PEOPLE v. ELIZALDE

Appellant, Gamaliel Elizalde, Petition for Review

Cal.January 22, 2014

5215260 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE, No. 8215260 Plaintiff and Respondent, Court of Appeal SUPREME COURT No. A132071 F [ j E Dp) JAN 22 2014 v. GAMALIEL ELIZALDE,et al., Defendants and Appellants. Frank A. McGuire Clark Deputy Contra Costa County Superior Court, Case No. 050809038 Honorable John Kennedy, Judge Presiding Ww GAMALIEL ELIZALDE’S PETITION FOR REVIEW SOLOMON WOLLACK(State Bar # 170003) Attorney at Law P.O. Box 23316 Pleasant Hill, CA 94523 (925) 671-2501 E-mail: sol@wollack.com Attorney for Appellant Gamaliel Elizalde By Appointment of the Court of Appeal UndertheFirst District Appellate Project Independent Case System TABLE OF CONTENTS TABLE OF AUTHORITIES ........... 00.00. eee eee eee ees iv GAMALIEL ELIZALDE’S PETITION FOR REVIEW .............. 1 ISSUES PRESENTED FOR REVIEW ........... 0.00000 eee eee eee 2 FACTUAL AND PROCEDURAL BACKGROUND ................. 3 REASONS FOR GRANTING REVIEW ......... 00.000 e eee eee ee 4 LEGAL DISCUSSION ...... 0.0... cece ce cee tence eee 6 I, Elizalde’s Murder and Conspiracy Convictions Violate the Fourteenth Amendment’s Due Process Clause Because There Was Legally Insufficient Evidence to Support Them ........ 0.0... eee eee eee eee ene 6 A. The four informant witnesses were accomplices as a matter of law, whose testimony was not corroborated ...... 6 1. Jorge Sanchez ........... 0. eee cee ee eee 7 2. Luis Ruelas ....... 0.eceee 7 3. Oscar Menendez ......... 0... eee eee eee 8 4. Victor Cervantes ..... 0.0... ceeee ee 9 IJ. Elizalde’s Convictions on the Three Murder Counts Violate the Fourteenth Amendment’s Due Process Clause, Since There Was No Substantial Evidence to Show That The Killings Were in Furtherance of the Conspiracy or a Reasonably Foreseeable Consequence Thereof...c ee eee eee eee neee 10 A. The criminal agreement shownbythe evidence did not encompassshootingsoutsidethe city limits of Richmond ....... 0... ccc eee eee ents 10 B. None of the San Pablo shootings was a reasonably foreseeable consequenceofthe conspiracy to “take back the hood” ...........--.-005 bebe eee eee es 12 II. The Trial Court Violated the Fourteenth Amendment’s Due Process Clause by Permitting the Prosecutor to Introduce a Series of Recorded Telephone Conversations Between Hector Molina and His Mother, Made after Molina Had Already Been Arrested ..........-. 0s eee eee 14 A. Background ..... Lee ee cee eee eee eee tees 15 1. The three telephone calls .............-.2 00-2 e ee 15 2. Trial proceedings ......... 0... 0c eee eee eee ee 16 B. The Molina telephonecalls did not come within the coconspirator exception because Molina was no longerparticipating in a conspiracy at that time and his statements did nothing to further the conspiracy’s Objectives 2... erceeeee eee ee 16 C. The erroneous admission of the Hector Molina telephone calls was prejudicial ...........--... 00005 19 IV. Defense Counsel Provided Ineffective Assistance, in Violation of the Sixth Amendment, by Failing to Redact the Molina Telephone Calls to Exclude Double Hearsay from Molina’s Mother ..........-. 0-0 eee eee eee eee 23 V. The Trial Court Misinstructed on Accomplice Corroboration by Implying That an Accomplice Statement May Supply the Corroboration So Longasthe Statement Does Not Constitute Testimony ............+---- 25 “ji- VI. The Trial Court Violated the Fourteenth Amendment’s Due Process Clause by Allowing the Prosecutor to Bring in Elizalde’s 2007 Drug Arrest .......... 020.0000 ee eee eee 28 A. Background .......... 0.00 c eceee teens 28 B. Thetrial court abusedits discretion, and violated due process, by allowing the prosecutor to bring in Elizalde’s 2007 drug case, when such evidence was cumulative and easily subject to misuse ................ 29 VII. The Trial Court Violated Elizalde’s Due Process Rights, and His Sixth AmendmentRightto the Effective Assistance of Counsel, by Instructing the Jury Thatit Could Use His 2007 Drug Arrest as Substantive Evidence of the Conspiracy .......... 0... cece cece eee 33 A. Thetrial court violated the Fourteenth Amendment’s due process clause by instructing the jury that it could use Elizalde’s 2007 drug arrest as evidence ofhis participation in a conspiracy ..... 0.0.0.0. 32 B. Thetrial court’s misinstruction deprived Elizalde of his Sixth Amendmentright to the effective assistance of counsel and, therefore, requires reversal perse ........ 34 VIII. Defense Counsel Provided Ineffective Assistance, in Violation of the Sixth Amendment, by Failing to Object to Irrelevant and Prejudicial “Other Crimes” Evidence ....... 36 IX. The Cumulative Effect of the Errors Was Prejudicial and Requires Reversal ..... 00.0... ccc cee eee 40 X. Elizalde Joins in the Arguments of Co-appellants Javier Gomez and Jose Mota-Avendano ............ 0.0000 e eee 40 CONCLUSION ....... 0.0 ceeeeeeet eens 41 WORD COUNT CERTIFICATE ...... 00.0.0 cece cee eee eee 42 ~iii- TABLE OF AUTHORITIES FEDERAL CASES Brooks v. Tennessee (1972) 406 U.S. 605 20.cette ee ene e eens 34 Brown v. United States (1968) 391 U.S. 123occeeene e ene ene 32 Chapmanv. California (1967) 386 US. 18 2.eeneee renee eee 19, 40 Crane v. Kentucky (1986) A76 US. 683 0.cette eee e teen ene aes 27 Estelle v. McGuire (1991) 502 U.S.6200teeneee eens 29, 32 Francis v. Franklin (1985) A471 U.S. 307 06eeeee en eee eens 35-36 Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270 0.0cecteet nee ees 27 Geders v. United States (1976) 425 U.S. 80octeen nee eee eee eee 34 Herring v. New York (1975) 422 U.S. 853 oneee en eee nee 34 Hicks v. Oklahoma (1980) AAT US. 343 ooccent nen eee eee e eens 17 Jackson v. Virginia (1979) 443 U.S.307 20.eeeteen eee neee 6, 9-10 Lisenba v. California (1941) 314 US. 219ooeeeee eee renee eee 32 -IV- Musladin v. Lamarque (9th Cir. 2009) 555 F.3d 830 2...teee eee eee e eens 39 Parle v. Runnels (9th Cir. 2007) 505 F.3d 922 .eeeee ete ene teens 40 Payton v. Woodford (9th Cir. 2003) 246 F.3d 1204oeeeeeee teens 27 Perry v. Leeke (1989) 488 US.272 0.cccee eee ene n enna 36 Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 0...eeeee een ene nees 36 Strickland v. Washington (1984) 466 US. 668 000eeetee ene 23, 34 United States v. Layton (9th Cir. 1983) 720 F.2d 5480cceee ene teen eens 18 _ United States v. Lemay (9th Cir. 2001) 260 F.3d 1018 00.ceeee eee cent eee 29-30 Whorton v. Bockting (2007) 549 U.S. 406 2.0teeee teen eee 17 CALIFORNIA CASES In re Hardy (2007) AL Cal.4th 977 oocceee tenes 16 People v. Andrews (1989) AO Cal.3d 200 0.0... ceceeeeee eens 25-26 People v. Leon (2008) 161 Cal.App.4th 149 20...eeteens 30 People v. Luker (1965) 63 Cal.2d 464ooeeene teeter eens 4 People v. Morante (1999) 20 Cal.4th 403 2...ceeenent eens 12 _ People v. Noguera (1992) 4 Cal.4th 599 oooeeeee ee eee eee nes 4 People v. Pic’] (1981) 114 Cal.App.3d 824 1.2... cccete ee eee 4,17 People v. Roberts (2011) 195 Cal.App.4th 1106 2.0.0... eeeeeeeee 24 People v. Saling (1972) 7 Cal.3d 844 oooeeeee n renee tes 4 People v. Stritzinger (1983) 34 Cal.3d 505 00.eeete ete 40 People v. Tran (2011) 51 Cal.4th 1040 . 2...eee30 People v. Waidla (2000) 22 Cal.4th 690 20.ceeee eens 16 People v. Woods (1992) 8 Cal.App.4th 1570 2.00.eeeens 12 STATUTES Evidence Code Section 1101, subd. (a)... . 0...neeee 37 Section 1220 .... 2.eeee eee eet ene 15 Section 1223.0... cceeeee eee eee 2, 4, 16, 18 -VI- Section 1240 . 0.0...eeee ee eee eee ee ee ee eee 24 Penal Code Section 182.5 2.0... cece ccc eee eee eee tne eee 28-30 Section 186.22, subd. (b) ........ 0... eee ee ee eee 29-30 Section 186.22, subd. (€) 2... 0... cece eee eee eee nee 30 Section 186.22, subd. (e)(4) 2.0...eceee ee eens 29 Section 186.22, subd. (f) 0... eee ee ee ee ee eee 30 Section LIL] 2...cccece eee eens 11,25 CONSTITUTIONS United States Constitution Sixth Amendment .................... 17, 23, 25-27, 32, 34, 36, 39 Fourteenth Amendment ........ 2-3, 6, 9-10, 14, 17, 19, 26-28, 32-33 OTHER AUTHORITIES California Rules of Court Rule 8.200(a)(5) 2... 0c ccceeee teen nee 40 Rule 8.504(d)(1) 0.0... eeeccccence 42 CALJIC Instructions No. 3.13 2...ceeee ete t eee eee 4-5, 25-27 -Vil- IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE, ] ] No. 8215260 Plaintiff and Respondent, ] ] Court of Appeal v. ] No. A132071 | GAMALIEL ELIZALDE,etal., ] (Contra Costa County ] Super. Ct. No. Defendants and Appellants. ] 050809038 J J GAMALIEL ELIZALDE’S PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE OF THE STATE OF CALIFORNIA, ANDTOTHEHONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT: Appellant Gamaliel Elizalde hereby petitions this Honorable Court to review the decision of the Court ofAppeal, First Appellate District, Division Two,filed in that Court on November 19, 2013, and modified and ordered partially published on December 19, 2013. Attached as Exhibits A, B, and C respectively are copies ofthe Court ofAppeal’s Opinion, its subsequent order modifying the Opinion and denying Elizalde’s petition for rehearing, andits order for partial publication. ISSUES PRESENTED FOR REVIEW I. Did Elizalde’s murder and conspiracy convictions violate the Fourteenth Amendmentdueprocess requirementoflegally sufficient evidence because the case against Elizalde was founded solely on uncorroborated accomplice testimony? Il. Did Elizalde’s murder convictions violate the Fourteenth Amendment due process requirementof legally sufficient evidence because there was no substantial evidence that the shootings were in furtherance ofthe conspiracy? Ill. Does Evidence Code section 1223’s coconspirator hearsay exception apply when a gang memberdeclaranthasalready been arrested and the purpose ofhis statementis to obtain a personal benefit for himself and his family? IV. If the gang member’s post-arrest statements were admissible under Evidence Code section 1223, did defense counsel provide ineffective assistance by failing to seek redaction of those conversations to exclude the statements made by the gang member’s non-gang member mother? V. Whenthe prosecution’s case rests largely on the testimony of potential accomplices, and the prosecution introduces the non-testimonial statementofoneofthose potential accomplices, doesthe trial court have a sua sponte duty to instruct that the corroboration for an accomplice may not be supplied by the testimony or statement of another accomplice? VI. Did thetrial court violate Elizalde’s Fourteenth Amendmentdue processrights by allowing the prosecution to bring in his 2007 drug arrest? VII. Did thetrial court violate Elizalde’s Fourteenth Amendment due process rights by allowing the jury to use his 2007 drug arrest as substantive evidence of his guilt? VIII. Did defense counsel provide ineffective assistance by allowing the prosecutor to bring in irrelevant and prejudicial “other crimes” evidence? IX. _ Does the cumulative effect ofthe various errors require reversal of Elizalde’s convictions? xX. Joinder in issues raised in petitions for review of appellants Javier Gomez and Jose Mota~Avendano. FACTUAL AND PROCEDURAL BACKGROUND For the purposes of this petition for review, Elizalde adopts the proceduralhistory and facts whichare set forth in pages 3 through 19 of the Court of Appeal’s opinion. \\ REASONSFOR GRANTING REVIEW This Court should grant review to address two important issues of law. The first important issue concerns the admission ofrecordedjailhouse telephone calls made between anarrested gang member, Hector Molina, and his mother. (Issues III and IV, supra.) The Court of Appeal held that these calls were properly admitted under Evidence Code section 1223’s coconspiratorhearsay rule. In this regard, the Court found that the conspiracy wasstill ongoing even after Molina’s arrest, since Surefio gang membersare still required to follow the rules of the gang even in custodial settings. (Opinion, pp. 64-65; 28 RT 4983-4988.) As a general rule, the coconspirator hearsay exception does not apply to statements which occur after the coconspirator’s arrest. (People v. Pic’l (1981) 114 Cal.App.3d 824, 886; People v. Luker (1965) 63 Cal.2d 464,476.) This Court has recognized that there may be exceptionsto this rule. (People v. Saling (1972) 7 Cal.3d 844, 852; People v. Noguera (1992) 4 Cal.4th 599, 625-626.) However, no court has ever approved a gang exception, whichis essentially what the Court of Appeal adopted here. This Court should grant review to determine if such an exception exists. This Court should also grant review to address an important issue about CALJIC No. 3.13’s instruction on corroboration of accomplice testimony. (Issue V, supra.) Thatinstruction states that the required corroboration “may not be supplied by the testimony ofany orall of his accomplices.” (14 CT 3657, emphasis added.) In this case, however, a key piece of potentially corroborating evidence was a MySpacepost from Luis Ruelas, whom thejury could potentially have found to be an accomplice. (See 34 RT 6094 [jury must determine if Ruelas is accomplice].) Because that statement was not “testimony,”thejury could have used it as corroboration — even though it came from an accomplice and suffered from the exact samereliability problems as accomplice testimony. This Court should grant review to determine ifCALJIC No.3.13 errs by failing to clarify thatit is not only accomplice testimony, but also non-testimonial accomplice statements, which may not supply the corroboration for accomplice testimony. Finally, for exhaustion purposesonly, Elizalde seeks review sothat this Court can address Issues I through II, and VI through X,as set forth in the “Issues Presented for Review” section above. \\ \\ \\ \\ \\ LEGAL DISCUSSION I. Elizalde’s Murder and Conspiracy Convictions Violate the Fourteenth Amendment’s Due Process Clause Because There Was Legally Insufficient Evidence to Support Them. Whena jury convicts a defendant “even whenit can be said that no rational trier of fact could find guilt beyond a reasonable doubt,” the verdict offends the Fourteenth Amendment’s due process clause and requiresreversal. (Jackson v. Virginia (1979) 443 U.S. 307, 316-317.) Count two of the indictment charged Elizalde with conspiracy to commit murder andassault with a deadly weapon. Counts one, four, five, and six charged him with murder — with all counts predicated on a conspiracy theory ofliability. (See 36 RT 6351.) The evidence of these counts waslegally insufficient. A. The four informant witnesses were accomplices as a matter of law, whose testimony wasnot corroborated. The evidence of Elizalde’s participation in a conspiracy camesolely from four gang membersor associates: Luis Ruelas, Jorge Sanchez, Oscar Menendez, and Victor Cervantes. All were accomplices as a matter of law. \\ \\ \\ 1. Jorge Sanchez The trial court instructed the jury that Sanchez was an accomplice as a matter of law, due to his involvement in the December 22, 2007 shooting of Antonio Centron. (34 RT 6093; see also 14 RT 2628-2638.) 2. Luis Ruelas Luis Ruelas was a full-fledged member of Varrio Frontero Locos (“VFL”) until he becamean informant on April 10, 2008. (31 RT 5491-5493.) His decision to cooperate occurred well after four of the five shootings that were originally charged in this case, and just 16 days before the last of the charged homicides. (See 5 CT 982-996.) While a member of VFL, Ruelas personally committed shootings (3 Aug. CT 657; 31 RT 5572-5573), bragged about the many Nortefios he had killed (15 RT 2785), and acquired a “Chap Killa” tattoo which he had earned for killing Nortefios. (3 Aug. CT 657-658; 15 RT 2785.) Even after he becamea paid informant, andafter the last of the charged homicides, Ruelas continued to commit violent crimes (30 RT 5264- 5266, 5270), and still considered himself “a VFLtill (sic) I die” — as he wrote in his August 27, 2008 MySpace post. (Exh. 212.) IfElizalde — and even Mota — were found criminally liable for murders which occurred when they were not even present, then Ruelas was responsible under the exact same theory: because he was a high-ranking memberofthe gang which carried out these murders. 3. Oscar Menendez Oscar Menendez admitted that he became a Surefio associate in November, 2007. (22 RT 3813-3814.) He wasstill an associate at the time of all five shootings that were originally charged in this case. (22 RT 3813- 3814.) Menendez admitted going to VFL parties and to a VFL meeting, and identified himself as a Surefio when he wenttojail. (22 RT 3814-3815, 3841- 3842, 3851-3852.) Despite Menendez’s claim that he was an innocent bystanderin the April 26, 2008 shooting ofRico McIntosh,the evidence showedthat McIntosh was shot with a gun that Menendez once owned, which Menendez used to shoot himselfjust 13 daysearlier, and which wasstill in his possession when the police searched his house a few dayslater. (21 RT 3734, 3737, 3739-3741; 22 RT 3892.) In between the McIntosh shooting and the police search, Menendez bragged about the shooting to Luis Ruelas, apparently leaving Ruelas with the impression that he was the actual triggerman. (31 RT 5499- 5501;3 Aug. CT 639.) Wereit not for Menendez’s decision to pointthe finger at others, it is inconceivable that he would not have been charged with MclIntosh’s murder. He was, thus, an accomplice as a matter of law. 4. Victor Cervantes Cervantes was a friend of Luis Ruelas and a memberof the Mexican Locos, a gang closely affiliated with VFL. (27 RT 4684, 4709, 4722-4724, 4777.) On May 5, 2007, Cervantes was charged with assault with a deadly weaponafter firing his .380 caliber gun into a house while four people stood outside. (27 RT 4779-4781.) He was arrested, and agreed to cooperate, following the January 26, 2008 shooting of Jose Mendoza-Lopez,originally charged as countfive in this case. (27 RT 4791-4792; 12 RT 2391; see also 5 CT 990.) Upon his arrest, Cervantes lied to police about his knowledge of the shooting. (27 RT 4793-4794.) Such facts made Cervantesliable for the charged conspiracy, and the shootings in furtherance ofthat conspiracy, under the very same theory upon which Mota’s liability was based. Because there was no non-accomplice evidence to corroborate Sanchez, Ruelas, Cervantes, and Menendez’s claims that Elizalde was the leader of a conspiracy to shoot rival gang members, the evidence on the conspiracy and murder counts was legally insufficient, in violation of the Fourteenth Amendment’s due process clause. (Jackson v. Virginia, supra, 443 U.S.at pp. 316-317.) \\ \\ I. Elizalde’s Convictions on the Three Murder Counts Violate the Fourteenth Amendment’s Due Process Clause, Since There Was No Substantial Evidence to Show That The Killings Were in Furtherance of the Conspiracy or a Reasonably Foreseeable Consequence Thereof. The prosecutor’s theory at trial was that, as VFL’s “shot-caller,” Elizalde wasliable for each ofthe killings carried out by the gang’s members. But this theory holds true only if those crimes were: (1) part of the criminal conduct to which Elizalde agreed; or (2) areasonably foreseeable consequence of crimes committed in furtherance of the conspiracy’s objective. (CALJIC No. 6.11.) As there was no substantial evidence to support either premise, Elizalde’s three murder convictions violate the Fourteenth Amendment’s due process clause. (Jackson v. Virginia, supra, 443 U.S. at pp. 316-317.) A. The criminal agreement shownbythe evidence did not encompass shootings outside the city limits of Richmond. If the evidence showed any conspiracy atall, it was a conspiracy to “take back the hood.” (36 RT 6398.) “Taking back the hood,” according to Victor Cervantes, entailed taking over Richmond High and “get[ting] rid” of the Nortefios. (27 RT 4729, 4767-4768.) Oscar Menendez. evinced a similar understanding — testifying that Elizalde viewed Richmond as Surefioterritory and that he “wanted to whoop some Nortenos in Richmond High.” (22 RT -10- 3827, 3829.) Elizalde instructed Menendez that, if he saw a Nortefio, he should beat him or do anythingpossible “to get him away from Richmond, and to... let them stay in San Pablo.” (22 RT 3822-3823.) Likewise, Luis Ruelas told police that Elizalde and others hopedtosell drugsin the local high schools (34 RT 6043-6044), but first needed to rid the schools of Nortefios. (29 RT 5123.) There wasnotestimony from any of these three witnesses to suggest that Elizalde’s plans for “taking back the hood”involved driving outsidecity limits and shooting rival gang members in their ownterritory. Yet, all four shootings occurred in the heavily Nortefio Broadway area of San Pablo. Ofthe informant witnesses, only Jorge Sancheztestified that Elizalde advocated venturing outside Richmond and committing shootingsor beatings in Nortefio territory. (14 RT 2692-2693.) Sanchez, however, was the one informant witness whom even the prosecutor and court agreed