is generally an accurate statement of law"].) ; Defendant Diaz arguesthat "[t]he effect of the 'equally guilty’ language was to impermissibly instruct the jury that it was required to presume that appellant shared the stabber's intent."* She states that "at least two appellate case have strongly criticized the 4 The People assert that defendant forfeited this contention by failing to askthetrial court to modify or clarify CALCRIM No. 400. The People rely on the principle that "[a] party may not complain on appeal that an instruction correct in law and responsiveto the evidence wastoo general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1024.) But here defendantis claiming that the instruction was not "correct in law" given the evidence and violated her right to due process. We address the merits of her claim since any instruction affecting a defendant's substantial rights is reviewable on appeal without objection (§ 1259; see People v. Wallace (2008) 44 Cal.4th 1032, 1074, fn. 7) and defendantis arguing that CALCRIM No. 400 was misleading with respect to the general principles of aiding and abetting in the context of this case. Therefore, we do not reach the defendant's alternative claim that defense counsel's failure to object constituted ineffectiveassistance. 21 ‘equally guilty’ language" based on the California Supreme Court case ofPeople v. McCoy (2001) 25 Cal.4th 1111 ("McCoy"). She points to People v. Nero (2010) 181 Cal.App.4th 504 ("Nero") and Samaniego, supra, 172 Cal.App.4th 1148. In McCoy, the California Supreme Court resolved the question "whether an aider and abettor may be guilty of greater homicide-related offenses than those the actual perpetrator committed." (McCoy, supra, 25 Cal.4th at p. 1114.) The court concluded: "[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces anotherto kill, that person's guilt is determined by the combinedacts ofall the participants as well as that person's own mensrea. If that person's mens rea is more culpable than another's, that person's guilt may be greater even if the other might be deemedthe actual perpetrator." (/d. at p. 1122, fn. omitted.) The court explained: "The statement that an aider and abettor may notbe guilty of a greater offense than the direct perpetrator, although sometimestruein individualcases, is not universally correct. Aider and abettorliability is premised on the combinedacts ofall the principals, but on the aider and abettor's own mensrea. If the mensrea of the aider and abettor is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator." (/d. at p. 1120.) In Samaniego, supra, 172 Cal.App.4th 1148 three co-defendants were each convicted of two countsof first degree murder. (/d. at pp. 1152-1153.) One victim "died ofmultiple gunshot wounds, having sustainedfive likely-fatal wounds"(id. at p. 1157) and the other victim "died of a single gunshot woundto the head." (Jd. at p. 1160.) "[T]here were no eyewitnesses to the actual shootingof[the two victims] and therefore no evidence as to which appellant was the direct perpetrator." (Jd. at p. 1162.) McCoy wasinvoked in Samaniego, which determinedthat it waserror to give an "equally guilty" aiding andabetting instruction in that case: "Though McCoy concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator,its 22 reasoning leads inexorably to the further conclusion that an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mentalstate. [Citation.] Consequently, CALCRIM No. 400's direction that '[a] person is equally guilty of the crime [of which the perpetratoris guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it' (CALCRIM No.4009,italics added), while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified." (172 Cal.App.4th at pp. 1164-1165.) Nevertheless,it found the instructional error to be harmless beyond a reasonabledoubt becausethe jury necessarily resolved the intent and mental state issues under other proper instructions. (/d. at p. 1165.) In Nero, supra, 181 Cal.App.4th 504, two defendants, a brother and his older sister, were both tried for murderfor a fatal stabbing committed by the brother. (/d.at p. 507.) The prosecution's theory of the case wasthat the older sister, Lisa Brown, aided and abetted the brother, Bennie Nero, by handing him the knife. (/bid.) During deliberations, the jury asked whetherit could find the aider and abettor less culpable or more culpable than the direct perpetrator. (/d. at pp. 509, 511.) The court told the jury that the aider and abettor could not bear greater responsibility than the direct perpetrator. (Id. at p. 511.) Whenthe jury foreperson asked whether an aider and abetter could bear less responsibility, the court responded that the jury may find the alleged aider and abettor not guilty. (/d. at p.511.) The trial court twice reread former CALJIC No.3.00, stating that each principal, including aiders and abettors, are "equally guilty." (dd. at pp. 509-510, 518.) The jury then found both defendants guilty of second degree murder. (Jd. at p. 513.) On appeal in Nero, the reviewing court agreed that "an aider and abettor may be found guilty of Jesser homicide-related offenses than those the actual perpetrator committed." (Id. at p. 507.) The court was aware that "McCoy emphasized, repeatedly, 23 that an aider and abettor's mensreais personal, that it may be different than the direct perpetrator's: ‘guilt is based on a combination ofthe direct perpetrator's acts and the aider and abettor's own acts and own mentalstate’ (id. at p. 1117. .); an aider and abettor's ‘mental state is her own;sheis liable for her mensrea, not the other person's’ (id. at p. 1118 ...); aider and abettorliability is premised on the combinedacts ofall the principals, but on the aider and abettor's own mensrea’(id. at p. 1120...)