was an accomplice as a matter of law. (33 RT 5919; 34 RT 6093.) Hence,his testimony required corroboration connecting Elizalde to the charged crimes. (Pen. Code, § 1111.) Ruelas, Cervantes, and Menendez did not supply the corroboration, since none described a conspiracy which went beyond the territorial limits of Richmond. | \\ \\ -l1- B. None of the San Pablo shootings was a reasonably foreseeable consequenceof the conspiracy to “take back the hood.” Even if Elizalde did not actually agree to commit out-of-town shootings, he could still be held liable for those shootings if they were committed in furtherance ofthe conspiracy’s objective and were a natural and~ probable consequenceofthat objective. (People v. Morante (1999) 20 Cal.4th 403, 417.) A natural and probable consequence is one which “a reasonable person under like circumstances would recognize . . . was a reasonably foreseeable consequence”of the conspiracy’s intended conduct. (People v. Woods (1992) 8 Cal.App.4th 1570, 1587.) Here, the evidence showed that each of the three homicides was an independent product of the participants’ own minds, and not a reasonably foreseeable consequence of a conspiracy to take back the hood. The December22, 2007 shooting occurred when Molina, Sanchez, and Francisco Romero randomly decided to venture into Nortefio territory on an apparent whim oftheir own. Ironically enough, the whim arose immediately after Elizalde tried to personally arrange an apparently non-deadly street fight to settle some scores with a fellow Surefio gang called Richmond Sur Trece. (14 RT 2622-2626.) It was only when his efforts failed that Molina and Sanchez met up with Romero, and headed into San Pablo ona decidedly more violent enterprise than the one envisioned by Elizalde. -12- Furthermore, Sanchez’s testimony madeclear that Molina ~— the shooter — had his own personal agenda which had nothing to do with VFL. Sanchez testified that Molina “was kind oflike in his own world trying to bring them his own way.” (14 RT 2694.) The second shooting — on February 16, 2008 — also occurred out of a sudden inspiration, born of Molina’s own personal agenda. Before the shooting, Molina and other VFL members were drinking near 6th and Grove. (18 RT 3147-3150.) Molina and five others left in two cars — Molina driving the lead car. (18 RT 3152-3153, 3155.) Molina drove to the Broadwayarea, wherehepulled into a dead-end road: Jorge Camachothen gotout of the car and shot someone wearing red. (18 RT 3158-3162.) There was nothing in Elizalde’s “take back the hood” plan which could have foreseen this type of sudden, random foray into Nortefio territory. Finally, the Rico McIntosh shooting also occurred in San Pablo. (21 RT 3695-3696.) Like the other shootings, the evidence suggested that the McIntosh shooting came about as a result ofa spur-of-the-momentdecision by the participants - Mota, Gomez, and Menendez. Javier Gomez, the actual shooter, was not even a VFL member, but a member of Mexican Locos. (21 RT 3734-3735.) Victor Cervantes, the lone Mexican Locos member who testified at trial, stated that he never took orders from anyone in VFL. (27 RT -13- 4772.) If Cervantes took no orders from VFL,there is no reason to believe that Gomez did either — particularly given Menendez’s testimony that VFL orders were often shrouded in secrecy. (22 RT 3820.) The Court of Appeal found that all three shootings were reasonably foreseeable, since a conspiracy to shoot Nortefios would necessarily entail traveling into the Nortefio territory of San Pablo. (Opinion, p. 61.) But the evidence did not show a conspiracy to track down Nortefios and shoot them. It showed a conspiracy to “take back the hood” from Nortefios — which meant shooting Nortefios only when they came into Richmond. Because shootings outside of Richmond were neither part of the conspiracy, nor a reasonably foreseeable consequence, Elizalde’s murder convictionsviolate the Fourteenth Amendment due process requirementoflegally sufficient evidence. Wi. The Trial Court Violated the Fourteenth Amendment’s Due Process Clause by Permitting the Prosecutor to Introduce a Series of Recorded Telephone Conversations Between Hector Molina and His Mother, Made after Molina Had Already Been Arrested. The prosecutor introduced a series of recorded jail calls involving Hector Molina. (1 Aug. CT 141-190; 2 Aug. CT 522-531; see also 12 RT 2396-2397.) Those calls included one small portion in which Elizalde and Molinaactually spoke. Therest consisted ofdialogue between Molina andhis .14- mother — some ofwhichpertained to Elizalde. Elizalde acknowledges that his ownstatements were admissible against him as the statements of a party. (Evid. Code, § 1220.) However, the rest of calls constituted inadmissible hearsay. A. Background 1. The three telephonecalls In the first telephonecall, Molina asked his mother to contact Elizalde andtold her that Elizalde would give them money. (2 Aug. CT 523.) At the end ofthe conversation, Molina’s mother placed a three-waycall to Elizalde’s number. (2 Aug. CT 524-526.). Molina left a message saying that he had been arrested for murder and asking Elizalde to take care ofhis family. (2 Aug. CT 526.) The second call began with Molina’s motherreporting that she (or her daughter Carla) had spokento Elizalde andthat he said,“you should say no, no, no, I didn’t doit, it couldn’t have been me. I didn’t do anything. To keep your word, and no, no, no.” (2 Aug. CT 527.) Molina’s mother then placed a three-way call. (2 Aug. CT 527-528.) In the ensuing conversation, Elizalde offered to help Molina and his family and advised him, “whatever happened, you — yousay that you don’t know.” (2 Aug. CT 527, 529.) -15- In the last call, Molina told his mother not to call Elizalde, but added that he could help herif she needed something. (1 Aug. CT 181-182.) 2. Trial proceedings The trial court admitted the Molina telephone calls under the coconspirator hearsay rule. (28 RT 4983-4988.) During deliberations,thejury asked to have the actual tape of the Molina telephone conversations. (13 CT 3413; see 24 RT 4210.) Thetrial court instead provided the transcript, since the tapes were largely in Spanish. (13 CT 3413.) B. The Molina telephonecalls did not come within the coconspirator exception because Molina was no longer participating in a conspiracy at that time and his statements did nothing to further the conspiracy’s objectives. Under Evidence Code section 1223, an out-of-court statement is admissible against a defendant upon a prima facie showing that: (1) the declarant madethe statement while participating in a criminal conspiracy; (2) the statement was madein furtherance of the objective ofthe conspiracy; and (3) the defendant wasalso a participant in the conspiracy at the time of the statements. (/n re Hardy (2007) 41 Cal.4th 977, 995-996.) On appeal, the reviewing court applies an abuse of discretion standard to rulings on the admissibility of hearsay evidence. (People v. Waidla (2000) 22 Cal.4th 690, | 725.) -16- Because coconspirator statementsare not testimonialin nature, their use does not implicate the accused’s Sixth Amendment confrontation rights. (Whorton v. Bockting (2007) 549 U.S. 406, 420.) However, the Fourteenth Amendment’s due process clause does protect the defendant against the arbitrary violation ofa state-created rule. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) That principle applies here. As a general rule, the arrest of a coconspirator ends that person’s participation in the conspiracy. (People v. Pic’l, supra, 114 Cal.App.3dat p. 886.) Thetrial court, however, foundthis generalrule inapplicable since, even after their arrest, Surefio gang members wereto continue following the gang’s rules, including the rule against cooperating and the rule requiring them to attack rival gang members. (28 RT 4984-4985.) The Court ofAppeal upheld the trial court’s ruling, underidentical reasoning. (Opinion, pp. 64-65.) The effect of the Court of Appeal’s ruling would be to create a gang exceptionto the rule that a coconspirator’s participation ends with hisarrest. No California court has ever recognized such a “gang exception” and even the prosecutor in this case did not posit such a rule. Instead, he argued that the conspiracy ended with the last murder charged in the indictment. (20 RT 3561-3562; see also 9 CT 2649C.) But, under the Court of Appeal’s reasoning, that would not be true. As long as Molina remained a memberof -17- the gang, he would be subject to the gang’s rules. Thus, accordingto the Court of Appeal’s reasoning, his statements would remain admissible under Evidence Codesection 1223. The Court ofAppeal’s analysis confused the concept ofa gang with the concept of a conspiracy. Almost all gangs share an ethic ofattackingrival gang members andrefusing to cooperate with police. (See 31 RT 5437-5438, 5459.) That Surefio gang membersoften carry this ethic with them to prison does not meanthat their agreement to commit a specific felony also continued beyond the date of their incarceration. The conspiracy alleged here was a conspiracy to commit murder, not a conspiracy to be in a gang. Molina’s authority to speak for the charged conspiracy ended upon his incarceration. In fact, Elizalde madethis clear, telling Molina not to speak (2 Aug. CT 529) — an indicationthat he did not want Molina making statements on behalfofVFL while in custody. (14 RT 2639, 2641-2642; 27 RT 4693.) Finally, even ifMolina wasstill participating in the conspiracyafterhis arrest, his statements to his mother did nothing to advance the conspiracy’s objectives. (United States v. Layton (9th Cir. 1983) 720 F.2d 548, 556.) Rather, they served only to advance his own cause — the cause of obtaining moneyfor himself and his family. (14 RT 2678-2680.) | -18- Becausethe telephonecalls occurred after Molina’s participation in the conspiracy had ended, and his statements did nothing to further the conspiracy’s objectives, the trial court erred by admitting those calls. C. The erroneous admission of the Hector Molina telephonecalls was prejudicial. Wherethe erroneous admission of evidence implicates the Fourteenth Amendment’s due processclause, it requires reversal unless harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) Thecase against Elizalde rested almostentirely on informanttestimony. All four informants suffered from monumentalcredibility problems. Ruelas readily admitted to committing multiple shootings, and had a “Chap Killa” tattoo which he had earned for killing Nortefios. (3 Aug. CT 657-658; 15 RT 2785.) Long after he became aninformant, he wasstill bragging on MySpace about his VFL credentials andstill referring to himselfas VFL’s only “All Star Chap Killa.” (Exh. 212.) He wasalsostill committing crimes, including a “Craigslist” robbery in Redding. (30 RT 5264-5266.) Attrial, he disavowed practically everything he had previously said,in either his police statements or prior testimony. (See, e.g., 29 RT 5046-5048, 5067, 5080-5084.) Sanchez not only admitted, during his testimony, that he knowingly participated in the Antonio Centron murder (14 RT 2638); he also admitted being the triggerman in between 5 and 10 other shootings. (15 RT 2820-2823, -19- 2836-2838.) The latter admission came as a decided revelation, considering that, during the Jose Martinez trial, Sanchez flatly denied ever shooting anyone. (15 RT 2823-2825, 2836-2838.) Menendez portrayed himself as an innocent bystander, unwittingly dragged into the Rico McIntosh shooting by Mota and Gomez. Yet, aside from his own word,literally all of the evidence pointed to Menendezas the actual triggerman. It was Menendez who admitted finding the gun used to shoot McIntosh. (21 RT 3734, 3739-3740.) It was Menendez who shot himself with that same gunjust 13 daysearlier, then madeupa tall tale to the police about being robbed by two black men. (21 RT 3737; 22 RT 3886-3888; 24 RT 4221-4222, 4225-4226.) It was Menendez who possessed this same gun when the police searched his homethree full days after the McIntosh shooting. (22 RT 3892.) And it was Menendez whowasright there with the other two in bragging about the shooting — leading Ruelasto believe that he had been the actual shooter. (31 RT 5499-5501.) Finally, Victor Cervantes admitted firing two shots into a house. (27 RT 4761, 4779-4781.) Only eight monthslater, he wasarrested in connection with Jose Mendoza-Lopez’s shooting death. (27 RT 4763-4764, 4786-4788.) Besidesbeingcareer criminals,all four informant witnesseshad a great deal to gain through their cooperation. Ruelas, Sanchez, and Cervantes -20- received $37,931.95, $16,252, and $29,437.33, respectively, while in witness protection. (Exhs. F, LL, NN.) At the time they agreed to cooperate,all four witnesses understood they were facing possible life terms. (15 RT 2799; 22 RT 3909; 27 RT 4783-4784; 29 RT 5113-5114.) All four eventually received astonishingly lenient sentences. - Sanchez and Menendez both pled guilty to charges of accessory after the fact and both received probationary sentences. (14 RT 2610; 21 RT 3726; 22 RT 3952-3954, 3983.) Ruelas was out of custody, and in witness protection, between July, 2008 and May, 2010, despite his arrest on a burglary warrant and despite admitting to Officer Brady that he had personally committed many shootings. (31 RT 5491-5492, 5572-5573; Exh. NN.) Cervantes’s case for shooting into a residence wasstill open at the timeoftrial — though he had already been promised a six-year suspendedsentence. (27 RT 4683, 4759-4760.) It is worth noting, too, that Ruelas’s testimony changedradically once he no longer had anything to gain from it. When he believed he wasfacing a life sentence, and was being paid nearly $38,000 through witness protection, Ruelas piled on detail upon detail about the crimes that Elizalde had ordered. Once he wasout of witness protection, and believed he could no longertrust -21- the prosecutor to help him, Ruelas recanted virtually everything he had ever said. (See, e.g., 29 RT 5141, 5148-5149; 30 RT 5176-5178, 5205-5206.) |Finally, the informant witnesses also had considerable opportunity to discuss the case with each other andgettheir stories lined up. Menendez and Sanchez spent 6 weeks, and 23 hours per day, locked up together after both had been arrested. (22 RT 4019.) Ruelas and Cervantes were best friends. (27 RT 4777.) In a case whereall of the evidence against Elizalde came from four sociopaths permitted to walk free on their own serious charges, a juror could easily have been left with a reasonable doubt about whether to convict someone who was nowhereto be seen when any ofthe charged homicides took place. The Molina telephone calls were the signature piece of corroborating evidence — as shownbythe prosecutor’s extensive reliance on them during his closing argument (36 RT 6402-6403, 6451-6461), and the jury’s request to hear those calls during deliberations. (13 CT 3413.) Because the admission ofthe Molina telephone conversations was not harmless beyond a reasonable doubt, this Court must reverse Elizalde’s convictions on all counts. \\ \\ -22- IV. Defense Counsel Provided Ineffective Assistance, in Violation of the Sixth Amendment, by Failing to Redact the Molina Telephone Calls to Exclude Double Hearsay from Molina’s Mother. Evenif the coconspirator exception applied to Molina’s statements,it did not apply to the statements of his mother, at the beginning of the second call, in which she reported that Elizalde had told Molina to keep his mouth shut and deny any wrongdoing. (2 Aug. CT 527.) Those statements were hearsay, since Molina’s mother wasnot part of any conspiracy. Indeed, the statements werelikely double hearsay, since the record suggests that Molina’s mother was relating a conversation between Elizalde and Molina’s sister, Carla. (2 Aug. CT 522, 527.) At the same time, these hearsay statements substantially bolstered the prosecutor’s argument that Elizalde was VFL’s “shot caller.” By failing to seek redaction, defense counsel provided ineffective assistance in violation of the Sixth Amendment. (Strickland v. Washington (1984) 466 U.S. 668, 688.) Having objected to the Molina telephone calls, there could be no plausible tactical reason for failing to eliminate a very damaging part ofthose calls from a speaker whoobviously wasnot a conspirator. (20 RT 3559-3561; 23 RT 4130-4132.) When an attorney objects to evidence on one ground,it demonstrates his lack of tactical motive for failing to raise a meritorious -23- objection on another ground. (People v. Roberts (2011) 195 Cal.App.4th 1106, 1131.) In its December 19, 2013 order modifying its decision, the Court of Appealfound that the statements of Molina’s mother were admissible as an excited utterance under Evidence Code section 1240. (Exh. B, p. 2.) Under section 1240, an out-of-court statement is admissible over a hearsay objection whenit: (1) narrates or describes an act recently perceived by the declarant; and (2) was made during a time when the declarant wasstill under the stress or excitement of the act or event. Molina’s mother was not describing any act or event. She wasrelating the contents of a conversation — and a fairly mundane oneat that. Thatis quintessential hearsay. Moreover, there is nothing in the recordto indicate when that conversation even occurred or whether it was the mother or her daughter, Carla, who actually spoke to Elizalde. The evidence suggests that it was actually Carla since, during the first telephone call, Molina and his mother discussed what Carla would tell Elizalde. (1 Aug. CT 145-146.) Under such circumstances, it is pure speculation to say that Molina’s mother wasstill under the stress or excitement of the recent conversation at the time she spoke to Molina. 24. Byfailing to seek redaction ofthe mother’s statements, defense counsel provided ineffective assistance in violation of the Sixth Amendment. The error was prejudicial for the reasons discussed in section (III)(C), supra, pp. 19-22, which need notbe repeated. Vv. The Trial Court Misinstructed on Accomplice Corroboration by Implying That an Accomplice Statement May Supply the Corroboration So Long as the Statement Does Not Constitute Testimony. During closing argument, the prosecutor repeatedly cited Luis Ruelas’s MySpacepostas a key piece of corroboration for the informants’ testimony. (36 RT 6402-6404, 6464-6467; 37 RT 6558-6559; see Exh. 212.) Thetrial court gave CALJIC No. 3.13, which states that corroboration of an accomplice’s testimony “may not be supplied by the testimony” of another accomplice. (14 CT 3657; 34 RT 6093.) The instruction, however, did not say anything about non-testimonial accomplice statements. It, thus, implied that, so long as the statement did not amount to testimony, it could be used to corroborate the accomplice testimonyattrial. That is not the law. Thepolicy behind Penal Code section 1111’s corroboration requirement is “to prevent convictions based solely on evidence provided by such inherently untrustworthy sources as accomplices.” (People v. Andrews (1989) 49 Cal.3d 200, 214.) Because of this policy, this Court has held the -25- corroboration requirement applicable to not only an accomplice’s in-court testimony, but also to his out-of-court statements when made under“suspect circumstances,” and offered as substantive proof of guilt. (/bid.) Ruelas’s MySpacepost came undersuspect circumstances. The overall tone ofthe post was one of anger: angerat Elizalde and “Stranger” because he believed they had shot up his house; anger that other “homies” had implicated him, exposing him to a possible life sentence; and angerthat he had not received his just due for his past “gang-banging”activities. (Exh. 212.) The MySpace post also came some four months after Ruelas began cooperating (31 RT 5491-5492); his apparent purposein posting was tojustify, to his fellow gang members,his decision to becomea snitch. In fact, the very first wordsofhis post were, “Mayn checkdis shit out befo u go and call mea snitch ...” (Exh. 212.) Given the self-serving motives which prompted Ruelas’s posting, the circumstances surrounding the post were every bit as suspect as those surroundinghis various testimonial statements. By allowing an accomplice’s own unreliable out-of-court statement to corroborate his in-court testimony, CALJIC No. 3.13 also implicates the accused’s Sixth and Fourteenth Amendment rights. The accomplice corroboration rule exists for a reason: our Legislature has determined that accomplices are untrustworthy. Yet CALJIC No.3.13 permits the prosecutor (726- to take a non-testimonial statement of that very same untrustworthy witness and use it as the sole corroboration for his in-court testimony. Moreover, the instruction permits such a result without even requiring the jury to undertake its own independent assessmentofthe statement’s reliability or whether it was made under suspect circumstances. Such an outcome violates the accused’s Sixth and Fourteenth Amendmentright to present a defense by impairing his ability to undercut the prosecution’s evidence. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691; see also Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270, 1273, overruled on other grounds in Payton v. Woodford (9th Cir. 2003) 246 F.3d 1204, 1218, fn. 18.) The Court ofAppeal found that CALJIC No.3.13’s language was broad enough to encompass the MySpace post. (Opinion, p. 66.) To the contrary, the instruction’s languageplainly encompasses only accomplice “testimony.” It says nothing about non-testimonial statements. It, therefore, erroneously conveys the impression that such statements are perfectly acceptable corroboration. Elizalde’s previous prejudice arguments, made in connection with the Hector Molina telephone calls, are equally applicable here. (See section CID(C), supra, pp. 19-22.) In addition, the prosecutor not only relied on the Ruelas MySpace post as corroboration, but even cited it as it as an especially -27- reliable piece of evidence since Ruelas wrote the statement when he believed no law enforcementofficers were looking. (36 RT 6402-6403.) The jury also asked the court “to see Ruelas’s MySpacerant” during deliberations. (13 CT 3403.) A proper instruction would have told the jury that an accomplice statement — at least an unreliable one — cannot supply the corroboration for accomplice testimony. Without this instruction, the jury had no way to know this and, hence, no way to knowthatit could not use the post as corroboration. Accordingly, the instructionalerror requires reversal ofElizalde’s convictions. VI. The Trial Court Violated the Fourteenth Amendment’s Due Process Clause by Allowing the Prosecutor to Bring in Elizalde’s 2007 Drug Arrest. A. Background! On July 18, 2007, a search ofElizalde’s hometurnedupindicia ofdrug sales and 2.4 grams ofmethamphetaminein trail leadingto the toilet. (27 RT 4811, 4815-4819, 4822-4824, 4828.) Elizalde was arrested on suspicion of possessing methamphetaminefor sale. He was ultimately convicted ofonly possession. (31 RT 5547-5548.) Possession ofnarcotics for sale is a predicate offense for both the substantive gang crime set forth in Penal Code section ' The facts set forth in this “Background”section are relevant for both this argument andthe oneset forth in section VII, infra. -28- 182.5 and the gang enhancementset forth in section 186.22, subdivision (b). (See Pen. Code, § 186.22, subd. (e)(4).) Straight possession is not. Thetrial court admitted the facts underlying the 2007 drug incident, but only to prove the predicate crime requirement ofthe gang statute. (8 RT 1412- 1413.) Immediately after the evidence camein attrial, the court instructed the jury that the 2007 arrest was: admissible only as to... Count 3 of the Indictment and to the enhancements alleging that various crimes were committed for the benefit of the — of a criminal street gang. They are not admissible to suggest that Mr. Elizalde... has a bad character or propensity to commit crimes, but only on the predicate act elements ofthe gang charge and the gang enhancements. (27 RT 4851-48572.) During instructions to the jury, however,the trial court reversed course and allowed the jury to use the defendants’ uncharged crimes as evidence of intent, motive, or a “larger continuing plan, scheme or conspiracy.” (14 CT 3652; 34 RT 6082-6083.) B. The trial court abused its discretion, and violated due process, by allowing the prosecutorto bring in Elizalde’s 2007 drug case, when such evidence was cumulative and easily subject to misuse. The improper admission of evidence offends due process and requires reversal when it “infuse[s] the trial with unfairness.” (Estelle v. McGuire (1991) 502 U.S. 62, 75; see also United States v. Lemay (9th Cir. 2001) 260 -29- F.3d 1018, 1026-1027 [admission ofpropensity evidence offends due process when its probative value is substantially outweighed by the danger of prejudice].) Here, the indictment included both a substantive “gang conspiracy” (Pen. Code, § 182.5) charge, as well as gang enhancements (Pen. Code, § 186.22, subd. (b)) on the conspiracy and murder counts. (5 CT 983-995.) Under both provisions, the prosecution must prove, among other things, the commission of two predicate crimes by membersofthe gang. (Pen. Code, § 186.22, subd. (e) & (f).) In People v. Tran (2011) 51 Cal.4th 1040, 1044, 1049, this Court refused to adopt a perse rule against use of the defendant’s own crime to prove the predicate offense element ofthe gangstatute. At the same time,this Court recognized that evidence of a defendant’s own criminal activity is “inherently prejudicial”(/d. at p. 1047), and thatits probative value “inevitably decreases” with each additional offense the prosecution brings in. (/d. at p. 1049.) Under such circumstances, it becomes cumulative and, hence, more prejudicial than probative. (People v. Leon (2008)161 Cal.App.4th 149, 168.) Here, the prosecutor presented voluminous evidence about crimes committed by Surefio gang members. Literally any one ofthese crimes could -30- have been used as a predicate offense for the gang allegations. Given this reality, the 2007 drug conviction was of minimal probative value. The Court ofAppeal foundthat the 2007 evidence wasnot prejudicial, compared to the “numerous acts of violence” which were admitted against Elizalde. (Opinion, p. 69.) But the prejudice in the 2007 drug incident was that it possessed a unique capacity for misuse. Althoughit did not in any way connect Elizalde with the charged conspiracy, it did give rise to the superficially plausible inference that, since Ruelas and Sancheztold thetruth about Elizalde’s drug dealing activities, they could also be trusted when it cameto their testimony and statements about the conspiracy. Because Elizalde’s 2007 drug arrest was substantially more probative than prejudicial, the trial court abused its discretion, and infectedthetrial with unfairness, by admitting it to prove the predicate crime element of the gang allegations. The error was prejudicial for the reasons set forth in Argument (III)(C), supra, at pp. 19-22, and also because the prosecutor affirmatively misused the 2007 drug arrest — citing it as corroboration of the accomplice testimony, even thoughthetrial court’s original ruling expressly limitedits admission to only the gang allegations. (36 RT 6427, 6467.) \\ \\ -31- Vil. The Trial Court Violated Elizalde’s Due Process Rights, and His Sixth AmendmentRight to the Effective Assistance of Counsel, by Instructing the Jury That it Could Use His 2007 Drug Arrest as Substantive Evidence of the Conspiracy. As discussed in the previoussection, the trial court ruled that Elizalde’s 2007 drug arrest was admissible solely to prove the predicate crimes element ofthe gang allegations. (8 RT 1412-1413; 11 RT 2214-2216.) Whenit came timeto instruct, however, the court permitted the jury to use the 2007 incident in order to prove motive, intent, and Elizalde’s participation in a conspiracy. (14 CT 3652; 34 RT 6082-6083.) This error violated both Elizalde’s Fourteenth Amendment due process rights and his Sixth Amendmentright to effective counsel. A. Thetrial court violated the Fourteenth Amendment’s due process clause byinstructing the jury that it could use Elizalde’s 2007 drug arrest as evidence of his participation in a conspiracy. “An important element of a fair trial is that the jury consider only relevant and competent evidence bearing on the issue of guilt or innocence.” (Brown v. United States (1968) 391 U.S. 123, 131, fn. 6.) Admission of irrelevant evidence offends the Fourteenth Amendment’s dueprocess clause whereit results in an unfair trial. (Lisenba v. California (1941) 314 U.S. 219, 236; Estelle v. McGuire, supra, 502 U.S.at p. 75.) -32- Here,the trial court deprived Elizalde of his Fourteenth Amendment right to a fair trial by allowing the jury to use his 2007 arrest in a way for whichit was never admitted: to prove conspiracy, motive, and intent. (See 27 RT 4851-4852.) Moreover, the 2007 incident had no probative value on any of these issues because: (1) Elizalde was not charged with conspiracy to distribute drugs; (2) his drug dealing could not possibly have provided a motive to shootrival gang members who werefar outside his ownterritory; (3) his drug arrest pre-dated the conspiracy’s first act by more than five months; and (4) his 2007 conviction was for bare possession ofnarcotics. Besides being error in its own right, the trial court’s instruction also heightenedthe prejudicial effect ofits original error in admitting the 2007 drug arrest. As discussed in section (VI)(B), supra, at p. 31, the prosecutor’s closing argumentinvited the jury to use Blizalde’s 2007arrest in the very way prohibited by the original ruling: as substantive corroboration of the accomplices’ testimony. Thetrial court’s instruction had exactly the same effect — except this time it came with the court’s own imprimatur. Asa result, it was even morelikely to lead the jury to misuse the 2007 arrest as evidence of Elizalde’s guilt. \\ \\ -33- B. The trial court’s misinstruction deprived Elizalde of his Sixth Amendment right to the effective assistance of counsel and, therefore, requires reversal perse. The trial court’s instruction not only violated due process, but also deprived Elizalde of his Sixth Amendmentright to effective counsel. There are two ways in which a defendant’s right to effective counsel can be violated. The most common way is for defense counsel to perform inadequately. (Strickland v. Washington, supra, 446 U.S.at p. 686.) Another way, however,is through actionsofthe court which deprive the accusedofthe effective assistance of counsel. (Geders v. United States (1976) 425 U.S.80, 91; Herring v. New York (1975) 422 U.S. 853, 862-865; Brooks v. Tennessee (1972) 406 U.S. 605, 612-613.) Here, defense counsel, having been assured that Blizalde’s drug dealing activities could not be used as substantive evidence ofguilt, proceeded to craft a defense around the themethat Elizalde was a drug dealer, but not the VFL “shot-caller.” During Victor Cervantes’s testimony, defense counsel intentionally elicited evidence that Elizalde’s “main occupation” wasselling drugs. (27 RT 4770.) Later, when Sergeant Aaron Roth and Officer Louis Lombardi testified about Elizalde’s 2007 drug arrest, defense counsel conducted little cross-examination, and did not challenge Roth’s opinion that Elizalde possessed the methamphetamine for sale. (27 RT 4831.) During -34- closing.argument, defense counsel concededthat Elizalde wasa drug dealer. (36 RT 6489.) Counsel’s decision to concede Elizalde’s drug dealing activities was entirely reasonable in light of the trial court’s previous ruling on the 2007 incident’s limited admissibility. Drug dealing is a far cry from murderand,if the jury was going to hear about the July, 2007 arrest anyhow,it made good sense to concedea point which had nothing to do with Elizalde’s guilt in this case. Unfortunately, the decision backfired — through no fault of defense counsel ~— whenthetrial court reversedits earlier ruling and did permit thejury to use Elizalde’s drug arrest as affirmative evidence of intent, motive, and participation in a conspiracy. (14 CT 3652; 34 RT 6082-6083.) The Court ofAppeal noted that the jury received a limiting instruction at the time the drug evidence was admitted, and waslater instructed on the use of evidence admitted for a limited purpose. (Opinion, p. 67, fn. 35; 34 RT 6077-6078.) But the trial court also gave CALJIC No. 2.50 on “other crimes” evidence — an instruction which directly applied to the 2007 drug incident. (34 RT 6082-6083.) That instruction specifically permitted the jury to use the “other crimes” evidence to show intent, motive, and the existence of a conspiracy. When a correct instruction contradicts an incorrect one, the “reviewing court has no way of knowing which of the two irreconcilable -35- instructions the jurors applied in reaching their verdict.” (Francis v. Franklin (1985) 471 US. 307, 322.) Whenthetrial court interferes with the accused’s Sixth Amendment right to effective counsel, the erroris not subject to harmless error analysis but is simply reversible per se. (Perry v. Leeke (1989) 488 U.S. 272, 278-280; Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, 1237.) Assuch,it is not necessary to assess prejudice. To the extent, however, that this Court does deem the issue subject to harmless error analysis, Elizalde incorporates by reference his previous prejudice argument,set forth in section (IID(C), supra, at pp. 19-22. VI. Defense Counsel Provided Ineffective Assistance, in Violation of the Sixth Amendment, by Failing to Object to Irrelevant and Prejudicial “Other Crimes” Evidence. The prosecutor’s theory was that Elizalde was leading a conspiracy to “take back the hood”and shootrival gang members. However, the prosecutor also brought in numerousunchargedacts ofviolence which Elizalde allegedly ordered — none having anything to do with the charged conspiracy. Defense counsel’s failure to object to this inadmissible “other crimes” evidence constituted ineffective assistance of counsel in violation of the Sixth Amendment. -36- Under Evidence Code section 1101, subdivision (a), evidence of a person’s character (including evidence of prior crimes or bad acts) is inadmissible to prove his conduct on a specific occasion. Here, the prosecutor introduced evidence of numerous incidents in which Elizalde wasallegedly involved in the planning of serious crimes that had nothing to do with this case. For instance, Jorge Sanchez testified that, sometime after Hector Molina’s December 22, 2007 shooting of three Nortefios, Elizalde directed Sanchezto kill one of the surviving witnesses so he could not testify. (14 RT 2749-2751; 3 Aug. CT 639.) Ruelas claimed that he received similar instructions — telling police that Elizalde wanted him to send two peeweesto kill “this homie snitched on [Molina].” (3 Aug. CT 681; see also 3 Aug. CT 647-648.) A peewee is a young gang member. (14 RT 2617.) Ruelasalso told police that “Weasel” — who ran VFL from state prison — ordered Elizalde to kill an informant or, if they could not find him, the informant’s child. (3 Aug. CT 664.) Elizalde did not want to do it, but he eventually sent someoneto burn the informant’s house down.(3 Aug. CT 664, 713-714.) Ruelas additionally talked about another “hit” in which Elizalde ordered a house burned down on “Market Street.” (3 Aug. CT 655.) -37- Ruelastestified that Elizalde kept a hit list ofpeople whom he wanted killed. (3 Aug. CT 654.) He also kept a stash of gunsathis brother-in-law’s house. (3 Aug. CT 662, 695.) Ruelas described an incident in which Elizalde directed him to kill someone named “Paiso,” who had slashed Elizalde’s tires. (3 Aug. CT 698, 713-715.) Elizalde said that he plannedto check into Kaiserjust before Ruelas carried out the shooting; that way, the police would be unable to pin the shooting on him. (3 Aug. CT 714-715.) Ruelas told police that Elizalde was killing indiscriminately and “for no reason,” causing many of the peeweesto end up in jail. (3 Aug. CT 656.) The Court ofAppeal found these uncharged incidents “highly relevant” to show that Elizalde was VFL’s“shot caller” and engaged in the charged conspiracy. (Opinion, p. 70.) The “other crimes” evidence, however, had nothing to do with any conspiracy to “take back the hood” from Nortefios. Moreover, far from showing that Elizalde was the shot caller, the evidence suggested that the members ofVFL were free agents, whotookorders from no one. Afterall, there was no evidence that any ofthese orders wasevercarried out; in fact, most, if not all of them, clearly were not. As there could be nopossible tactical motive for allowing this type of devastating character evidence to comein against Elizalde, defense counsel’s -38- failure to object to the evidenceconstituted ineffective assistance in violation of the Sixth Amendment. (Musladin v. Lamarque (9th Cir. 2009) 555 F.3d 830, 846-847 [trial counselineffective for failing to seek limitation on highly prejudicial “other crimes” evidence].) Absent the ample evidence of Elizalde’s uncharged crimes, it is reasonably probable that at least one juror would have been left with a reasonable doubt about Elizalde’s guilt. (Strickland v. Washington, supra, 466 U.S. at p.694.) The “other crimes” evidence allowed the prosecutorto portray Elizalde as someone who was ordering shootings almost constantly and planning those shootings downto the minutestdetail. The jurors were, thus, likely to infer that he was also behind the charged shootings, just as he was behind all the uncharged ones. They werealso likely to not particularly care one wayorthe other, but to simply convict Elizalde because, whateverhis guilt of the specific offenses charged, he was guilty of ordering other murders. But for counsel’s failure, it is reasonably probable that the jury would have acquitted Elizalde, or been unable to reach a verdict, on some or all counts. Accordingly, the error is prejudicial. \\ \\ \\ -39- IX. The Cumulative Effect ofthe Errors Was Prejudicial and Requires Reversal. Where multiple errors have permeated a defendant’s trial, the reviewing Court must examinethe errors’ cumulative impact. (Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 932-933.) If at least one of those multiple errors is of federal constitutional dimension, the Court must evaluate their cumulative effect under the standard of Chapmanv. California, supra, 386 U.S.at p. 24. (See People v. Stritzinger (1983) 34 Cal.3d 505, 520-521 ) | Here, even ifno one error was prejudicial in its ownright, it cannot be said beyond a reasonable doubtthat their cumulative impact was harmless. AS such, this Court must reverse Elizalde’s convictions on the murder and conspiracy counts. X. Elizalde Joins in the Arguments of Co-appellants Javier Gomez and Jose Mota-Avendano. In addition to the foregoing, Elizalde hereby joins in all arguments presented in the petitions for review of co-appellants Javier Gomez and Jose Mota-Avendano. Elizalde further adopts those argumentsby referenceto the extent that they are applicable to him. (Cal. Rules of Court, rule 8.200(a)(5).) \\ -40- CONCLUSION Forall of the foregoing reasons,this Court should grant reviewin this matter. DATED: December26, 2013 -4]- Respectfully Submitted, Yl. (wld SOLOMON WOLLACK Attorney for Appellant Gamaliel Elizalde WORD COUNT CERTIFICATE (Cal. Rules of Court, rule 8.504(d)(1)) I, Solomon Wollack, appointed counsel for Gamaliel Elizalde, hereby certify, pursuant to rule 8.504(d)(1) of the California Rules of Court, that I preparedthe foregoingpetition for review on behalfofmyclient, and that the word countforthis petition is 8,257 words, which does not includethetables, the Court of Appeal’s opinion, or this Certificate. The petition therefore complies with rule 8.504(d)(1), which limits a petition for review to 8,400 words. I certify that I prepared this document in Wordperfect X5 andthat this is the word count Wordperfect generated for this document. Dated this 26th day of December, 2013 df By: ilu AW | Solomon Wollack -42- EXHIBIT A Court of Appeal’s November 19, 2013 Opinion Filed 11/19/13: mod. and part. pub. orders 12/19/13 (see attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, ainti dent,Pl ff and Respondent A132071 v. GAMALIEL ELIZALDEet al., Defendants and Appellants. (Contra Costa County Super. Ct. No. 050809038) I. INTRODUCTION This case involves four victims: Antonio Centron, Luis Perez, Lisa Thayer and Rico McIntosh. Defendant Javier Gomez was found guilty of the second degree murder of McIntosh and the jury found true enhancements for participating in acriminalstreet gang and intentionally discharging a firearm causing bodily injury or death. A second jury found defendants Mota andElizalde’, guilty of the first degree murder of Centron, Perez and Mcintosh and came back with an acquittal as to Lisa Thayer. The jury also found Mota and Elizalde guilty of conspiracy to commit murder, participating in a criminal street gang and found true enhancements for participating in a criminalstreet gang. As to Mota, the jury found true an enhancementfor intentionally discharging a firearm causing great bodily injury or death. Elizalde was also found guiltyof dissuading a witness by force orthreat of force. " Because Gomez confessed to one of the murders and implicated Mota, the court ordered a single trial with two juries: one jury for Gomez and the second jury for Mota and Elizalde. On appeal, Gomez arguesthat (1) the trial court had a sua sponte duty to instruct the