." (Id. at p. 514.) The court found the "equally guilty" instruction to be prejudicial error in Nero. (Id. at pp. 518-520.) The error was not harmless beyond a reasonable doubt because, under the evidencein that case, the source of the murder weapon's owner was unclear, the jury was impliedly considering whether Brown wasless culpable than her brother Nero, and the court's erroneousinstruction foreclosed the jury from finding Brown was less culpable than Nero. (/d. at pp. 519-520.) Unlike the jury inSamaniegoor Nero, the jury in this case wasnot deciding the guilt or degree of culpability of more than one defendant. Further, even assuming the ‘court erred by giving the "equally guilty" instruction, the error was harmless under other properly given instructions. Asto specific intent, the trial court instructed in this case: "In connection with the charges of count 1, 3, 4, and 5 requiring specific intent, the people have the burden of proving beyonda reasonable doubtthat the defendant acted with a specific intent. The specific intent required in count is intent to kill... ." Thecourt also instructed: "Ifyou find the defendant guilty of attempted murder under count 1, you must then decide whether the People have proved the additional allegation that the attempted murder was donewillfully and with deliberation and premeditation. [{] The defendant Dora Diaz... acted willfully if she intendedto kill when she acted. The defendant Dora Diaz deliberatedif she carefully weighed the 24 considerations for and against her choice and knowing the consequences decidedto kill. Andthe defendant Dora Diaz premeditated if she decided to kill before acting. [f]...A | decision to kill made rashly and impulsively or without careful consideration of the choice and its consequences is not deliberate and premediated." The court told the jury: "The People have the burden ofproving this allegation beyond a reasonable doubt. If the People have not met this burden, you mustfindthe allegation has not been proved." The jury foundtruethat Diaz acted willfully, deliberately and with premeditation in attempting the murder of Morales. Onthe record before us, we can say beyond a reasonable doubt that Diaz would have been foundguilty of attempted murderin the absence ofthe "equally guilty" instruction. 2. Voluntary Intoxication Instruction a. No Prejudicial Error Thetrial court instructed the jury regarding voluntary intoxication as follows: "You may consider evidence[,] if any[,] of the defendant's voluntary intoxication only in a limited way. You may considerthat evidence only in deciding whether the defendant acted with the specific intent required by any crime. A personis voluntarily intoxicated ... by willingly using an intoxicating drug, drink or other substance knowingthat it can producean intoxicating effect or willingly assumingtherisk ofthat effect." After instructing regarding specific intent elements,the court told the jury: "You may not consider evidence ofvoluntary intoxication for any other purpose. Ifyou concludethe defendant wasintoxicated at the timeof the alleged crime, you may considerthis evidence in deciding whether the defendant . . . knew the perpetrator with the knife intendedto kill and intendedto aid and abet the perpetrator with the knife in attempting to kill.” 25 Diaz contends that the trial court erred by failing to instruct the jury that voluntary intoxication may negate premeditation and deliberation and the error was prejudicial and violated her federal due process rights. She asserts that the jury's rejection of the theory that she wastoo intoxicated toform the specific intentto kill does not mean that the jury would also have rejected the theory that she was too intoxicated to premeditate and deliberate. First, defendant wasnotentitled to an instruction that voluntary intoxication may "negate" premeditation or deliberation. Evidence ofvoluntary intoxication is not admissible "to negate the capacity to form any mentalstates." (§ 22, subd. (a).) It is "admissible solely on the issue ofwhether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 22, subd.(b).) Second, the court did not have a duty to instruct sua sponte that the jury could consider voluntary intoxication evidence with respect to the issue whether the defendant premeditated and deliberated. "As [the California Supreme Court] explained in Peoplev. Saille (1991) 54 Cal.3d 1103, 1120... , an instruction on voluntary intoxication, explaining how evidence of a defendant's voluntary intoxication affects the determination whether defendant had the mentalstates required for the offenses charged, is a form of pinpointinstruction that thetrial court is not required to give in the absence ofa request. (See also People v. Lewis (2001) 25 Cal.4th 610.)" (People v. Bolden (2002) 29 Cal.4th 515, 559.) In People v. Saille (1991) 54 Cal.3d 1103, the defendant was convictedofthe first degree murder ofone victim and the attempted murderof anothervictim. (Jd. at p. 1107; see § 189 [a willful, deliberate, and premeditated murder is murderofthefirst degree].) "(T]he instructions given (CALJIC No.4.21) related voluntary intoxication only to the question of whether defendanthadthe specific intent to kill." (/d. at p. 1117.) The 26 defendant contendedthat "thetrial court erred in failing to instruct sua sponte that the jury should considerhis voluntary intoxication in determining whether he had premeditated and deliberated the murder." (/bid.; see id. at p. 1108.) The Supreme Court held that an instruction that relates the evidence ofthe defendant's intoxication to an element of a crime, such as premeditation and deliberation, is a "pinpoint" instruction, which the defense must request, and not a "general principle of law," upon which trial court must instruct sua sponte. (/d. at p. 1120.) It concluded that the trial court did not err. (Jbid.) Here, the record does not disclose that Diaz's counsel requested a pinpoint instruction relating involuntary intoxication to premeditation and deliberation. It follows that the trial court did noterr in failing to give one. Nevertheless, on appeal, defendant arguesthat the given instruction waslegally incorrect because it improperly limited the jury's consideration of the evidence of involuntary intoxication, citing People v. Castillo (1997) 16 Cal.4th 1009. In Castillo, the jury convicted the defendantofthe first degree murder of one victim and the assault with a firearm of another victim. (/d. at p. 1013.) The trial court had instructed the jury to consider the defendant's voluntary intoxication in determining whether the defendant had the requisite specific intent or mentalstate. (/d. at p. 1014.) On appeal, the defendant contendedthat his "defense counsel was