jury that an unforeseeable supervening cause might have caused Rico McIntosh’s death (Elizalde and Motajoin in this argument); (2) the trial court did not properly answer the jury’s questions regarding the elements of second degree murder (Elizalde joins in this argument); (3) the trial court erred in permitting testimony regarding threats to witnesses (Elizalde and Motajoin in this argument); and (4) the trial court erred when it failed to instruct the jury that witness Oscar Menendez was an accomplice as a matter of law (Elizalde and Mota join in this argument). Mota argues thatthe trial court erred when it (1) found that there was no prima facie case of discrimination with regard to an African-American prospective juror (Gomez and Elizalde join in this argument); (2) gave the jury the task of determining whether four witnesses were accomplices (Gomez and Elizalde join in this argument); (3) admitted into evidence a statement Mota made during booking regarding his gang affiliation (Gomez and Elizalde joinin this argument); (4) instructed the jury notto speculate about why unjoined perpetrators were not tried in the sametrial (Gomez and Elizalde join in this argument); and (5) admitted evidence that Mota attacked Jorge Sanchezin jail (Gomez and Elizalde join in this argument). He also arguesthat (6) during his rebuttal to the defense’s closing argument, the prosecutor committed misconduct (Gomez and Elizalde join in this argument); and (7) there was cumulative eiror. Elizalde contends on appealthat (1) there is not substantial evidence to support the jury’s conspiracyfinding (Gomez and Mota joiin this argument); (2) the trial court failed in admitting phonecalls between Hector Molina and his mother underthe co- conspirator exceptionto the hearsay rule (Gomez and Mota join in this argument); (3) trial counsel was ineffective for failing to seek redaction of a statement Elizalde made to Molina’s motherduring one of these jail calls; (4) the trial court erred whenit instructed the jury, pursuant to CALJIC No. 3.13, that the required corroboration of the testimony of an accomplice may not be supplied by the testimony of any other accomplice (Gomez and Mota join in this argument); (5) the trial court erred whenit admitted evidencethat b o Elizalde possessed methamphetamine for sale to prove a predicate offense for the gang charge and enhancements (Gomez and Motajoin in this argument); (6) counsel was ineffective for failing to object to other crimes evidence regarding the conspiracy to commit murders (Gomez and Motajoin in this argument); and (7) there was cumulative error. With the exception of the admission of Mota’s un-Mirandized’ statements made whenhe was bookedinto jail, an error that was not prejudicial, we find no other error and affirm the judgments. ll. FACTUAL AND PROCEDURAL BACKGROUND A. The Murders Defendants Mota and Elizalde were convicted of three murders that occurred over a four-month period between December 22, 2007, and April 25, 2008. Gomez was convicted of one of the three, that of Rico McIntosh. The most significant testimony regarding these murders came from fellow gang members and/orfriends, Jorge Sanchez (Centron murder), Victor Cervantes (Centron murder), Oscar Menendez (McIntosh murder), and Larry Valencia (Perez murder). 1. Antonio Centron Murder Jorge Sancheztestified that in exchange forhis testimony he pled to accessory after the fact to murder, and received a three-year suspended sentence. Sanchez, who was notin the countrylegally, also had a “parole in place” arrangementwith Immigration and Customs Enforcement and, as a result, wore an ankle bracelet monitor. Sanchez testified that he was a memberof Varrio Frontero Loco’, a subset of the Sureiio gang, whichis active in Contra Costa County. * Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). > As one ofthe prosecution witnesses explained, Varrio Frontero Loco “just stands forit’s a hood, you know,no matter from where country youare from, youare in the hood.” The evening ofDecember 22, 2007, Francisco Romero , who wasalso a Varrio Frontero Loco, gathered together a number ofpeople and went to North Richmond.* Whenhe arrived, Molina phoned defendant Gamaliel (Gama) Elizalde’ “because supposedly he wasgoing to put a meeting to go up there, just fight them[the Richmond Sur Trace members].” After speaking to Romero, Elizalde came to North Richmond. Elizalde then tried to call a Richmond Sur Trace memberin order to arrange a fight but wasnotable to reach anyone. After the failed effort to engage the Richmond Sur Trace, Sanghez, Romero and Molina eventually drove to the Broadway area of San Pablo, which was knownto be Norteiio territory. Sanchez understoodthat if they found Nortefios there they would beat them up orshoot them. He understoodthis “waspart of the deal of being a. . . [Varrio Frontero Loco] Surefio at this time.” That same evening, the victim, Antonio Centron, along with two friends, Neil Wixson and Adrian Espinoza,attended a party in the Broadway area of San Pablo. They stayed at the party for a couple of hours and then walked downLake Street, toward 19th Street to buy beer. This area of San Pablo wasa stronghold of the Nortefio gang. Wixsonand Centron worered shirts, a color associated with Nortefios. Centron walked a little ahead of his friends. Romero drove by Centron, Wixson and Espinoza. Molina, who wasin the right front passengerseat, told Romero he knewoneofthe three men. Molinapulled outa handgun and directed Romero to park down the next street. Romero parked and Molina ran out, and hid behind a fence, waiting for Centron, Wixson and Espinoza to cometo the corner. Whenthey did, Molina told them he was “VFL” and emptied his gunin their “ Preceding this gathering, there had beenaltercations between members of Varrio Frontero Loco and another Surefio gang called Richmond Sur Trace as well as with rival Nortefio gang members. ° We identify the witnesses, victims, defendants and other participants in this trial by their full namesratherthantheir gang nicknames. Where necessaryforclarification, wewill indicate the full name of any personidentified in testimony solely by his gang nickname. direction. His first shot hit Centron in the head. Centron died almost immediately. Nine more shots hit Espinoza in the back. Molina’s final shot hit Wixonin the arm. Espinoza, whowasstill conscious (and ultimately survived his injuries) called 911. After killing and wounding the men he believed were rival gang members, Molina ran back to the car and they sped off. In the car, Molina was jumpyand excited. According to Sanchez, Molinasaid “to watch the newspaper. That*s—that was going to be his trophy.” A newspaperarticle about akilling was “[lJike a signature that you did it.’ The killing would give Molina “more respect” in the gang. Molina called Elizalde to tell him what he’d done. Elizalde arrived “and just started telling himjust be quiet, stop, you know, screaming and just lay low.” The next day, the police detained and searched Molina. They found in his possession a. .45 caliber chrome Colt semiautomatic handgun, a blue bandana, and a blue baseball hat. The police arrested him and charged himwith possession of a concealed firearm. Molina wasreleased fromjail four days later. Victor Cervantestestified that right after Molina got out ofjail, he called Cervantes and asked for a ride home. Molina told himthat he’d killed one man and another was in a coma. Healso told Cervantes that he’d been with Francisco Romero whenhe’d killed the man. Cervantes asked lim how he got outofjail when he’d been caught with a gun. Molina told him that he got caught with a different gun than the one used in the killing and, as a result, he had gotten away with murder. In an interview with the police, Luis Ruelastestified that Molina admitted to him that he was imthe car with Romero and Sanchez that evening and that Molina said he had shot at three men and killed one of them. Defendants Elizalde and Mota were found guilty of Centron’s murderas co- conspirators. 2. Luis Perez Murder Larry Valencia was one ofthe prosecution’s main witnesses with regard to the murder ofLuis Perez. Valencia had not made a pleabargain with the District Attomey’s office, nor was he receiving any witness protection or moneyfromthe District Attorney’s office. Valenciatestified that late on the night of February 16, 2008, he decidedto visit friends in North Richmond. After an evening of drinking beer, smoking marijuana and taking Ecstasy someonesaid,“[IJet’s jump for aride. Let’s go find some females to party.” Hector Molina, Jorge Camacho, and Jose Mota got into Mota’s black, two-door Kia. Molina sat in the driver’s seat, with Jorge Camacho next to himin the passenger seat and Mota in the back. Cole Azamar and Luii Hernandez got into Azamar’s car, with Azamar driving and Hernandezsitting in the passenger seat. Al] five men were members of Varrio Frontero Loco. They encouraged Larry Valencia (whotestified that he was not a gang member) to join themandhe got into the back seat of Azamar’s car. After the two cars drove around for a while, with Azamar following Molina, they arrived in San Pablo. Valencia was aware that this was Nortetio territory. Molinastopped the car and Valencia saw the people in Mota’s car arguing with a manin a red jacket—the victim, Luis Perez—who wasstanding nextto the car. He saw Camachoget out of the car and say to the man, “[s]how me your hands, show me your hands.” The manyelled “[w]hat the fuck is going on?” Valencia heard three loud shots and saw Camachoshoot the manthree or four times. In fact, Camacho hit Perez seven times: two bullets to the abdomen, twoto the back and three to the back of his arms. The bullets passed through Perez’s lungs, heart and liver. Perez died enroute to John Muir Hospital in Walnut Creek. Camacho got back into the car with Molina and Mota and Molina drove away. Valencia had never seen anyone killed before. Valencia told Azamar to take him back to his car so he could go home. Mota was found guilty of Perez’s murder on anaider and abettor theory. Elizalde was found guilty as a co-conspirator. 3. Lisa Thayer The third victim, Lisa Thayer, died when Jorge Camacho,a memberofVarrio Frontero Loco, exchanged shots with several unidentified men in a Toyota minivan. This altercation beganlate in the afternoon ofFebruary 27, 2008. Camacho and his friend Antonio Solomon, were walking on San Pablo Avenue in San Pablo.® Solomon Was wearing a New York Yankees hat. In that area, that kind of hat was understood to stand for “Young Narfer,” a reference to North Richmond, which was Sureiio territory. A burgundy Toyota minivan with a Hispanic driver and front seat passenger and African-American passengerin the back seat passed Solomon and Camacho. Solomon and Camachoran. The men in the minivan chased them. Eventually, the minivan pulled up behind Solomon and Camacho. The side door opened, revealing that the back seat passenger had a gun. Camacho shotat the van with the same 9 mm semiautomatic handgun he used to kill Perez. He fired nine times. The manin the vanalso fired a .40 caliber semiautomatic handgun several times. Lisa Thayer, who was walking on San Pablo about half a block from the shooting, washit by a bullet. The bullet hit her in the back, went through herright hmg and came out at her chest. Thayer died soon afterwards. Solomon and Camachoran from the scene with the van following them. Someone in the vanfired several more shots at them. Soloman and Camachoclimbeda fence and ran to the apartment of a friend—Ignacio Mendoza. When Mendoza’s mothertold them to leave, Camacho gave his gun to Mendoza and left with Solomon. Thepolice arrived nearby, a witness pointed them out and they were arrested. Camacho had a blue bandana in his pocket. The jury found defendants Mota and Elizalde not guilty of Thayer’s murder. 4. Rico McIntosh The fourth shooting occurredin the early morning hours of April 26, 2008. Oscar Menendez, who was presentat the shooting, testified that he had pleaded to accessory to the murder of McIntosh with a gang enhancement. He was given three years probation. ° Muchofthe evidence regardingthis incident came from aninterview between Solomonandthe police. As a condition ofhis plea, he agreedto testify in court. At the time hetestified he was in “parole in place,” which meant he wore an ankle monitor required by Immigrations, Customs and Enforcement. The People were assisting him in obtaining a work permit. Menendez had not violated any of the terms of his probation orthe terms and conditions imposed by Immigration, Customs and Enforcement. Hedid not receive any money from the District Attorney’s office. Menendeztestified that he had known Motafor several years. Mota was a member of Varrio Frontero Loco. Menendez also knew Javier Gomez. The three of them hung out together and “sometimes we used to get in the car and just cruise around.” Gomez belongedto a Surefio subset called Mexican Loco.’ Menendez had been at parties where membersof the two Sureiio subsets would brag “about crimes they have done during the week or, you know,any stuff that they doing, you know,like beating somebodyup or robbing people or whatevercrimes they do, they used to brag aboutall of the time.” Six months before the McIntosh murder, Menendez became a Surefio. Menendez described anincident that occurred about a week and a half before the McIntosh murder. He, Gomez and Mota wentto visit Gomez’s cousin who lived in Montalvin, which was Nortefio territory. Mota drove-his Kia, and Gomezsatin the front passenger seat. Menendez sat in the back. The cousin wasn’t home,so they tumed around to return to Richmond. Asthey did so, Gomez and Mota saw a man wearing red who wasfixing his car. Mota and Gomez “said he was a Buster. He was wearing red... .” Menendez didn’t agree and when he saw that Gomez and Mota had a gun’ in the front seat he told them to drop the gun. Menendez tried to grab the gun andithe ensuing scuffle, someone shot Menendezin theleg. ’ During a search of Gomez’s home,the police collected evidence of Gomez’s gang membership—four CD cases with “Surefio-typetitles on them,”“six individual CDs with Surefio-typetitles,” “[a]nother CD . . . again, with Surefio-typetitles,” “[t]wo blue bandanas.” ® Menendez had found this gun earlier, but he gave it to Mota when Motatold him that he (Menendez) couldn’t shoot it and “might as well just give it to him... .” Menendez wasbleeding heavily, so Mota and Gomez took himto the hospital. The police questioned Menendez andhelied and told them that they had been jumped and he had beenshot in the leg because he told his assailants that he didn’t have any money. Several weeks later, Gomez and Mota pulled up to where Menendez was hanging out with some friends and “they were calling me, right, and I went to the car and they say get in the car. I was like where are you guys going? They said don’t trip.” As on the other occasion, Mota was driving and Gomez wasin the front passenger seat. Menendez asked if his friend could go too, and Mota told him he couldn’t. Menendez got in the car and they decided to go to a McDonald’s on San Pablo near Broadway. Instead of turning right into the McDonald’s, however, Mota turned left onto Broadway. Menendez asked Mota were he was going and he said “don’t trip.” Mota kept driving. At this point, they were driving into Nortefio territory and Menendez thought “they were looking for some Norteifios .. . or they were trying to do something again.” Gomez spotted three men wearing red at a stop sign. Mota stopped the car and asked the menif they were “busters.” The mensaid they weren't, and Menendez recognized one of themand told Mota that “they don’t bang... .” Mota drove away but “he kept on mugging’ them.” Mota then spotted Rico McIntosh, who looked, to Menendez.like he was wearing a red bandana and had some “red onhis pants, too.” Mota and Gomez thought he looked like a Nortefio. They pulled alongside McIntosh and Gomez asked him“ifhe is a buster.” McIntosh said “what the fuck is a buster?” Menendez thought he heard Mota say “pull it out.” He then saw Gomez reach downtoward his leg. McIntosh made a gesture as thoughto reach for something and Menendez thought it was a gun. Gomez began to fire the gun out of the windowofthe car. Menendez heardfourorfive shots. McIntosh fell and Mota and Gomez began to langh. Menendez told them it wasn't funny and they told him he was a “pussy.” Menendez said he wanted to go home. “I! told them ” Menendez defined “mugging”as “like he look hellabad at him.” what they just did, it was wrong because I never seen somebody kill anotherpersonlike that.” Mota and Gomez “seemed pretty happy, like they just won the lottery or something. They were really excited aboutit.” Mota and Gomez wantedto celebrate, but Menendez asked to go home. Onthe way, Mota and Gomeztalked andsaid, “Oh, you know, what the homies are going to say when they find out, or was he good, was he bad, you know they were saying that it was like, you know,it was like perfect. Perfect is no one sees them. [€] No one seen us when we were there. When that happened there wasno people atall, just that guy.” Whentheyarrived at Menendez’s house, Mota left the gun with Menendez. He told Menendez that he was on parole and couldn’t haveit. A weekor so later, Menendez went to a party with members of Varrio Frontero Loco and Mexican Loco. At the party, Gomez “started talking aboutit.” Ruelas was also present, along with a numberof other Varrio Frontero Loco and Mexican Loco. Mota wasalso there. Gomez confessed to the McIntosh murder. Hetold the police that Mota picked him up the night of the murder and the two of them went to look for Nortetios. Mota gave himthe gun he used to shoot Rico McIntosh. Mota’s job wasto drive until he sawa Nortefio and then stop. Gomez didn’t plan to shoot anyone who wasn’t a Nortefio. After driving aroundfor a while Mota and Gomez picked up Menendez. Menendez satin the back seat. They continued to look for Nortefios, slowing down to look and thenruling out a numberof groups of people who were out that night. Eventually, either Mota or Menendez spotted McIntosh, who was walking down the street. Mota told him that McIntosh had some red on. Gomez “asked him, are you a Buster? And he said, what the fuck is a buster? He, he had a hoodie. Then helike, he pulled the hoodie downasifhe wanted to do something, so I just shot him.” He shot McIntosh until there were no bullets left in his gun. 10 After the shooting they went to a store and bought some beer and drank it at the cemetery. He gave the gun to Menendez. Menendez saw the whole thing from the backseat. Mcintosh washit in the hip and buttocks. He was taken to John Muir Hospital and released on April 28, 2008. The next day, McIntoshcollapsed and diedafter bloodclots caused by the gunshot wounds traveledto his lungs. Gomez was convicted of second degree murder. Mota was convictedoffirst degree murder as an aider and abettor and Elizalde was convicted as a co-conspirator. B. Conspiracy and Gang Evidence Several witnesses testified to a conspiracy on the part ofMota and Elizalde to commit murders of rival Nortefio gang members inorderto restore the reputation and fortunes of the Varrio Frontero Loco. 1. Jorge Sanchez Jorge Sanchez was a memberof Varrio Frontero Loco.'