ineffective for not requesting that the instruction specifically tell the jury it should consider the intoxication evidence in deciding whether he premeditated the killing." bid.) The Supreme Court in Castillo rejected the defendant's ineffective assistance claim. It found that, underthe totality of instructions, "[a] reasonable jury would have understood deliberation and premeditation to be 'mentalstates' for which it should consider the evidenceofintoxication as to either attempted murder or murder." (/d. at p. 1016.) It also observedthat "[t]he court's instructions did not hinder defense counsel 27 from arguing that defendant's intoxication affected all the necessary mentalstates, including premeditation" and, in fact, "[c]ounsel tied the intoxication evidenceto the issue ofpremeditation and deliberation, even calling the jury's attention to the instructions ...." (/d. at pp. 1017-1018.) The court determined that "competent counsel could reasonably concludethat the instructions adequately advised the jury to consider the evidence of intoxication on the question of premeditation, and that an additional instruction stating the obvious-that premeditation is a mental state-was unnecessary." (Jd. at p. 1018.) In this appeal, defendant Diaz points to the following dicta in Castillo: "The court gave CALJIC Nos.4.21 and 4.21.1 [on voluntary intoxication] as adapted to this case. . . . The Court ofAppeal found the instructions inadequate and misleading. It believed they caused the jury to concludeit should consider the evidence ofintoxication on the . question of intent to kill but could not consider it on the question ofpremeditation. Were that correct, the issue would not.solely be one ofineffective assistance of counsel. If the trial court's instructions were indeed misleading,the issue here would implicate the court's duty to give legally correct instructions. Even if the court has no sua sponte duty to instruct on particular legal point, when it does choose to instruct, it must do so correctly. ‘Although we mighthesitate before holding that the absence ofanyinstruction on voluntary intoxication in a situation such as that presented in this case is prejudicial error, when partial instruction has been given we cannotbutholdthat the failure to give complete instructions wasprejudicial error.' (People v. Baker (1954) 42Cal.2d 550, 575- 576, and quoted in People v. Saille, supra, 54 Cal.3d at p. 11 19.)" Ud. at p. 1015.) Castillo did not overrule Saille despite its dicta and wearestill bound by Saille. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California Supreme Court more recently explained that Sai//e was "a murder case in which we held the trial court was not requiredto instruct on its own motion that the jury should consider 28 the defendant's voluntary intoxication in determining whether defendant premeditated and deliberated. (/d. at pp. 1117-1120... .)" (People v. Rogers (2006) 39 Cal.4th 826, 878.) Thus, in the absence of a defense request, the court was not required to give an instruction informing the jury that it may consider evidence ofvoluntary intoxication in deciding whether the defendant premeditated and deliberated. People v. Baker (1954) 42 Cal.2d 550, which was quoted in Castillo, was obviously taken into consideration in Saille, which also quoted it and nevertheless found the trial court had no sua sponte duty to give a more complete instruction regarding intoxication. Also, the situation in Baker was different than the situation in this case. In Baker, "there was ample evidence of intoxication in the record"in that "[t]here was evidence that defendant had voluntarily taken an overdose of both dilantin and phenobarbital on the night of the killing" and both drugs were "hypnotics," which had the "effect of removingthe inhibitions of the person taking them, and as having an intoxicating effect similar to that of alcohol." (/d. at p. 573.) The trial court had instructed based on formersection 22 that " '[n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.' " (/d. at p. 572; see § 22, subd. (a).) Defendant Baker contended on appeal that "the court erred in not giving an instruction based on the second sentence of [former] section 22: "But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury must take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.'" (/d. at p. 572, fn. omitted.) The California Supreme Courtdeterminedthat, by telling the jury that the "defendant's drugged condition could not influence their decision on any issue submitted to them,"thetrial court "completely negatived" the defendant's defense on the theory of intoxication. (/d. at p. 573.) 29 In this case, the defense's theory was that stabber was a gang memberoutto enhance his own "street credibility" and the gang's reputation and Diaz had no knowledge of the stabber's intent and she did not intend to kill or have a motive to kill. Defense counsel described Diaz's conduct as domestic violence and contended that Diaz was intoxicated when she went over to Morales's apartment. Counsel stated, "I think whatis logical is she was drunk when she wentoverto his apartmentthat night and that would explain the banging, the irrational behavior, the pulling on his hair and using dirty language." Defense counsel pointed out that Diaz had not arrived with a knife. She claimed there was no evidence that Diaz told or asked anyoneto kill Morales, no evidence that Diaz handed anyonea knife, and no evidence that Diaz had any knowledge that someone would use a knife. Counsel maintained that there was no evidenceofintent to kill or ofpremeditation and deliberation. Defense counsel asserted that there was "no nexus between whatshe's thinking and what these men decide to do." Counseltold the jury: "Even if you believe every single witness that was broughtto court and you believe every single thing they said, you cannotfind premeditation and deliberation, you just can't get there. Even if you believe every single thing you heard." Counselalso arguedthat if the jury somehow foundthat Diaz intendedfor the stabbing to occur, voluntary intoxication negated her specific intent to kall. Thus, it was not the defense's theory that defendant Diaz had intendedto kill Moralesbut she hadnotactually premeditated or deliberated in her intoxicatedstate. Rather, the defense maintained that Diaz had nointent to kill Morales. The court's instruction permitted the jury to consider defendant Diaz's voluntary intoxication in deciding whether she hadthe intent to kill, she knew the perpetrator with the knife intendedto kill, and she intendedto aid and abet the perpetrator with the knife in 30 attempting to kill. Ifthe jury had entertained a reasonable doubt that Diaz intendedto kill him, it would not have reached the issue of premeditation or deliberation. Werecognize that a criminal defendant has a right to present a complete defense. (See California v. Trombetta (1984) 467 U.S. 479, 485 [104 S.Ct. 2528] [the Fourteenth Amendmentdueprocessclause's standard of fundamental fairness "require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense"]; Chambers v. Mississippi (1973) 410 U.S. 284, 294 [93 S.Ct. 103 8] ("The right of an accusedin a criminaltrial to due process is, in essence,the right to a fair opportunity to defend against the State's accusations"].) Unlike the voluntary intoxication instruction in Baker, however, the voluntary intoxication instruction in this case, even if incomplete or abstractly inaccurate, did not interfere with or negate the defense's theory ofthe case or Diaz's fundamentalright to present a defense. Thus, even ifwe were to assume arguendothatthe court's instruction incorrectly prohibited jurors from considering evidence of voluntary intoxication on the issues ofpremeditation and deliberation, there wasnoerrorof federal constitutional dimension. The instructionalerror, if any, was a state law error subject to California's Watson standard of review. (See People v. Watson (1956) 46 Cal.2d 818, 836-837; see also People v. Flood (1998) 18 Cal.4th 470, 490; Cal. Const., art. VI, § 13.) There is no reasonable probability that the jury would have found that Diaz had not premeditated or deliberated if it had received an instruction on voluntary intoxication as to those issues as well. Although there was evidence that Diaz wasintoxicated hoursafter the stabbing whenshetried to run from police, there was no direct testimony from the victim or witnesses of the incident that Diaz was intoxicatedat the time of the stabbing. The jury found that Diaz intended to kill Morales despite the intoxication evidence. Given the evidence that Diaz orchestrated the attack on Morales,it is not reasonably probable that a 31 result more favorable to defendant would have been reachedin the absenceofthe alleged instructionalerror. 32 b. Ineffective Assistance ofCounsel Claim Defendant Diaz alternatively argues that defense counsel's failure to request a voluntary intoxicationinstruction that also related voluntary intoxication to premeditation and deliberation constitutes ineffective assistance of counsel. She maintains that there wasnopossible tactical reason for not making such a request. Defense counsel impliedly made a strategic decision to focus on arguing that Diaz lacked foreknowledgeofthe stabbing and intent to kill. Counsel could have reasonably believed that additional instruction on voluntary intoxication was unnecessary, especially sinceit was highly unlikely that the jury would find that Diaz had the intent to kill but had not premeditated or deliberated given the circumstancesofthe attack. In any case, for the same reasonsthat any instructional error with regard to voluntary intoxication was not prejudicial, there isno reasonable probability that the result of the proceeding would have been different had defense counsel requested a further instruction relating voluntary intoxication to premeditation and deliberation. Wereject defendant's ineffective assistance claim. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [104 S.Ct. 2052]; Harrington v. Richter (2011) ___—* U.S. ___ [131 S.Ct. 770].) 3. Cumulative Effect ofForegoing Instructional Errors Defendant argues that her Fourteenth Amendmentdue processright to a fair trial was violated by the cumulative effect of "telling the jury that [she] was 'equally guilty’ as the direct perpetrator and byfailing to tell the jury that [her] voluntary intoxication could negate a finding ofpremeditation and deliberation." Wefind no instructionalerrors cumulatively denying her a fundamentally fair trial. 4. Failure to Instruct Jury to Consider Defendant's Oral Statements with Caution Defendantasserts that the trial court erred by failing to instruct sua sponte that the jury must considerher extrajudicial, oral statements with caution, as explained by the 33 standard CALCRIM No.358. When warranted by the evidence, a trial court must give a cautionary instruction regarding a defendant's oral admissions sua sponte. (See Peoplev. Carpenter (1997) 15 Cal.4th 312, 392, abrogated by Proposition 115 on otherpoints as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) The bench notes for CALCRIM No.358 presently observe that People v. Zichko (2004) 118 Cal.App.4th 1055, 1057 holds that a court has no sua sponte duty to give such a cautionary instruction ina criminal threats case. (Bench Notes to CALCRIM No.358 (2012 ed.), p. 134.) Defendantstates that "[e]ven if the words of a threat are not, legally speaking, an admission, it does not follow that there is no need for jurors to consider with caution a statementthat is alleged to constitute a criminal threat." She points to People v. - Carpenter, supra, 15 Cal.4th 312 and suggests that Zichko may have been wrongly decided. In Carpenter, during an attempted rape andthe killing of a victim, the defendant said to the victim, "I want to rape you." (/d. at p. 345.) Although the Supreme Court recognized that the defendant's statement was “part of the crime itself," the court concludedthat thetrial court should have given the cautionary instruction as to that statement. (/d. at pp. 392-393.) It explained: "The rationale behind the cautionary instruction suggests it applies broadly. 