° “He joined because his older brother was in the gang. Sanchez’s brother was a member of the Mexican Loco, another Sureiio gang, and he joined the Varrio Frontero Loco because he wanted his own “name.” He was “jumped in”to Varrio Frontero Loco, through a process he described as “[j]ust imagine three guys beating on one person, kicking him, beating him,just thumping on him”for 13 seconds. He had also helped jump peopleinto the gang. Sanchez showed the jury a number oftattoos that signified his membership im Varrio Frontero Loco. Gang tattoos were important so people “won't mess with us.” A Surefio who wanted to prove himself would “[jJust go to the streets. Beat up any Nortefio you canthink of to start with. . . . [{] Just you earn respect and yourstripes. Start shooting or just doing whatever you want.” You would do this with other people “[t]o make sure youdo it. Just to make sure you ain’t lying about what you did.” When *° Of the witnesses who provided significant testimony regarding the workings of the Varrio Frontero Loco and Elizalde and Mota’s positions and participation in the gang, Sanchez wasthe only one the court concluded was an accomplice as a matter of law. Accordingly, the jury was instructed to viewhis testimonywith caution. il Sanchez wentout to attack Nortefios, he would take fellow Varrio Frontero Loco with him. He would dothat for “backup.” He would also doit to “make sure they doit, too. Makesure they look at you.” Sanchez understood thatat the time oftrial, Mota and Elizalde had “green lighted” him;that is, they had ordered him killed fortalking to the police. Green lighting did not occur until the actual text of a statement made to the police was distributed “to the streets,” generally through a defendant who receivedthe statement from his lawyer. Surefios were enemies with Nortefios because they were “mixed people”: “part Mexican . . . they mix with Mexican black, Mexican white.” You couldtell who they were by “[t]he hair, the clothes, the grill that is like the gold teeth they wear. [€] Andif they got tattoos you look attattoos, belts.” In particular, Nortefios had long hair, “all of the newclothes the black people be coming out with,” and wore the colorred, including red belts. Surefios identified themselves with blue bandanas and blue belts. Sanchez was familiar witha numberofNortetio sub-gangs including West Side Berkeley, Montalvin, Varrio San Pablo. Each of them claimed a particular area. Varrio San Pablo claimedthe area near Broadway and the Hilltop Mall. As a Surefio, whenhe saw a Nortefio he was supposedto “{t]akeoff, just don’t even think aboutit, just hit themup... . Just whoophisass.” Varrio Frontero Loco used violenceto scare “[jJust the people, Nortetios whoever-——everybody,the blacks, the whites, the Asians.” They did so “[jJust so they won’t mess with us... . [P]eople be picking on people. Sometimes people just look for a way out. And just make sure they scared of you instead of you being scared of them.” Famemattered because it was a way of “representing my hood,” “[j]ust to let people know. . . where youare from.” You did that by “doing a lot of things, shooting, selling drugs, getting money, cars, just whoop—whooping people in front of other people.” A Varrio Frontero Loco would “throwit up” bytelling someone whothey were, just make sure they know it. Being feared by rival gang members was a good thing “[y]ou can be walking the streets with no one, no oneis trying to hit you up or something.” 12 Gang members would get together and brag about what they had done in order to let people know that “if they mess with youthey will get the same . . . treatment.” He would also get together with other Varrio Frontero Loco and plan future crimes“to get respect or to make people afraid.” With regard to non-gang members, it was important to “let them knowthat .. . we don’t mess with you and you just don’t mess with us.” Drugsales were a part of being a Varrio Frontero Loco. Sanchez “wasn’t into that,” but he had seen fellow gang member Gamaliel Elizalde selling drugs out ofhis backyard. He would sometimes give drugs to Motato sell and Mota would brag aboutit. The drug sales were run out of Elizalde’s house. Varrio Frontero Loco held meetings to “check in with each other, to make sure what was going on with each other and just what kind of problems, like people got problems with someone, different rivals or with a Nortefio or something.” Sometimes the members would put money together for people injail to use for “hygieneslike toothpaste, soap, shampoo... .” Elizalde was in charge of putting money “on the books”for the Varrio Frontero Loco members who werein jail. The meetings were not held often. Sometimes the meetings would take place at Victor Valencia’s house and sometimesat Elizalde’s house. Occasionally. he and other members would “check,” or beat up, a member who wasnot “putting in work or he ain’t kicking it with us alot... .” At the time Sanchez joined Varrio Frontero Loco in 2005 or 2006,it was led bya numberof men, including Gamaliel Elizalde. Elizalde was an “OG! or leader, “the one youlook up to... . The one[] that you go ask for advice.” One ofthe benefits of being a leader wasthat he “get to kickback or just don’t do a lot of things no more.” A leader *! Sanchez explained that “OG” meant “{jJust like an old Cadillac, like an older guy, just the one whois like forties, thirties, forties.” You get to be an “OG”by going “througha lot .... They went throughtheirstages, just like we went throughourstages, we going through ourstages... . [§].. . [T]hey know morestuff than we do. They got more opportunities in their brain.” would not “fight somebodyor put a lot of work in the streets, shooting, whatever, just get to just relax and let the other generation do their work.” A leader would have money from“things going on onthe side... . [€] . . . like they were selling drugs ....” The leaders would use the “pee wees” or younger members “to distribute if... .” In 2007, there were several subsets of Surefios with whom Sanchez was familiar: his own gang, Varrio Frontero Loco, another gang called Mexican Loco anda third called Richmond Sur Trece. Although they were all Suretios, they did not always get along. In 2007, a Varrio Frontero Loco leadercalled “Toby” shot a member of a Richmond Sur Trece and fled, along with his brothers, to avoid being killed in retaliation for murdering a fellow Surefio. This left a void in the leadership of Varrio Frontero Loco, which was filled by Elizalde. As Sanchez put it, after Tobyfled, “everybody was just going to Gama,so that's the only one who we look up to and who was there with us.” Nevertheless, after Elizalde took over, Varrio Frontero Loco beganto dissolve. “[E]verybody just try to take it their own way. It was—just disappeared. Some of them went to some other towns. People got scared because they got shot at, who was getting stomped on.” At this point, Varrio Frontero Loco were “getting hurt” and “things were bad.” Sancheztestified that “we just had to get it back together.” He and others referred to this as “bring[ing] the hood back.” Todothis, it was necessary to “recruit[] new people and try to do more damage to the Nortefios, to the streets.” All of the Varnio Frontero Loco wanted to bring the hood back, including Elizalde. In termsofthe hierarchy of Varrio Frontero Loco, Elizalde was the leader, and Sanchez wasdirectly under him along with Mota, Ruelas, and several others. Elizalde told the Varrio Frontero Loco that they had to “put in more work,” “go to the streets, ride aroundthe streets,” “[mJakesure they [the Nortefios and everybody] know wearound, we ain’t gone.” They would do this by “hit[ting] the streets, nde around, especially in Nortefio territory.” Sanchez explained that this was effective because the Nortefios “don’t expect us to go. They think we going to be scared. They 14 think we goingto just lay back. And we gothere and they go, oh, man, they coming back and they coming back hard.” In Nortefio territory, [i]f you see them just shoot them or whoop them, whatever yougot. If you don’t got no gun youjust get out and do what you got.” Sanchez discussed this plan withall the Varrio Frontero Loco, including Mota. He didn’t talk to Elizalde about why he wantedto bring the hood back; he only knew that Elizalde “wanted it done.” According to Sanchez, he and Mota, along with Luis Ruelas, Luiit Hernandez, and Cole Azamar were “the ones who was going to bring them back . . . just the ones who got to take care of everything.” They covered different parts of Richmond. In addition to attacking Nortefios, they also recruited and “guided” “pee wees.” Elizalde wanted them to “get into the high schools and expandthe Surefios and hurt the Nortefios.” Shortly before Sanchez was arrested, Mota cameto his house. He was nervous because the police had beento his house. Mota told himthat he [Mota] “wentin the shootout.” He also spoke to Jorge Camacho whotold himthat he “shot a lady.” 2. Oscar Menendez Oscar Menendeztestified that at the time of the Rico McIntosh murder, he “‘was undecided” about being a Varrio Frontero Loco. He “didn’t want it for my future. . . it wasjust fine being with them, you know,being withgirls and havingparties, but I didn’t like the rest that they used to do.” He had a lot of Surefio mentions on his MySpace page, and he liked being around the gang because it “was fun because they always used to hang around with a lot of girls and they always used to have parties every weekend and, you know, beers and music.” He was aware that gang members “hunted and attacked Nortetios.” However, no one ever “told me to do it.” He wasnever “jumped in.” He associated with the Varrio Frontero Loco for six or seven months beginning in November 2007 until his arrest about a week after the McIntosh murder. It wastypical for gang members to brag about their crimes. He explained,“they say that’s what they get respect because when they-—whenthe rest of the guys knew what 15 youwere doing they will respect you more than what they do.” This was a “big deal” to the Varrio Frontero Loco. The Nortefios were the Varrio Frontero Loco’s rivals. Menendez knew whatareas were Norteiio territory. He also knewthat if a Varrio Frontero Loco foundaNortefio or saw one he was to “beat him up and if you have a gun you have to use it.” That is because the Varrio Frontero Loco “wanted to get rid of Nortefos.” He knewboth Javier Gomez and Victor Cervantes, both ofwhom were members ofthe Surefio gang, Mexican Loco. Whenheassociated with these gangshe knewthey got along “but not that much”atfirst. According to Menendez, Varrio Frontero Loco “wasn’t that much organized.” He “never knew who wasthe shot-caller . . . .”. He was aware that the members “used to receive orders from some older guys... .” Whenhe asked what they were doing,the members would say “don’t trip . . . that’s something that I got to do and that’s it.” In his own mind, he thoughtthat Elizalde was the shot-caller because he once heard him giving orders to someone. At one point, Elizalde told Menendez that “in orderto be a Surefio youhave to get down, you now, don’t have to be a fear of anybody, ifyou see a Nortetio onthe street you haveto put him on check, beat him up oranythingthatis in your hands to get him away from Richmond,and to don’t let them cometo Richmond,let them stay in San Pablo.” Specifically Elizalde told himthat if he sawa Nortetio he was to beat him up and if he had a gunto useit. Elizalde once told himthat in orderto be a Surefio he had to “stick with themall the time and commit sort of a crime that he used to commit—I had to do the crime that they used to do in the week andstick around with themand, you know, do whatever they—they were doing during the week.” This would include “[s]tealing cars and robbing people, shooting Norterios, beat them up.” Mota told himthe same thing. He also told him that he had to “earn” a Varrio Frontero Loco tattoo by doing something “big”like kill a Nortefio. On three occasions, he heard Elizalde instruct someoneto beat up a Nortefio orto look for him. He also heard Elizalde say that Richmond wasSurefio territory. 16 Menendez nameda numberof Varrio Frontero Loco as those with the most respect in the gang. They were Molina, Azamar, Camacho, Ruelas and Sanchez. Healso knew Larry Valencia, who he didn’t thik was a gang member. Hefelt that he had to do what Elizalde told him to do. He did not, however, think that he had to hunt Nortefios in San Pablo. Whenhe went with Mota and Javier Gomez on April 13, 2008, which was the day he shot himself by accident, he did not knowthat they were looking for Nortefios to kill. Nor did he think that was the case on April 26, 2008. Hedid not realize that they were looking for Nortefios to kill until the car did not turn toward the McDonald’s on Broadwayas he had expected. In jail, Menendez received a message on the module where he was housed from the Surefio shot caller. The messagelaid out in detail! how he was to behave while incarcerated. Among other things, he was to contribute moneyto buy food and supplies for other Surefios, he was not to speak to the police, he was to follow orders fromthe shot caller and if he was asked, he wasto beat people up the shot caller told himto attack. He was also required to give the shot caller a copy ofthe police report onhis arrest as well as any other legal materials in order to permit the shot caller to determine whether he was a snitch. Menendez refused to give these materials to the shot caller and, several dayslater, he was beat up by several Surefios. He entered protective custody afterwards. 3. Luis Ruelas Luis Ruelastestified that he was a member of Varrio Frontero Loco for six years until 2008. He was 14 or 15 when he was jumped into the gang. Jose Valencia brought himinto the gang. Ruelas’s testimony before the grand jury was admitted into evidence. In that testimony, Ruelas told the grand jury that he had “earned”a tattoo that said “Chap Killa” on his arm. He worked his way up fromthe bottom ofthe gang by earning “respect” through shooting and beating up Nortefios. Nortefios were identified by the colorred, while Surefios wore the color blue. Ruelas became close to one of the top people in Varrio Frontero Locoat the time, Victor Valencia. Valencia had secured their territory by running out another gang that had previously beenthere. 17 Ruelas was deported to Mexico and Victor Valencia fled the country. When Ruelas returned, Elizalde “was the main—wasthe kingpin at that time, but everything else was a mess onthe streets.” Elizalde was “moving all the drugs.” With Victor Valenciagone, “[h]e took overall our stuff.” Ruelas did not like Elizalde. Elizalde gave orders to kill people, including one occasion when Elizalde told Ruelas to “kill somebody because they poppedhistires.” He didn’t do it because at the time he was workingas an informant with the San Pablo police. As part of his deal with the police, he promised not to participate in the commission of any crimes. Elizalde also would send Ruelas outto collect debts using violence. On one occasion, before he returned to Richmond, Ruelas spoke to Hector Molina, whotold him “We miss you... . We bringing the hood back.” According to Ruelas, “the whole part ofbeing a Surefio” was to “assault or kill Nortefios.” Ruelas’s testimony at an earlier gang prosecution was also admitted into evidence. Atthat time, Ruelas testified that violence was an important part of bringing the hood back “[bJecause if... you don’t have people be scared ofyou, they ain’t going to respect you. They going to be like, you know, whatever. As long as you show them you really aboutit, they will think aboutit twice before they come at you.” Violencealso helped recruit new members who “seen what we were doing and they knew we had money. We had girls, we had everything. And they wantedit, too, so they started joming in.” Attrial, Ruelas was reluctantto testify because of threats to his family. Ingeneral, he either outright denied or claimed to forget testimony he hadearlier grven about Varrio Frontero Loco. Attrial, he testified that Varrio Frontero Loco did not have a structure in which there was a shot caller. Instead, there were people he looked up to, including Victor Valencia. Ruelasalso had respect for Elizalde because he washis elder. Ruelas showedthe jury tattoos on his forearmsthat said “Chap Killa.” A Chap, he explained, is a Nortefio gang member. He had donea lot of crimesto earnthetattoo. Oneofthe rules of being a Surefio “is just yougot to representyourself the right way.” To do that, you had to have respect, which you earned throughloyalty. Ifa Varrio Frontero Loco saw a Nortefio he was expectedto get into a fight with the Norteno. He 18 would sometimes go out and look for Nortefios to find. The Broadway area in San Pablo was one place the Nortefios hung out. He knewElizalde because they “used to kick it outside his house.” Elizalde was a Varrio Frontero Loco. He was older and “some guys came up to him foradvice.” Althoughhe hadearlier told the police that Elizalde was “running the streets,” he had done so because “I was just trying to save mylife from being prosecuted, but it was— what I said was wrong... .” In general, he retracted a numberof statements he made earlier in which he had identified Elizalde as the person who hadtaken over drugsales, the person to whomhe would go if he needed a gun quickly, and as having a list of people that needed to be hit. He also did not remembertelling the police that Mota brought a pound of methamphetamineto his house along with a gun and said he was going on a drug deal. D. The Verdicts The Gomez jury deliberated for three days and came back with a second degree murder verdict with regard to Rico McIntosh. It found the firearm and gang enhancements trie. Thetrial court sentenced Gomez to an aggregate terin of 40 years to life in prison. After four days of deliberation, the Mota/Elizalde jury brought back guilty verdicts on three murder counts and an acquittal with regard to the death of Lisa Thayer. It also found Mota and Elizalde guilty of conspiracy to commut murder, participating ma criminal street gang and found true enhancements for participating in a criminalstreet gang. As to Mota, the jury found true an enhancement for imtentionally discharging a firearm causing great bodily imjury or death. Elizalde was also found guilty of dissuading a witness byforce or threat of force. The court sentenced Mota to an aggregate term of 100 years to life. It sentenced Elizalde to an aggregate term of 103 yearsto life. This timely appeal followed. 19 Il. DISCUSSION A. Unforeseeable Supervening Cause Instruction Rico McIntosh’s death was caused by a pulmonary embolism 72 hours after he was shot and a day after he was released from the hospital. Gomez arguesthatthe trial court erred becauseit failed to instruct the jury, sua sponte, that they were required fo determine whether actions other than Gomez's—inparticular, the decisionofhis doctors to release him from the hospital—constituted an unforeseeable supervening case. Healso contends that the instructions the court gave were inadequate. We disagree. a. Factual Background MclIntosh died at around noon on April 29, 2008, after having been released from John Muir Hospital the morning before. Dr. Ikechi Ogan performed McIntosh’s autopsy. Ogan examined two bullet wounds; one was located on McIntosh’s right thighandthe other on his left hip. Neither was fired from close range. McIntosh had large hematomas on his thigh and hip where he had been shot. A large blood clot was blocking both of MeclIntosh’s lungs. Ogan determined that this blood clot, whichtotally blocked the flow ofblood, madeit impossible for McIntosh to breathe and was the cause of his death. The clot was caused by “complications of the gunshot wound to [McIntosh’s] pelvic region” and wasthe cause of his death. - Ogantestified that in general a doctor would knowthat bloodclots are “very likely when you haveinjury to the lower body and pelvis.” The trial court sustained an objection to defendant’s question about whetherthe doctors at John Muirshould have “kept an eye on” McIntosh. Ogan testified that McIntosh’s follow-up care at John Muir was not relevant to his determination of the cause of death: “I have no desire to comment on... why he was released. [§] Myjob wasto figure out a cause of death ofthis gentleman. And I did that with the informationI had. [{] I had enough information from the investigating officers and the sheriffs department to do what I had to do and I did that. [9] That he was released was not... in mycontrol. I had a dead bodyim front of me. I had to decide what killed this dead body and I did that.” 20 Whenaskedif the gunshot wounds would have been fatal “but for”the clotting, Ogan replied as follows: “[T]he best thing that I can say is that I have seen people who have gunshot wounds to an extremity, say a thigh or leg, who died. I have seen people who had a gunshot[] wound to the thigh or leg who didn’t die. Same with the pelvis,it all depends on the individual.” b. Discussion Gomez does not appear to challenge the instructions the court gave the jury on causation. Rather, he arguesthat the trial court should have mstructed the jury sua sponte that if it found that the decision to release McIntosh wasthe sole cause of his death (apparently if it was grossly negligent), then it could not find that Gomez wasthe cause ofMclIntosh’s death. Heis incorrect. Thetrial court’s duty to instruct the jury sua sponte extends only to the general principles of law that are necessary for the jury’s understanding of the case. (People v. Mayfield (1997) 14 CalAth 668, 773.) The court did so by giving the jury the full panoply ofinstructions on causation. '? Having adequatelyinstructedthe jury, the "? The trial court gave the jury several instructions on proximate cause. It instructed the jury pursuant to CALJIC No. 3.41 as follows: “There may be more than one cause of death of Rico McIntosh. When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of eachis a cause of the death if that conduct was also asubstantial factor contributing to the result. A causeis concurrent if it was operative at the moment of the death and