'The purpose ofthe cautionary instruction is to assist the jury in determining if the statement wasin fact made.' (People v. Beagle [(1972) 6 Cal.3d 441,] 456... .) This purpose would apply to any oral statement of the defendant, whether madebefore, during, or after the crime." (Jbid.) In Zichko, the defendant madea criminalthreat in connection with demanding to withdraw money from a bank but he was foundnotguilty by reason ofinsanity. (People v. Zichko, supra, 118 Cal.App.4th at pp. 1057-1058.) The court held that the cautionary instruction regarding oral admissions "is not to be given when defendant's words constitute the crimeitself." (/d. at p. 1057, fn. omitted.) The court's reason wasthat 34 Zichko's statements "constituted the crime [of criminal threats], not admissions of the crime." (/d. at p. 1059.) The Zichko court concluded that People v. Carpenter, supra, 15 Cal.4th 312 was "inapposite" to the case because defendant Carpenter's statement, "I wantto rape you," was “not the criminal act of attempted rape." (/d. at p. 1059) Zichko's reasoning is not convincing. An admission has been described as a defendant's "recital of facts tending to establish guilt when considered with the remaining evidencein the case. [Citations.]" (People v. McClary (1977) 20 Cal.3d 218, 230, disapproved on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17.) But the Supreme Court in Carpenter indicated that the cautionary instruction applied to all oral, out of court statements made by a defendant and did notrestrict its application to only oral statements that admit or acknowledge a fact. In Carpenter, the Supreme Court mentioned People v. Ford (1964) 60 Cal.2d 772, 780-784, 799, in which it had found that the trial court "should have given the cautionary instruction regarding evidence of defendant's statements during the entire course of the events surrounding the crime, including somejust before and somejustafter the fatal shooting." (People v. Carpenter, supra, 15 Cal.4th at p. 392.) In fact, CALCRIM No.358 refers to evidence of a defendant's statements and neveruses the term "admission."° The Supreme Court has more recently stated: "We have long recognized that this cautionary instructionis sufficiently broad to coverall of a defendant's out-of-court statements. [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 957.) ° Similarly, CALJIC Nos. 2.70 and 2.71 (Fall 2011 ed.) at pages 112 and 114 broadly define an "admission" for purposes of those cautionary instructions as "a statement madeby[a] [the] defendant which doesnotby itself acknowledge[his] [her] guilt of the crime[s] for which the defendant is ontrial, but which statement tends to prove[his] [her] guilt when considered with the rest of the evidence." 35 Zichko seemsto havecreated a false dichotomy between a statement that constitutes a crime and a statement that is evidence of a crime. In Zichko, the evidence of the defendant's statements in the bank were direct evidence of the fact of those statements, an element ofthe criminal threats offense,° whereas, in Carpenter, the defendant's statementto the victim was direct evidence ofhis state ofmind, also an element ofthe crime of attempted rape.’ We discern noreal legal distinction between a statementthat is "the crime itself" (People v. Zichko, supra, 118 Cal.App.4th at p. 1059) and a statementthat is "part of the crime itself" (People v. Carpenter, supra, 15 Cal.4th at pp. 392-393). : Ordinarily, a crime requires both an act and a culpable mental state. (See § 20 ["In every crimeor public offense there must exist a union, or joint operation of act andintent, or criminal negligence"]; People v. Anderson (2011) 51 Cal.4th 989, 994.) In general, a crime may be proved bydirect or circumstantial evidence, or a combination of both. (See 6 "In order to provea violation of section 422, the prosecution mustestablish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant madethe threat ‘with the specific intent that the statement. . . is to be taken as a threat, even if thereis no intentofactually carryingit out,’ (3) that the threat—which may be ‘made verbally, in writing, or by meansofan electronic communication device'—was'onits face and underthe circumstances in whichit [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospectof execution ofthe threat,' (4) that the threat actually caused theperson threatened'to be in sustained fear for his or her ownsafety orfor his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227- 228.) y "The crime of attempted rape has two elements: (1) the specific intent to commit the crime ofrape and (2)a direct, althoughineffectual, act toward its commission.(§ 21a; People v. Rundle (2008) 43 Cal.4th 76, 138... ; People v. Carpenter (1997) 15 Cal.4th 312, 387....) A defendant's specific intent to commit rape maybe inferred from the facts and circumstances shownbythe evidence. (People v. Guerra (2006) 37 Cal.4th 1067... .)" (People v. Clark (2011) 52 Cal.4th 856, 948.) 36 People v. Calhoun (1958) 50 Cal.2d 137, 144 ["It is settled that a conspiracy may be established by direct evidence or circumstantial evidence, or a combination of both"]; People v. Reed (1952) 38 Cal.2d 423, 431 ["Circumstantial evidence is as adequate to convict as direct evidence. [Citations.]"]; see also CALCRIM No.223; Evid. Code, §§ 140, 210, 410, 600, subd. (b); Law Revision Com. com., 29B Pt. 1A West's Ann. Evid. Code (2011 ed.) foll. § 210, p. 41.) Evidence of a defendant's statement might be direct evidence of a crime, circumstantial evidence of a crime, or both. Accordingly, we assumefor purposesofthis appeal that Carpenter did require the court to give a cautionary instruction with respect to defendant Diaz's extrajudicialoral statements and the court's failure to instruct sua sponte was error. "We apply the normal standard of review for state law error: whetherit is reasonably probable the jury would have reacheda result more favorable to defendant hadthe instruction beengiven. (People v. Stankewitz (1990) 51 Cal.3d 72, 94; People v. Beagle, supra, 6 Cal.3datp. 456.)... Mere instructional error under state law regarding how the jury should consider evidence doesnot violate the United States Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 71-75 [112 S.Ct. 475, 481-484, 116 L.Ed.2d 385].) Failure to give the cautionary instruction is not one of the' "very narrow[]" ' categories of error that make the trial fundamentally unfair. (/d. at p. 73.)" (People v. Carpenter, supra, 15 Cal.4th at p. 393.) In this case, the evidence of defendant Diaz's threatening statements made immediately following the stabbing were both direct and circumstantial evidence. The evidence of those oral statements was direct evidence that the statements were made and circumstantial evidence of Diaz's intent and state of mind. Defendantcontendsthatthe lack of a cautionary instruction "encouraged the jury to regard as credible the allegations that [she] threatened" Morales, Rosales and Pineda and this omission wasprejudicial error since the alleged victims’ testimony was the only evidence of the threats. She also 37 arguesthat the instructional error was prejudicial because her "statements were important to establishing . . . intent to kill—particularly her alleged statement that [Morales] would either die this time or another time." | Based upon the record before us, we concludethat anyerrorin failing to give a cautionary instruction with respect to the evidence of defendant's statements was harmless. The court thoroughly instructed the jury regarding the presumption of innocence, the prosecutor's burden ofproof, evaluation of witness credibility,® and reliance on circumstantial evidence.’ The jury could reasonably infer from the evidence 8 With regard to credibility, the court instructed in part: "Considerthe testimony of each witness and decide how muchofit you believe. In evaluating a witness' testimony, you may consider anything that reasonably tends to prove or disprovethe truth or accuracy ofthat testimony. Amongthe factors that you may consider are how well . . . could the witness see, hear or otherwise perceive the things about which the witness testified? [§[] How well was the witness able to remember what happened? What was the witness' behavior whiletestifying? Did the witness understand the questions and answer them directly? Was the witness' testimony influenced by a factor such asbias or prejudice, a personal relationship with someone involvedin thecase or a personalinterest in how the case is decided?" 9 Asto reliance on circumstantial evidence, the jury wasinstructed: "Before you mayrely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced the People have proved each fact essential to that conclusion beyonda reasonable doubt. [{] Also before you may rely on circumstantial evidence to prove the defendant guilty, you must be convinced the only reasonable conclusion supported by the circumstantial evidenceis that the defendant is guilty. Ifyou can draw two or more reasonable conclusions from the circumstantial evidence and one ofthose reasonable conclusions points to innocence and anotherto guilt, you must accept the one that points to innocence." The jury was also told: "An intent may be provedby circumstantial evidence. Before you mayrely on circumstantial evidence to concludethat a fact necessary to prove the defendant guilty has been proved, you must be convinced the People have proved each fact essential to that conclusion beyond a reasonable doubt. [{] Also before you mayrely on circumstantial evidence to concludethat the defendant had the required intent, you must be convinced the only reasonable conclusion supported by the circumstantial evidenceis that the defendant had the required intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one ofthose reasonable conclusions supports a finding that the defendantdid have a required intent and the other reasonable conclusion supports a 38 that Diaz orchestrated the attack upon Morales. Pineda heard Diaz tell Morales as he was being dragged outside by the hair, "I'm going to kill you son of a bitch." A different witness heard Diaz angrily yell that "she wasn't garbage that she couldbeleft so easily." Morales, Rosales and Pineda each heard Diaz tell Morales somethingto the effect that if he did not die, he woulddie the next time. Rosales told an officer essentiallythe same thing a few days after the incident. The evidence wasconsistent that Diaz was speaking threateningly after the stabbing even though each person present apparently did not hear or recall at trial everything Diaz said. Defendant Diaz failed to establish that any threatening statements that she madeafter the stabbing would necessarily have been capturedin the recording ofthe 911 call. Consequently, their absence from the recording has little, if any, probative value with respect to whether the threats were actually made. There is no reasonable probability that the jury would have reached a result more favorable to defendant had the cautionary instruction been given. C. Booking Fee At the time of sentencing, the court orally imposed a $129.75 booking fee payable to the City of San Jose pursuant to Government Code section 29550 et seq., which governs recovery of criminal justice administration fees (CJAF) from convicted criminal defendants. Government Codesection 29550, subdivision (c), generally entitles a county, whoseofficer or agent arrested a person, to recover a criminaljustice administration (CJA) fee for administrative costs it incurred in conjunction with the person's arrest if the person is convicted of any criminal offense related to the arrest. Ifa criminal defendant wasarrested by a city employee and broughtto the county jail for booking or detention, a county may impose a fee upon the city for "reimbursement of county expenses incurred with respect to the booking or other processing" of the arrestee finding that the defendant did not; you must concludethat the required intent was not proved by the circumstantial evidence." 39 up to "one-half" of the "actual administrative costs" (Gov. Code, § 29550, subd. (a)) as statutorily defined'° (Gov. Code, § 29550, subd. (e)). Government Codesection 29550.1 entitles a city, whose officer or agent arrests a person, "to recover any criminal justice administration fee imposed by a county from the arrested person if the personis convicted of any criminaloffenserelated to the arrest."'! Unlike some other CJAF provisions, Government Codesection 29550.1 contains no "ability to pay" requirement.” In this case, the court ordered defendant Diaz to pay a $129.75 bookingfee to the city. It then immediately stated: "She has no ability to pay from looking at her statement of assets form, the court security fee or criminal conviction assessment fees. Those won't be ordered nor will attorney fees." ‘0 The language limiting the amountofthe fee charged by a county specifically states: "For the 2005 -06 fiscal year and eachfiscal year thereafter, the fee imposed by a county pursuantto this subdivision shall not exceed one-half of the actual administrative costs . . . incurred in booking or otherwise processing arrested persons." (Gov. Code, § 29550, subd. (a)(1):) q Subdivision (b) of Government Codesection 29550 sets forth a number of exemptions from the fee chargeable by a county pursuant to subdivision (a) butstates: "The exemption of a local agency from the paymentof a fee pursuant to this subdivision does not exempt the person arrested from the paymentof fees for booking or other processing." 0 Government Codesection 29550, subdivision (d), provides in pertinent part: "When the court has been notified in a mannerspecified by the court that a criminal justice administration fee is due the agency: . . . (2) The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administration fee, including applicable overheadcosts." (Italics added.) Government Code section 29550.2, subdivision (a), provides in pertinent part: "Any person booked into a county jail pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1 is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and bookingifthe person is convicted of any criminal offenserelating to the arrest and booking. . . . Jftheperson hasthe ability to pay, a jadgment of conviction shall contain an order for payment of the amountofthe criminal justice administration fee by the convicted person... ." 40 Defendant Diaz maintains that "an ability to pay" requirement must be read into Government Codesection 29550.1, as a matter of both statutory interpretation and equal protection of the laws. She asserts that the booking fee imposed upon her must be stricken because the appellate record lacks evidence ofherability to pay and ofthe actual cost of booking. The People argue that defendant's contentions on appeal were forfeited by failing to object in thetrial court. The People present no argument regarding the merits of defendant's statutory construction, equal protection, or the sufficiency of the evidence claims. While there is authority holding that the forfeiture rule applies to appellate challenges to the imposition of a booking fee (People v. Hodges (1999) 70 Cal.App.4th 1348, 1352, 1357 [defendant sought to challenge a $156 booking fee imposed pursuantto Government Codesection 29550.2]), this court held in People v. Pacheco (2010) 187 Cal.App.4th 1392 that the forfeiture rule does not apply to insufficiency of the evidence claims raised against the imposition of a $259.50 CJA fee payable to county that was imposed pursuant to Government Code section 29550 or 29550.2. (Ud. at p. 1397, see id. at p. 1399, fn. 6.)'> Defendant Diaz couches her arguments in termsofevidentiary sufficiency and primarily relies upon the Pacheco decision. This case is distinguishable from Pachecoin that a different code section, Government Code section 29550.1, is at issue here. As defendant Diaz recognizes,this 8 A CJAF case involving application of the forfeiture rule is now pending before the California Supreme Court. (See People v. McCullough (2011) 193 Cal.App.4th 864, review granted June 29, 2011, $192513.) The Supreme Court has described the issue presented in that case as follows: "Did defendant forfeit his claim that he was unable to pay the $270.17 jail booking fee (Gov. Code, § 29550.2) imposed by the trial court at sentencing, because he failed to object at the time?" ([as of March 27, 2012].) 41 section "says nothing about the arrestee's ability to pay." Further, no issue of equal protection was before the court in Pacheco. Defendantis in reality raising multiple arguments, each of which must be separately analyzed with regard to applicationofthe forfeiture rule. Her insufficiency of the evidenceclaim asto her "ability to pay" is entirely dependent uponthis court first reaching, and then resolving in herfavor, either her statutory construction or equal protection contention. We find both contentions were forfeited. ""No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any othersort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determineit.’ Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944)." (U.S. v. Olano (1993) 507 U.S. 725, 731 [113 S.Ct. 1770].) "The forfeiture doctrine is a 'well-established proceduralprinciple that, with certain exceptions, an appellate court will not consider claimsoferror that could have been—but were not— raisedin the trial court. [Citation.]' [Citations.] Strong policy reasons support this rule: ‘It is both unfair and inefficient to permit a claim oferror on appealthat, if timely brought to the attention of thetrial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule wereto obtain, the party would in most cases be careful to be silent as to his objections until it would betoo late to obviate them, and the result would be that few judgments would stand the test of an appeal."'" [Citation.]' [Citation.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Equal protection contentions,like other claimsoferror, may belost by failing to raise and develop them in the trial court below. (See e.g. People v. Fuiava (2012) 53 Cal.4th 622, 731; People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14.) 42 Courts have the discretion to not apply the forfeiture doctrine but that discretion "should be exercised rarely and only in cases presenting an importantlegalissue. [Citations.]" (Un re S.B. (2004) 32 Cal.4th 1287, 1293.) "The appellate courts typically have engagedin discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right. [Citations.]" (dn re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) While an appellate court may review a forfeited claim, "[w]hether or not it should do so is entrusted to its discretion. [Citation.]" (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Wedecline to consider defendant's statutory construction argument, findingthat, in addition to not beingraised below,it has been inadequately raised on appealsince defendantcites no supporting authority and provides no meaningful argument. (See People v. Catlin (2001) 26 Cal.4th 81, 133 [refusing to reach appellate claim where appellant "fail[ed] to offer any authority or argument in support of this claim"); Peoplev. Barnett (1998) 17 Cal.4th 1044, 1182 [refusing to reach appellate claim because it was "not properly raised" in that appellant failed to support it "with adequate argument"].) Wealso decline to review defendant's equal protection contention. Defendant's equal protection argumentis perfunctory. Whererational basis review applies to a state statute challenged on equal protection grounds,"[it] is presumed constitutional [citation],the state's Legislature is not required to articulate a purpose or rationale supporting the statute's classification, the state "has no obligation to produce evidence to sustain the rationality of a statutory classification," and "‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,’ [citation], whether or not the basis has a foundation in the record." (Heller v. Doe by Doe (1993) 509 U.S. 312, 320-321 [113 S.Ct. 2637].) Here, defendant baldly states that "there is no rational reason to limit the scope ofan ability to pay 43 provision based merely on the identity of the arresting agency" without sufficient analysis or discussion. As to defendant's separate claim that the evidence of the actual cost ofbooking wasinsufficient to support the imposition of a booking fee, she maintains thatthis contention is not subjectto forfeiture, again citing Pacheco, supra, 187 Cal.App.4th 1392. As a general rule, no objection is necessary to preserve insufficiency of the evidence claims. (See People v. Butler (2003) 31 Cal.4th 1119, 1126 [no forfeiture of challenge to the sufficiency of the evidence to support finding ofprobable cause pursuant to section 1202.1, subdivision (e)(6), with regard to an AIDStesting order], quoting Tahoe National Bankv. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 ["Generally, points not urged in thetrial court cannotbe raised on appeal. [Citation.] The contention that a judgmentis not supported by substantial evidence, however, is an obvious exception to the rule"]; People v. Rodriguez (1998) 17 Cal.4th 253, 262 [no waiver of rightto challenge the sufficiency ofthe evidence to support strike allegation].) Atthe time of sentencing in this case, however, former subdivision (a)(2) of Government Codesection 29550 stated: "Any increase in a fee charged pursuantto this section [for booking and processing arrested persons] shall be adopted by a county prior to the beginningofits fiscal year and may be adopted only after the county has provided eachcity [and other specified entities] 45 days written notice of a public meeting held pursuant to Section 54952.2 on the fee increase and the county has conductedthe public meeting." (Stats. 2006, dn. 78, § 2, p. 1548.) This CJAFprovision suggested that the "actual administrative costs" of receiving a person arrested by an employeeofa city and brought to the county jail for booking were formally established by a county in extrajudicial procedures and did not necessarily require proof each time a CJA or 44 booking fee payable to a city was imposed upon a defendant pursuant to Government Code section 29550.1." In this case, the preprinted, standard criminal minute order of the County of Santa Clara, Superior Court provided for imposition of a CJA fee: "CJAF $129.75/259.50 $_" Here, the probation officer's report recommendedthat a CJA fee of $129.75 payableto the City of San Jose be imposed. The reasonable inferenceis that, at the time ofjudgment, the County of Santa Clara hadset the CJA fee at $259.50,it had set the fee chargeable under Government Code section 29550, subdivision (a), at half that amount ($129.75) for booking or processing a person arrested by an employee of a city (or other specified entity), and the City of San Jose whoseofficer or agent had arrested a defendant wasentitled to recover $129.75 from the defendant upon conviction of any criminal offenserelated to the arrest. (See Gov. Code, §§ 29550, subds. (a) and (b), 29550.1; see also Santa Clara County Ordinance Code, Div. A14, Ch. X, Sec. A14-56 [establishment of CJA fees].) Underthese circumstances, if defendant Diaz wished to challenge the amountof the booking fee payable to the City of San Jose, it was incumbent uponher to object that the CJA fee recommendedin the probation report and CJA fees stated in the preprinted, standard criminal minute order did not correctly reflect the amount of the CJA or booking fee that had been established by the County of Santa Clara and provide some evidentiary support for her claim. "'A judgmentor order of the lower court is presumedcorrect. All intendments and presumptions are indulged to support it on matters as to which the 4 Wedonot consider in this case whether there must be evidence of the "actual administrative costs" when a court imposes a CJA fee payable to a county. We are aware that Pachecostated: "There is no evidencein this record of either Pacheco's ability to pay a booking fee, particularly as a condition of probation, or of the actual administrative costs of his booking. Accordingly, the $259.50 criminal justice administration or booking fee cannot stand." (Pacheco, supra, 187 Cal.App.4th at p. 1400.) 45 recordis silent, and error mustbe affirmatively shown. Thisis not only a general principle of appellate practice but an ingredientofthe constitutional doctrine of reversible error.’ [Citations.]" (Denham y. Superior Court (1970) 2 Cal.3d 557, 564.) The record _contains no evidence that the amountofthe standardized booking fee recoverable bythe City of San Jose was not $129.75. DISPOSITION The judgmentis affirmed. ELIA,J. WE CONCUR: . RUSHING,P.J. PREMO,J. 46 Exhibit B Publication Order (Omitted from Service Copies) COPY IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, v. DORA DIAZ, Defendant and Appellant. THE COURT: H036414 (Santa Clara County Super. Ct. No. CC954415) Court of Appeal - Sixth App. Dist i : fa Ryman72. e AUG i 6 2012 MICHAEL J. YERLY, Clerk DEPUTY Pursuant to California Rules of Court, rules 8.1105 and 8.1110(a), the above captioned opinion which wasfiled on August 1, 2012,is certified for publication with the exception ofParts II.A, I.B.1, 0.B.2, I[.B.3 and ILC. ELIA,J. RUSHING,P.J. * PREMO,J.