acted with anothercause to produce the death. If youfind that a defendant’s conduct was a cause of death to another person, thenit is no defense that the conduct of some other person, even the deceased person, contributed to the death. It is not a defense to a criminal chargethat the deceased or some other person was guilty of negligence, which was a contributory cause of the death involved in the case. Where the original injury is a cause ofthe death, the fact that the immediate cause of death was the medical or surgical treatment administered or that the treatment was a factor contributing to the cause of death will not relieve the person whoinflicted the original injury from responsibility. Where, however, the original injury is not a cause of the death and the death was caused by medical or surgical treatment or some other cause, then the defendantis not guilty of the unlawful homicide [] Ifa person unlawfully inflicts a physical injury upon another personand that injury is a cause of the latter’s death, that conduct constitutes an unlawful homicide even though the myury inflicted was not the only cause of death. Or, moreover, that conduct constitutes 21 trial court did not have a duty give clarifying or amplifying instructions unless counsel requested them. (/d. at p. 778.) Nor does defendant argue that the instructions the trial court gave wereeither incorrect or misleading. Gomez instead arguesthat the court should have instructed the jury on the applicationofthese principles of causationto the decision bythe hospital to release McIntosh andinstructed the jurythat if it found that the decision to release McIntosh was grossly improper, they could conclude that this maltreatment was the sole source of death. Wedisagree. The court’s sua sponte duty to instruct on general principles of law does not extend to “pinpoint” instructions. (People v. Saille (1991) 54Cal.3d 1103, 1119.) Pinpointinstructions “relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case, such as mistaken identification or alibi. [Citation.] They are requiredto be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.” (/did.) Gomez did not request such aninstruction and the court had no sua sponte duty to give one. Therefore, we conclude that the jury was properly and adequately instructed onthe principles of causation. Nor does defense counsel’s decision not to request such an instruction amount to ineffective assistance of counsel. Giventhe lack of evidenceto support the defense theory that inadequate medical care wasthe sole cause of Mcintosh's death, any request for a pinpoint instructiononthis issue would have been unavailing. Moreover, evenifthe court had given this pinpomt instruction, the result would not have been more favorable to Gomez. Ogan determinedthat the cause of McIntosh's death was a blood clot that blocked the flow of blood and made it impossible for McIntosh to breathe. The doctor’s testimonythat the blood clot was caused by “complications ofthe unlawful homicide, evenif. [] One the person injured had been already weakened by disease, injury, physical condition orother cause; [{] Or, two, it is probable that a person in sound physical condition injured in the same way would not have died from the mjury; [{] Or,three,it is probable that the injury only hastened the death of the injured person; [%] Or, four, the injured person would have died soonthereafter from another cause or other causes.” 22 gunshot wound to [McIntosh’s] pelvic region” established that Gomez’s conduct wasa substantial factor in causing McIntosh’s death. In contrast, there was no evidenceto support the defense theorythat the decision to release McIntosh wasso grossly negligent as to be the sole cause of his death."” B. Jury Question Regarding Second Degree Murder Gomezargues that the trial court erred in its response to a question posedby the jury duringits deliberations. We disagree. Duringits deliberations, the jury sent out the following note seeking clarification: - “TRlegarding CALJIC 8.20 [first degree murder] . . . if the act of shooting resulted in a murder and the premeditation wasthe act of shooting, doesthis imply a premeditation of murder when murderwasthe result not the intent?” The court provided the jury with a typewritten response that first addressed the premeditation or“intent to kill” element offirst degree murder: “Underthe premeditation and deliberation theory offirst degree murder described in CALJIC 8.20 the defendant must have express malice that is, a manifest intent to kill, as well as premeditation and deliberation before acting.” The court then went on to describe the interplay betweenthe lack ofintent to kill and second degree murder: “If you find that the defendant intended to shoot, but did not have the intent to kill, then the resulting death would be a second degree murderonthis theory if you find that the death was a natural and probable consequenceofthe shooting. Please consider this response only in connection with all ofthe jury instructionsas a whole.” Although Gomez cites People v. Roberts (1992) 2 Cal.4th 271 in supportof his argument, this case actually undermineshis point. In Roberts, defense counsel requested a pinpoint instruction to the effect that“if the medical care [the victim] received after the assault was so inadequate that it amountedto the sole cause of his death, then he was not the proximate cause of Gardner’s killing and wasnotliable forit.” (id. at p. 311.) The court’s refusal to give this instruction was upheld because,as here, “the record is devoid of any evidence of grossly impropertreatment. . . . The jury need not be instructed ona theory for which no evidence has been presented. [Citation.]” (Ud. at pp. 312 -313.) 23 Gomez contendsthat the trial court’s statement regarding second degree murder was erroneous because the court did not include the entire definition of second degree murderin its response to the jury. Specifically, he argues that, because the court’s response to the jury’s question did not mention the third element of implied malice murder, namely that “the act was deliberately performed with knowledgeofthe danger to, and with conscious disregard for, human life” (CALJIC No.8.31), the response “invited the jury to avoid the question of conscious disregard altogether and find appellant guilty of second degree murderregardless of whether ornot he appreciated and disregardedthe risk to human life mherentin his actions.” He is incorrect. Penal Code section 1138'* imposes onthe trial court a mandatory “duty to clear up any instructional confusion expressed by the jury. [Citations.}” (People y. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on other grounds.) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete,the court has discretion under section 1138 to determine what additional explanations are sufficient tb satisfy the jury’s request for information. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Thetrial court respondedto a question about only one ofthe elements offirst degree murder—namely, premeditation. This response was appropriately tailored to the jury’s question. Moreover, the court explicitly stated that its response was not intended to encompassall issuesrelated to the crimesoffirst and second degree murder whenit instructed the jury to “consider this response only in connection with all of the jury instructions as a whole.” Gomez does not-—indeed, cannot--argue that the court’s instructions with regard to first and second degree murder,eitherinitially or after the jury’s inquiry, were incorrect. His argumentinstead is that the court was required to reimstruct the jury on the elements of second degree murder. In other words, defendant’s argument is that the court 4 All furtherstatutoryreferences are to the Penal Code, unless otherwise noted. 24 was prechided from answering the jury’s question about an element of these crimes without also reinstructing the jury as to all of the elements of these crimes. In fact, the court did makeclear to the jury that its response was intended to supplement rather than supplantits earlier instructions. By charging the jury with the responsibility of considering the instruction as a whole, the court ensured that the jury would not misconstrue its response as revising rather than clarifying the earlier | instructions. The jury sought an answerto a limited question. It was given one. Therefore,it is unlikely it would have considered the court's response as redefining the elements of second degree murder. Wereject defendant’s argument. C. Threats to Witnesses Gomez next argues that the trial court erred in permittng Oscar Menendez, Jorge Sanchez, and Luis Ruelasto testify about threats they received before theytestified. However, Gomez also concedes that, under Evidence Code section 780 and People v. Mendoza (2011) 52 Cal4th 1056, 1084-1086, such evidence is admissible to assist in the assessment of a witness's credibility and instead argues that, under federal law, the evidence was inadinissible. (Dudley v. Duckworth (7th Cir. 1988) 854 F.2d 967, 971- 972.) As defendant acknowledges, we are bound to follow our Supreme Court’s ruling on this issue and, therefore. reject this argument. (duto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) D. Instructions Regarding Testimony ofMenendez, Cervantes, Valencia and Ruelas 1. Menendez Defendants argue that the trial court erred whenit reyected defendant Gomez’s request that the court instruct the yury that Menendez wasan accomplice as a matter of law and, instead, allowed the jury to determine whether certain witnesses were : 5 : . . . * . accomplices.” Accordingly, defendants take issue with a numberofinstructions given '’ The People correctly point out that Elizalde has waived any objectionto thetrial court’s ruling that Menendez, Ruelas, Sanchez, and Valencia were not accomplices as a 25 by the trial court regarding the jury’s consideration ofwhether certain witnesses were accomplices. These instructions include the direction that“(t]he defendanthasthe burdenofproving by a preponderance of the evidence that each of the following witnesses was an accomplice in the crimes charged against the defendants: [€] Victor Cervantes [{] Oscar Menendez [{] Luis Ruelas [§] Larry Valencia.” The court also instructed the jury pursuant to CALJIC No.3.14 that “[mJerely assenting to or aiding or assisting in the commission ofa crime without knowledge of the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or facilitating the commission of the crime is not criminal. Thus a person who assents to, or aids, or assists in, the commission of a crime without that knowledge and withoutthat intent or purpose is not an accomplice in the commission of the crime.” Generally, the issue ofwhether a witness is an accompliceis a factual question. Only whenthere is no dispute as to either the facts or the inferences reasonablyto be drawnfromthe facts would the court find a witness an accomplice as a matter oflaw. (People v. Fauber (1992) 2 Cal.4th 792, 834; People v. Rodriguez (1986) 42 Cal.3d 730, 759 (Rodriguez.) Section 1111 defines an accomplice as a person whois liable to prosecution for the identical offense for which the defendant is being tried. In Menendez’s case, his responsibility for McIntosh’s death would have beenas an aider and abettor since Gomez rather than Menendez was the shooter. (People v. McLain (1988) 46 Cal.3d 97, 106 [§ 1111 covers all principals to a crime, including aiders and abettors|.) Menendez’s presence atthe scene, his failure to prevent McIntosh’s murder and even his assistance to Gomez and Mota with knowledge oftheir criminal purpose (of which there was no evidence) would not be enough to support a finding that Menendez was an accomplice as a matterof law. (Rodrigues, supra, 42 Cal.3d at p. 760.) Menendez would only be an matter of law. Elizalde told the court that he would “rather leave it [the determimation of whetherthese witnesses were accomplices] up to the jury .. ..” Nevertheless, we considerthis issue becauseit has also been raised by Mota. 26 accomplice as a matter of law if the evidence was undisputed that Menendez shared Gomez and Mota’s criminal purpose. (People v. Sully (1991) 53 Cal.3d 1195, 1227.) In fact, there was considerable evidence in the record that Menendez did not even realize that Gomez and Motaintended to look for and kill Nortefios, much less share their criminal purpose.'* Menendeztestified that at the time McIntosh was murdered he had not committed to being a Varrio Frontero Loco, not wanting that “for my future.” He wanted only to be with girls and go to parties with the gang members, “but . . . didn’t like the rest that they used to do.” Although he knew that gang members attacked Norteiios, he himself was never asked to join in. Menendez knewthat the Nortefios were the Varrio Frontero Loco’s rivals. Menendez knew what areas were Nortefio territory. He also knewthat if a Varrio Frontero Loco found a Nortefio or saw one he wasto “[bJeat him up and if you have a gun youhaveto use it.” He did not, however, think that he was expected to hunt Nortefios. When he went with Mota and Gomez on April 13, 2008, which was the day he shot himself by accident, he did not knowthat they were looking for Nortefios to kill. Nor did he think that was the case on April 26, 2008. He did not realize that they were looking for Nortetios to kill until the car did not turn toward the McDonald’s on Broadwayas he had expected. Menendez’s testimony that he neither wished nor was expected to join mthe violence against Nortefios, along with his testimonythat he was unaware that Gomez and Mota intended to shoot anyone the night McIntosh was murdered oronthe earlier occasion when he (Menendez) was accidentally shot, created a factual dispute as to te,'© Thetrial court specifically found that Menendez’s “version of events that when he first shot himself that is because he was grabbing the gunout of the hands of whoever washoldingit to prevent him from shooting someone. Onthe second occasionhe didn’t know that anyone had the gun until Mr. Gomezpulled it out and started shooting. [§] So my view is if the jury accepts Mr. Menendez’s versionof events,it is not as a matter of law that he is an accomplice. That is a factual dispute the jury must decide. [{]] And I am essentially finding the same thing asto all of the ones I listed in the instruction saying that the defense has the burden of proving it by a preponderance.” 27 whether he was an accomplice. The court, theref ore, properly put this matter before the jury. Gomezargues for the first time on appeal that t he People were judicially estopped from opposing his argument that the court should instruct the jury that Menendez was an accomplice as a matter of law because they had ea rlier obtained an indictment that stated that Menendez “went hunting for Nortefios with [ Gomez] and Mr. Motaandthat Mr. McIntosh was killed with Mr. Menendez’s gun. .. - The application ofjudicial estoppel is discretionar y. (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468). Because Gomez d id not requestat trial that the court exercise its discretionin this regard, he has forfeited this ar gument on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Williams (19 98) 61 Cal_App.4th 649, 655.) In any event, the trial court would surely not have granted such a request. The court has the discretion to imposethis remedy “ ° “when a party’s inconsistent behavior will otherwise result in a miscarriage ofjustice.” ” ” (Levin v. Ligon, supra, 140 Cal.App.4th at p. 1468.) The People did not eng age in inconsistent behavior. The indictment did notallege that Menendez was an a ccomplice as a matter of law. At best, it contains language that could support such an a rgument. The record contained ample evidence to the contrary and the trial court pro perly made its decision based onthis evidence. 2. Cervantes There waslittle evidence that Cervantes conspir ed with Varrio Frontero Loco to kill Nortefios or that he was otherwise involve d in any of the crimes committed by defendants. Cervantestestified that he gave M olina a tide home after he got outofjail and spoke to him about thekilling of an unn amed Nortefio. Althoughthere was evidence that Cervantes was a member of Mexic an Locos, there was no evidence that he sh ared Mota or Elizalde’s intentionto kill Nortefios in or derto increase the stature ofVarrio Frontero Loco in the community. Therefore, the trial court properly left to the jury the question of whether Cervantes was an accomplice. . 28 3. Valencia There wasalso a factual dispute about whether Valencia was an accomplice to the Perez murder. Menendeztestified that he did not think Valencia was even a gang member. Valencia testified that he was not a gang memberand only wentin the car with Azamarafter they encouraged himto do so. Valencia was aware that they had driven into Nortefio territory, but he had never seen anyonekilled before. In fact, he asked to be driven homeafter the murderrather than join in the bragging and celebration that followed. The fact that Valencia was present at the scene and did not prevent the Perez murderis insufficient to make him an accomplice. Moreover, even if there was evidence (and there was not) that he assisted Mota and Molinain the murder, this would not be sufficient for a finding that he was an accomplice. (Rodriguez, supra, 42 Cal.3dat p. 760.) Our review of the record reveals that the trial court did not have beforeit undisputed evidence that Valencia shared Gomez and Mota’s criminal purpose. (People v. Sully, supra, 53 Cal.3d at p. 1227.) Therefore, it was not required to instruct the jury that Valencia was an accomplice as a matterof law. 4. Ruelas ; Ruelas, like Elizalde, was not presentat any of the murders. In addition, there is no evidencein the record directly linking himto any of the crimes committed by defendants. His complicity in these crimes would, therefore, be as a co-conspirator. There was conflicting evidence about whether Ruelas had assumeda co- conspirator role in “bringing the hood back.” Ruelas appeared to be an important memberof Varrio Frontero Loco. Sanchez testified that, in terms of the hierarchy of Varrio Frontero Loco, Elizalde was the leader, and Sanchez was directly under hin along with Mota, Ruelas, and several others. According to Sanchez, Ruelas was one of the Varrio Frontero Loco who were “going to bring themback. . . just the ones who got to take care of everything.” Menendez also named a numberof Varrio Frontero Loco as those with the most respect in the gang. Ruelas was among them. Elizalde also would 29 send Ruelas out to collect debts using violence. Ruelastestified that violence was “an important part of bringing the hood back.” Ruelas himself testified that he was a memberofVarrio Frontero Loco forsix years until 2008. There was evidence, however, that Ruelas’s involvement in Varrio Frontero Loco was mostsignificant and committed before Elizalde assumed control. Ruelas did not like Elizalde. Although Elizalde had given him an orderto kill someone, Ruelas did not do so because he was working as an informant and had agreed notto participate in the commission of any crimes. Given the factual dispute about Ruelas’s accomplicestatus, the trial court did not err in putting the questionto the jury. 5. Prejudice Evenifthe trial court did err in putting the accomplice question to the jury, “[a] trial court’s failure to instruct on accomplice liability undersection 1111 is harmlessif there is sufficient corroborating evidence in the record. [Citation. ‘Corroborating evidence may beslight, may be entirely circumstantial, and neednotbe sufficient to establish every element of the charged offense. [Citations.]’ [Citation.] The evidenceis sufficient if it tends to connect the defendant with the crime in such a way asto satisfy the jury that the accompliceis telling the truth. [Citation.]” (People v. Lewis(2001) 26 Cal.4th 334, 370.) Wereject defendants’ argument that the witnesses’ testimony was insufficiently corroborated. First, with regard to Oscar Menendez, Menendeztestified that after he witnessed the McIntosh shooting, he did not wantto join in Mota and Gomez's celebration of the murder and asked them to take him home. Hetestified that when they arrived at his house, Mota told Menendez that he was onparole and couldn’t havethe gun. Motatold Menendez to take the gun. This testimony was corroborated by San Pablo Police Detective David Hoff, whotestified that he did in fact find the gun used in the McIntosh shooting in Menendez’s bedroom. Menendez’s description ofthe way in which McIntosh was approached wasalso corroborated. Menendez testified that when Mota spotted Rico McIntosh, Gomez asked him“if he is a buster.” McIntosh’s friend 30 Lorry Scherrertestified that McIntoshtold her after the shooting that he had been approached by three people who asked himifhe wasa “buster” before they shot him. San Pablo Police Officer Matthew Spanneralsotestified that McIntosh told him that he was asked if he was a “buster” before he was shot. The testimony of Hoff, Scherrer and Spannerprovide sufficient corroboration of Menendez’stestimony. Second, Victor Cervantestestified that when he picked Molina up fromjail, Molina told him that he had been released because he had been caught with agun that was not the murder weapon. Molina also told him,in effect, that he and Romero had murdered Centron. Molina’s telephonecalls to his mother in which he made the same admission adequately corroborate Cervantes’s testimony. Third, Luis Ruelas’s testimony that Molina told himthat he had killed Centron was corroborated by the same telephonecalls to his mother that corroborated Cervantes’s testimony. Finally, Valencia testified that when Camachogot outof the car he said to Luis Perez “Show me your hands, show me your hands.” When Perez yelled “[w]hat the fuck is going on?” Camacho immediately shot him. This was corroborated by a neighbor who heard the confrontation, Ganehin Saele. Saele testified that she heard someone say “what the fuck?” and then heard gunshots. E. Batson-Wheeler Mota contends that, in exercising a peremptory challenge against Juror Number5, the only African-American juror onthe panel, the prosecutor violated his right to atrial by a jury drawnfroma representative cross-section of the community, a right guaranteed under both the California Constitution (article I, section 16) and the Fourteenth Amendment of the United States Constitution. He is incorrect. 1. Factual Background Afterthe prosecutor exercised a peremptory challenge to Juror No. 5, defense counsel moved for a mistrial under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnsonv. California (2005) 545 U.S. 162 (Johnson). 31 Defense counseltold the court that Juror No. 5 would be the only African- American seated on the jury. According to counsel, this juror had “27 years of military experience. He did not indicate any biases, and I believe that he is being relieved because of his race.” The court asked the prosecutorto respond “to theissue of a prima facie showing.” The prosecutor offered the following response: “I do notbelieve there is any prima facie showing, and this is why: I worked extremely hard to rehabilitate ajuror named [Mr. P.]. [4] Mr. [P.] was actually seated next to [Juror No. 5] last week when he came into the box immediately in front of [Juror No. 5]. [{] Mr. [P.] was an African- American male about the same age as [Juror No.5], and I liked a lot of things about Mr. [P.], including his job along with his wife’s experience as an emergency room nurse. [{{] Unfortunately, as you mayrecall, I worked hard to rehabilitate him, and he said thatI had gotten him fromthe defense starting on the 30 yard line upto the 45. [©] He was close to not being for cause, but I didn’t do my job well enough, I suppose, and he ended up being a for cause challenge made by Mr. Morton and Ms. Bethards. [{]] That was an African-American juror that we lost, who[m] I was perfectly satisfied with. [{] Onthe other hand, I don’t believe I need to give my reasonsat this point, because you haven’t made a primafacie case, but I do think the fact that I worked hard to rehabilitate one African-American juror, was not able to do so, cuts directly against any argument that there is a prima facie case of discrimination based on race in the People’s peremptory challenge, or voir dire strategy.” Defendants argued that the People’s effort to rehabilitate an Afincan-American juror wasinsignificant in light of the fact that Juror No. 5 was a candidate who was “completely neutral.” The court ruled that defendants had failed to make a prima facie case. The court explained that, under the standard articulated in Johnson, supra, 545 US. 162," “I do "’ The court correctly summarized that standard as requiring an inquiry into ““whether the defendant has shownbased onthetotality of the relevant facts that those U2 bo not believe the facts as [a] totality before me would suggest that inference is appropriate. [{] I do understand . . . that a person of the African-American race is within a cognizable group, and I do know that the law . . . permits a finding of . . . a primafacie case on the basis of a single strike of that group. So it’s not a numericalissue, it’s the conductofthe voir dire as a whole.” The court also noted that “I do think that [Juror No. 5] is the first African-American who has been in the box for purposes of peremptories. [{] We have had other African-Americanpotential jurors, but they have been excused for cause or hardships. [{] The record would reflect that so far [Juror No. 5] is the only African- American in the box as I have indicated; that the defendants are of Hispanic descent, to the extent that may or maynot be relevant, but, in any event, I don’t find a primafacie case, but you maystate your reasonsfor the record.””® The prosecutor stated “for the record”that “there are a lot of good things about [Juror No. 5], including his military service. Unfortunately, the main part of his military service was serving as a substance abuse counselor. . . . [A]lmost as a general rule, I am not going to leave counselors or psychiatrists on a crimmaljury. [|] On top ofthat, I specifically questioned [Juror No. 5] about this, a substance abuse counselorinhis position worked with almost, I think he said, almost 90 percent of his work had been involved in criminal activity and had been accused or convicted for drug activity. Somebodythat works with felons or convicted misdemeanants or convicted felons on a daily basis is not someone I want on a criminaljury of any sort, no matter whatcolor, what creed, what race theyare.” The court then excused Juror No. 5. Defendants nowarguethatit erred in so doing. We disagree. facts give rise to an inference of discriminatory purpose or whetherthe evidence1s sufficient to perinit the trial judge to draw an inference that discrimmation has occurred.” 'S Although we concludethat, because the trial court correctly found that no prima facie case had been shown, the prosecutor’s explanation of his rationale for excluding Juror No. 5 is not relevant to the question of whetherthere a prima facie case has been made, we nevertheless include this informationin order to discuss that issue. 2. Discussion Weapply certain well-established principles in deciding this issue. “[T]he use of peremptory challenges by a prosecutorto strike prospective jurors on the basis of group membership violates the right of a criminal defendantto trial by a jury drawnfrom a representative cross-section of the community underarticle 1, section 16 of the California Constitution.” (People v. Alvarez (1996) 14 Cal.4th 155, 192: see also Wheeler, supra, 22 Cal.3d at p. 272.) This discriminatory use of peremptory challenges similarly violates the defendant's federal constitutional right to equal protection. (Batson, supra, 476 US. at pp. 84-89.) [{] We presumethe People use their preemptory challenges ma constitutional manner. (Wheeler, supra, 22 Cal.3d at p. 278; People v. Alvarez, supra, 14 Cal.4th at p. 193.) Forthis reason, the defendant bears the burdenofestablishing a prima facie case of purposeful discrimination. (People v. Arias (1996) 13 Cal.4th 92, 134-135; People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Alvarez, supra, 14 Cal.4that p- 193.) To do so, the defendant must raise this issue “ ‘ “in timely fashion and make a prima facie case of such discriminationto the satisfaction of the court. First, . . . he should make as complete a record of the circumstances asis feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, fromall the circumstancesof the case he must showa strong likelihood [or reasonable inference] that such personsare being challenged becauseoftheir group association... .”” [Citations.]” (People v. Box (2000) 23 Cal.4th 1153, 1187-1188, disapproved on another ground in People v. Martines (2010) 47 Cal4th 911, 948, fn. 10.) When we conclude thatthe trial court correctly ruled that a defendantfailed to show primafacie case ofpurposeful discrimination, we do not “review the adequacy of >> counsel’s justifications for the peremptory challenges.’ (People v. Box, supra, 23 Cal.4th at p. 1188.) The fact that a prosecutoris permitted to makea recordofhis justifications for exercising a peremptory challenge does not change this basic rule. (ibid) 34 Onappeal, we must determine whether substantial evidence supports thetrial court’s conclusion. (People v. McDermott (2002) 28 Cal4th 946, 970.) Becauseit does, wereject defendant’s argument. Here,the trial court found that defendant failed to make out a primafacie case of discriminatory intent. Substantial evidence supports the court’s conclusionthat the totality of the relevant facts did not “give rise to an inference of discriminatory purpose.” First, the fact that the People made an effort—and a vigorous oneat that—to rehabilitate another African-American juror points to the People’s lack of a “discriminatory purpose” in its exercise of a peremptory challenge to Juror No. 5. Simply put, if the prosecutor had such a purpose, we would not expect the prosecutor to make a case agains! excusing a different African-American juror. The People also point out that the prosecutor earlier passed on a jury that actually contained Juror No. 5. The prosecutordid not actually exercise a peremptory challenge against Juror No. 5 until ajuror onthe original panel hadto be excused andjury selection resumed. Although more than one inference can be drawn from the fact that the prosecutorhad earlier passed on Juror No. 5 and did not excuse him until jury selection was reopened, one reasonable inference—andthe inference the trial court made—isthat the prosecutor was not concerned with the race ofjurors inhis selection decisions. Substantial evidence, therefore, supports the trial court’s finding that defense failed to make out a prima facie case of discriminatoryjury selection. ”? Defendants, however, argue that, when we take into account the prosecutor’s “for the record” explanationfor his prima facie challenge, an explanation the trial court *? Defendants correctly argue that their burden of making out a prima facie case can be met even as to a single peremptory challenge to an African-American juror. (People v. Thomas (2011) 51 Cal.4th 449, 474.) However, although the People argue to the contrary,the trial court did notbase its conclusion that no prima facie case was shown on the fact that the prosecutor only excused one African-American juror. In any event, our review ofthe record indicates that substantial evidence supports the trial court’s conclusion. w o ‘ A correctly observed was irrelevantto its determination of whether defendant had made out a prima facie, we must find that the trial court erred. We disagree. A trial court does not scrutinize a prosecutor’s explanation for his exercise of a peremptory challenge until affer it concludes that the defendant has made out a pnma facie case of discrimination. Thetrial court’s prima facie ruling here was explicitly—and correctly—not based onthe prosecutor’s stated rationale, which cameafter the court madeits ruling. We do not consider such astatement when we ask whether substantial evidence supports the court’s ruling on the question ofwhether defendants had mettheir prima facie burden. (People v. Box, supra, 23 CalAthat p. 1188, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10; People v. Davenport (1995) 11 Cal4th 1171, 1200, abrogated on other grounds in People ¥. Griffin (2004) 33 Cal4th 536, 555, fn. 5.) Thus, while we consider the “entire record of voir dire” in our review (People v. Box, supra, 23 Cal.4th at p. 1188), once we “ ‘conclude[] that the trial court properly determimed that no prima facie case was made,[we] neednot review the adequacy of counsel’s justifications for the peremptory challenges.’ [Citation.]” (Jbid.) The cases on which defendants rely in making the contrary argument involve situations in whichthe trial ‘court had either explicitly or mmplicitly found that the defendant had made a primafacie case. These inapposite cases, therefore, are not helpful to defendants. In Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351, 360, the court implicitly found that defense counsel had made out a primafacie case of discrimination and was, therefore, concerned with the ultimate question of whether the lower court erred in finding that the prosecutor had not exercised his peremptory challenges in a discriminatory way. Similarly, in Crittenden v. Ayers (2010) 624 F.3d 943, 950 (Crittenden), the court registered its agreement with the California Supreme Court’s earlier decision in the matter that “Crittenden made a prima facie showing of discrimination and that the state carried its burden ofarticulating a race-neutral justification for the peremptory strike.” Crittenden, therefore, does not support defendants’ argument regarding the trial court’s analysis of the record at the prima facie 36 stage. Finally, in Johnson v. Vasquez (9th Cir. 1993) 3 F.3d 1327, 1329, footnote 2 (Vasquez), the court announcedthat it “need not address the question whether Johnson offered prima facie evidence of intentional discrimination [citation], because the prosecutor offered an explanationfor the challenge, and the trial court ruled onthe ultimate question of discrimination. [Citation.]” The Vasquez court, therefore, did not analyze the issue ofwhether the defendant had made out a prima facie case because the trial court had impliedly ruled that a primafacie case had been shown. Given that the defendant had met his burden, the court of appeal looked only at the “ultimate question of discrimination,” an inquiry that does involve scrutiny of the prosecutor’s explanation for his challenge. Here, in contrast to Kesser, Crittenden, and Vasquez, the trial court explicitly ruled that defendants had not met their burden of showing aprima facie case, and correctly did not consider the prosecutor's explanationfor his peremptory challenge.*’ Therefore, when we considerthis issue, we look only at the record before the trial court at the timeit madeits prima facie case ruling. F. Corroboration ofSanchez Testimony Mota also argues that Sanchez—whomthetrial court found was an accomplice as a matter of law—wasnot adequately corroborated as required by section 1111 and, therefore, the jury could not haverelied onit to reach its verdicts. We disagree. Withregard to the Centron murder, Sanchez’s testimony regarding Molina’srole as the shooter was confirmed by Molina’s admission to his motherthat he had, in fact, shot Centron. Sanchez’s testimony regarding the McIntosh murder to the effect that Mota told him he had shot someonethat night, was corroborated by the testimony of Detective David Hoffthat he had found the gun Gomez used in the shooting in Menendez’s bedroom. In addition, Contra Costa County Deputy Sheriff Criminalist Terreance Wong’s expert testimonythat the gun recovered from Menendez’s bedroom 2 oo . °° The prosecutor’s decision to put these reasons“on the record,” following the trial court’s decision regarding the prima facie case issue does notalter this procedure. was the weapon used to shoot McIntosh corroborated Sanchez’s testimony regarding the shooting. Moreover, evenif Sanchez’s testimony was not admissible, our review ofthe record indicates that there was ample evidence, particularly fromthe testimony of Menendez, Ruelas, Cervantes and Valencia to support defendants’ convictions. G. Admissibility ofMota’s Booking Statements Regarding Gang Membership 1. Facts On May3, 2008, after he was arrested, Motawas taken to the Contra Costa County’s Martinez detention facility. When an arrestee such as Motafirst arrivesat the detentionfacility, an “escort deputy” meets him and asks three questions. “They will ask them if they have been here before. That will aid the bookingofficer in bringing up their information. [€] They will ask them if they have any gang affiliations so that they know . .. where to put them once they come inside of intake. [§] And then they will ask themif they have any fears for their safety.” If a suspect reports any fear for his safety. requests protective custody or if they belong to a gang “they will go into one of the rooms to await... . the processing... .” Contra Costa County Sheriff's Deputy Michael Rector and Deputy Gonzalez,” were the “back door intake” deputies that evening and the first deputies Mota encountered whenhearrived atthe detention facility. Uponhis arrival, Mota was put ina separate room. WhenRectortold Mota he was going to search him for contraband, Mota “began to laugh nervously.” Mota then said, “man, I’min here for someshit that I didn’t do. Theysaid that I killed someone,but it wasn’t me. I was there, but I didn’t kill anyone. The guy that did it is already injail. He confessedalready, but nowheis trying to bring me downtoo... .” Mota becameagitated andsaid, “I’m a gang banger, but I’m not a murderer.” Hethen told Rectorthat “I told those othercops that I didn’t know anything because I thought I would be in trouble, but now I don’t care... .” Rector asked Mota if he wantedto talk to a San Pablo Police detective. Mota replied, “Yeah,I *! Deputy Gonzalezdid nottestify. { 2 o o will, but first I should talk to my lawyer. After I talk to himI will tell you guys what really went down... .” Rector did not ask Mota about his gangaffiliation. He did, however, understand that Mota was involved in a gang, based on earlier statements Mota had made to Deputy Gonzalez, who was working alongside him that evening. Mota’s statements struck Rector as important to the San Pablo Police Department, so he wrote up a summary of the conversation in order to “assist them in their case.” Following Rector and Gonzalez’s interaction with Mota, Deputy Bryan Zaiser, who workedinthe facility’s classification unit, interviewed Mota. He did so because Mota appeared to be gangaffiliated. Zaiser would typically tell the arrestee that the classification questions were for an “administrative purpose,” and “for their housing.” Prior to the interview, Zaiser did not read Miranda warnings to Mota, did not advise him that he had a right to decline to answerthe questionsnordid he tell him he was required to answerthe questions. Mota did not express any fear for bis safety before the interview. Zaiserfilled out a classification questionnaire when he spoke to Mota. Zaiser indicated on the questionnaire that Mota identified himself as “affiliated with the Surefo street gang,”and said he was “part of VFL, which is Varrio Frontero Loco,” and had been since he was 14 years old. According to Zaiser, Mota told him that he (Mota) was an active Surefio gang member. At the time he interviewed him, Zaiser was aware that Mota had been charged with murder.”’ He did not know that Mota had beenaccusedofkilling a “suspected Nottefio.” *? Generally, whenan arrestee identified himself as a gang member, the deputy would write a “classification incident detail report,” which would then be forwarded to a supervisor, who would forward the report to “the appropriate people.” *3 Tt was commonfor the arresting agency(in this case, the San Pablo Police to bring with them “booking paperwork with the charges they are booking the inmatefor.” S a ‘ © Zaisertestified that, because of the risk of harmto an inmate suspected ofkilling a Nortefio, he would not house that inmate in the general population, where Nortefios were housed. There was separate housing for Surerios. Eachofthe murdercharges against Motaalleged an enhancementfor participating in a criminalstreet gang pursuant to section 186.22, subdivision (b)(1). He was also charged under section 182.5 with participating in a criminal street gang. Before trial, Mota movedto suppress his admission of gang membership. He argued that because the sheriff’s deputies to whom he disclosed his gang affiliation knew or should reasonably have known that the questions about his gang affiliation were likely to elicit an incriminating response, they were required to give Miranda warnings before questioning him. The People contended that because none of the sheriff's deputies who discussed with Mota his gang status were actually aware that he had been charged with gang-related crimes, the questions he was asked were part of a custodial interrogation for which no Miranda warnings were required. In adinitting this evidence, the court made a numberof factual findings. First, it found that “the sole purposeofthis interview and the formis to ensure the safety of inmates and staff at the countyjail. The information gathered is essential to maintain security at the jail... . [€] . . . [I]f the jail were to house rival gang memberstogetherat randomit would pose a grave security risk to both the inmates and the staff. [{]] So I find that it is a fundamental andessential obligation of the sheriff’s department to determine whetherit is dangerous to house any inmate with any other inmate or any gang member with any rival gang member.” Thetrial court stressed that although Zaiser knew that Mota had been charged with murder, Zaiser was not aware of the gang enhancement and gang charges alleged against Mota. The court found, therefore, that Zaiser “had no actual subjective intent to gather incriminating information.” The courtalso noted that Zaiser’s subjective imtent was “not the standard butit is a relevant factor.” AO Zaiserdid not, in the court’s opinion,“use any coercive tactics, that 1s, no threats, no promises. There was no threat that if... Mr. Mota didn’t answer thequestions, that he would be housed with Nortefios.” With regard to Mota’s understanding of the purpose of these questions, the court found “that Mr. Mota would have every reason to make sure that the deputies knew to house him with Surefios. It would be in Mr. Mota’s wholly personalinterest in self-preservationthat he be classified correctly. And it would be extreme dangerto his life if he were not classified correctly and housed with other Surefios. [{] So my view is that Mr. Mota would have wanted the deputies to know that he was a Surefio so his life would not be mperiled. And I believe he willingly and voluntarily answered the questions for that reason.” The court denied the motion to dismiss and Mota’s admission ofgang membership was admitted at trial. The jury ultimately found Mota guilty of the street gang conspiracy charge and also found the street gang enhancementstrue asto the three charged homicides of which he was found guilty. 2. Discussion Mota contendsthat the trial court erred in denying his motion to suppress the statements he made duringhis classification interview. He argues that this interview constituted a custodial interrogation and, therefore, the law enforcement personnel he spoke with were required to read him his Miranda rights. Weagree. In Rhode Island v. Innis (1980) 446 U.S. 291 Unnis), the United States Supreme Court clarified what sort of police action constitutes a “custodial interrogation” that must be preceded by a Miranda warning. The Jnmis court held that “ ‘mterrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonablylikely to elicit an incriminating response from the suspect.” (Innis, supra, 446 U'S. at p. 301.) Accordingly, “[a] practice that the police *4 The court also noted that “{t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect i custody 4} should know is reasonablylikely to evoke an incriminating response froma suspect . . . amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their wordsoractions, the definition of interrogation can extend only to words oractions onthe part of police officers that they should have known were reasonablylikely to elicit an incriminating response.” (/nnis, supra, 446 U.S.at pp. 301- 302.) Tenyears later, in Pennsylvania v. Muniz (1990) 496 US. 582, 600-602 (Muniz), the court considered whether the Miranda safeguards came into play when a police officer asked a suspect in custody for—among other things—his “name, address, height, weight, eye color, date of birth, and current age... .” 2s In considering this question, the court began with the general rule set out in Janis, that “[c]ustodial interrogation for purposes of Miranda includes both express questioning and words oractionsthat, giventhe officer's knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to “have . . . the force of a question on the accused,’ [citation] and therefore be reasonably likely to elicit an incriminating response.” The court then concluded that questioning a suspect about his name, address, height weight, eye colordate of birth and current age fell “within a ‘routine booking question’ exception” to Miranda, an exceptionthat applies to questions asked in order to secure the “ ‘ “biographical data necessary to complete booking or pretrial services.” ’”” In reaching this conclusion, the court relied on the lower court’s with an added measure ofprotection against coercive police practices, without regard to objective proofof the underlying intentof the police.” (Innis, supra, 446 U.S.at p. 301.) 2° Although the United States Supreme Court consideredthis issue forthe first time in Muniz, it noted that a numberoffederal courts had previously found that “routine biographical questions” fell outside the scope of Miranda. These cases were United States v. Glen-Archila (1th Cir. 1982) 677 F.2d 809, 815-816 (home address), United States v. Avery(6th Cir. 1983) 717 F.2d 1020, 1024-1025 (“subjects such as defendant’s date of birth and address” in order to complete an identification form which“did not relate, even tangentially, to criminal activity”) and United States v. Mata-Abundiz (9th Cir. 1983) 717 F.2d 1277 (background questions not asked during routine booking procedure and directly related to an element ofcrimethe interrogating officer suspected of defendant did not fall within routine booking exception). 42 factual finding that these questions “were ‘requested for record-keeping purposesonly,’ [citation] and therefore the questions appear reasonably related to the police’s administrative concerms.” (Muniz, supra, 496 U.S. at pp. 601-602.) Evenbefore the United States Supreme Court decided Muniz, our Supreme Court, in People v. Rucker (1980) 26 Cal.3d 368, 387 (Rucker), held that “(t]he Miranda safeguards are not necessary at a proper booking interview at whichcertain basic informationts elicited having nothing to do with the circumstances surrounding any offense with which the defendant has been charged. [Citations.] The booking procedure, as defined by statute (Pen. Code, § 7, subd. 21), has been described as ‘essentially a clerical process.’ [Citation.] The limited information needed at a booking procedure is required solely for the purposes of mternal jail administration, not for use in connection with any criminal proceeding against the arrestee. When use of this information is confined to those proper purposes,its elicitation cannot be considered incriminatory.” The Rucker court went on to hold, however, that although Miranda warnings “need not be given at a booking interrogation” intendedto elicit “from an arrestee the basic, neutral informationthat is necessary for proper jail administration, [the state is forbiddento use] the arrestee’s responses in any mannerin a subsequent criminal proceeding.”** The court explained that “[i]t is not just the nature of the information revealed but the potential for incrimination underall the circumstancesthat is important. 5 hb,In the present case, appellant had been arrested for a homicide. Homucide is “an area permeated with criminalstatutes,” ’ and those arrested for murderare, for purposes of the privilege, ‘a group “inherently suspect of criminal activities.” ’ [Citation.] . .. Evidence of an arrestee’s responses to booking questions can constitute ‘evidence whichwill facilitate [his] conviction[ ]’ unlessits use is limited to the purposes for which it was — °° Similarly, the court in United States v. Willock (D.Md.2010) 682 F.Supp.2d 512, 528-529, observed that “[e]liciting information from an inmate about his gang affiliation solely for prison administrative purposes does not mmplicate Miranda.It is only when such information is used against the inmate in a prosecution that Miranda warnings are required.” (/d. at p. 533, fn. 26.) elicited. [Citation.]” (Rucker, supra, 26 Cal.3d at p. 389.) Although Rucker appears to have been superseded by Proposition 8 (People v. Herbst (1986) 186 Cal.App.3d 793, 799-800), the Rucker court’s definition of a routine “booking procedure”is consistent with that articulated in Muniz—a procedure designed to elicit “basic, neutral information.” (Rucker, supra, 26 Cal.3d at pp. 388-389.) Our Supreme Court very recently considered the booking exception in Peoplev. Williams (2013) 56 Cal.4th 165 (Williams). In that case, a suspect in custody told a police officer during his intake interviewthat he neededprotection because an unidentified inmate had threatened to stab him. (/d. at p. 183.) Whenoneofthe officers asked why he had beenthreatened, defendant responded “ ‘[b]ecause I killed two Hispanics.’ ” (/d. at p. 184.) Another officerrecalled asking defendant what his crime was. The officer noted defendant’s statement that he had killed two Hispanics in an interview intake report that he did not provide to any investigating agency. (Jd. at p. 184.) The statement was ultimately used at tral against the defendant. The Williams court held that defendant's un-Mirandized admission that he had “killed two Hispanics”fell under the booking exception to Miranda. In so doing, the court cited the Zmnis court's definition of interrogation: “ ‘[T]he term “mterrogation” under Miranda refers not only to express questioning, but also to any words oractions on the part of the police (other than those normally attendantto arrest and custody) that the police should knoware reasonably likely to elicit an incriminating response from the suspect... . [T]he Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, withoutregard to objective proof of the underlying intent of the police. ... [S]ince the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to wordsoractions on the part of police officers that they should have known were reasonablylikelyto elicit an incriminating response.’ ” (Innis, supra, 446 U.S.at pp. 301-302, fis. omitted.).”) (Williams, supra, 56 Cal.4th at pp. 186- 187.) | Ad The court, citing People v. Gomez (2011) 192 Cal.App.4th 609, 630, then noted that the “governing considerations” in determining whetherquestions fall within the booking exceptionare as follows: “’ In determining whether a question is within the booking question exception, courts should carefully scrutinize the facts surrounding the encounter to determine whether the questions are legitimate booking questions ora pretext for eliciting incriminating information. [Citation.] Courts have considered several factors, including the nature ofthe questions, such as whetherthey seek merely identifying data necessary for booking [citations]; the context ofthe interrogation, such as whether the questions were asked during a noninvestigative clerical booking process and pursuant to a standard booking formor questionnaire [citations]: the knowledge and intent of the government agent asking the questions [citations]; the relationship between the question asked and the crime the defendant was suspected of committing [citations]; the administrative need for the information sought [citations]; and any other mdications that the questions were designed, at least in part, to elicit incriminating evidence and merely asked underthe guise or pretext of seeking routine biographical information [citations]. [Citation.]” (Williams, supra, 56 Cal.4th at p. 187.) _ The Williams court concluded that Williams’ “intake interview at FolsomPrison was closely analogous to the process of being booked into jail.” The court pointedout that not only did the officers have no intentionof eliciting an incrimimating response, but the follow up questions they asked were not ones they should reasonably have expected to elicit an incriminating response. The court explained: “Whether it was White or Reed whoasked defendant either ‘why are they going to stab you?’ (as White remembered), or ‘whathis crime was’ (as Reed recalled), neither question was designedto elicit an incriminating response.” The officers were appropriately responding to defendant'sown security concern, and would not reasonably have expected him to produce a confession. (Williams, supra, 56 Cal.4th at p. 188.) Turning nowto this case, we begin by noting that the trial court found that although the deputies were aware that Mota had been charged with murder, they were not specifically aware that, in addition to murder, Mota had been charged with an AS enhancementand an additional crimebased on his gang membership. Therefore, they did not ask Motathis question in orderto elicit an incriminating response. However,as the trial court recognized, whethera particular question was intentionally designed by the police to evoke anincriminating response is only one fact the court looksat in _determining whether wordsor actions on the part of a police officer constitute an interrogation. Innis, Muniz and Williamsall make clear that an officer’s subjective intent in asking a question is neither the only fact nor the determinative fact the court should consider in determining whether a question falls within the booking exception. Therefore, evenif a question was not intended to evoke an incriminating response,ifit was a questionthe officer should have reasonably expected to evoke such a responseit would fall outside the booking exception. Here, the deputy who asked Mota whether he belonged to a gang “should [have] know[n]” that question was “reasonablylikelyto elicit an incriminating response . ...” (Muniz, supra, 496 US. at p. 601.) Section 186.22, which imposes criminal penalties for participation in a criminalstreet gang,is part of the California Street Terrorism Enforcement and Prevention Act enacted in 1988. This enhancement had beenin existence for more than 20 years before Mota was questioned, andit is unlikely that the deputy was unawarethat participation in a criminal street gangis a felony orthat an affirmative answerto the question would be incriminating. Similarly, section 182.5, which imposes an additional penalty for conspiracy to comunit a felony by active participants in a criminal street gang, was added by section 3 of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which was effective on March8, 2000. In light of the length oftime these laws had been on the books, a law enforcement professional should have knownthat an incoming inmate’s admission of gang membership could well be incriminating. It was also unlikely that the deputy would be unawareofthe possibility that Mota might be a gang member andthus particularly likely to give an incriminating response to this question. The trial court foundthatthis facility housed a large population of gang members, so many that they created a serious and real risk to the safety of inmates in 46 rival gangs as well as to the deputies themselves. A law enforcementofficial working in this milieu would not only be particularly likely to be aware of laws designed to deter suchviolence, he would also be aware that many immates coming into the facility might belong to gangs. In such a setting, the possibility that an inmate’s gangaffiliation might be incriminating was neither abstract nor remote. Therefore, the deputies should have knownthat asking for this information was reasonablylikely to elicit an incriminating response from Mota. And,of course,it did.”’ Nordid this question seek “routine biographical information”that would fall within the booking exception to Miranda. The nature ofthe information for which this exception is intended to apply is aptly demonstrated by the cases the Muniz plurality recognized as establishing this exception and by Muniz itself. The pre-A/uniz cases cited by that court involve questions designed to gather “mere pedigree information” or “routine background information.” (United States v. Avery, supra, 717 F.2d at pp. 1024- 1025 [subjects such as defendant’s date of birth and address” mm order to complete the identification form which“did not relate, even tangentially, to criminal activity”); United States v. Mata-Abundiz, supra, 717 F.2d 1277 [background questions, which were not asked during routine booking procedure, were directly related to an elementof crime the interrogating officer suspected of defendant did notfall within routine booking exception]; United States v. Glen-Archila, supra, 677 F.2d at pp. 815-816 (11th Cir. 1982) [home address]; see also United States ex rel. Hines v. LaVallee (2nd Cir. 1975) 521 F.2d 1109, 1112-1113 [length of marnage and numberof childrendisclosed to officer in casual conversation was “merely basic identification”; United States v. Burns (2nd Cir. 1982) 684 F.2d 1066, 1075 -1076 (Burns).) [“appellant’s history of drug use, *7 In a similar case, United States v. Williams (D.D.C. 2012) 878 F.Supp.2d 190, 210, the court found that a question that related “directly to [the defendant’s] connection with evidence of criminal activity” did not fall within the booking exception, evenif “the police may not have beenfully aware” of the criminal activity ofwhich the defendant was suspected. 47 past record, and personalfinances, cannot be characterized as mere pedigree” where they “could be incriminatingat trial”’].) Muniz, like the federal cases that preceded it, recognized a booking exceptionfor the sort of informationthat is, except in unusual circumstances, not reasonably likely to elicit an incriminating response. One’s name, address, date of birth, length of marriage, number of children seldom relate “even tangentially to a crime.” Nor would they generally be expected to incriminate a defendant. Here, in contrast, the fact that a suspect in custody is a memberofa gang often carries with it penal consequences. This information cannot be characterized as “mere pedigree” such as a name, address, or birthdate. (Burns, supra, 684 F.2d at p. 1076.) It “could be [and was] incriminating attrial” (ibid.) and, as such, is not routine background informationof the sort that has been considered outside the Miranda safeguards. Norisit the case that a question falls within the booking exception simply becauseit is routinely asked during the booking process. As the court noted in United States v. Williams, supra, | 878 FSupp.2d at page 210, “the mere timing of the question ts insufficient to makeit a legitimate booking question.” Noris it the case that the characterizationofthis question as “administrative” makes it a routine booking question. As the court in Williams observed, “asking Maurice Williams how hehrad arrived at the police stationfalls outside the routine identifying questions contemplated by the booking question exception. His mode oftransportation onthat particular day is not a personal identifying characteristic, nor was his answer necessaryto serve a required property seizure receipt.” United States v. Washington (9th Cir. 2006) 462 F.3d 1124 (Washington) does not hold, as the People suggest, that the gathering of gang identification information falls outside the scope of Miranda underthe routine booking exception. Although Washington involved a booking procedure in which that information was requested, the challenged evidence was not a defendant’s self-identification as a gang-member. Rather, the court considered a question that asked defendantfor his “gang moniker,” or nickname. The court ruled that this question fell within the routine booking exception because “[q]uestions about a person’s identity are not unconstitutional evenif 48 identification ofthe person may help lead to the prosecution of that person for a crime.” (Id. at p. 1133.) Therefore, the court rejected defendant’s contention that his nickname should be suppressed, ruling that such a request “is no different from simply asking for a suspect’s name.” (/bid.) The question asked Mota was not comparable to the identifying questions the Washington court ruled did not constitute interrogation. Mota wasnot being asked to reveal his name when he was asked whetherhe belonged to a gang. And certainly the fact of gang membershipis not “routine” identifying information. Therefore, Washingtonis ofno assistance to the People. The People also point out that in People v. Gomez, supra, 192 Cal.App.4th 609, the Fourth District ruled that questions regarding gang affiliation during a booking interview fell within the routine booking exception to Miranda because they were not designed to elicit an incriminating response. The Gomez court appearsto havebasedits conclusion on a footnote in Muniz, in which the court agreed with amicus United States that “ ‘[rJecognizing a “booking exception” to Miranda does not mean,of course,that any question asked during the bookingprocess falls within that exception. Without obtaining a waiver of the suspect’s Miranda rights, the police may not ask questions, even during booking, that are designedto elicit incriminatory admissions.’ ” (Muniz, supra,A96 U.S. at p. 602, fn. 14.) Muniz, however, does not hold that the only type of question asked during booking that falls outside the routine booking exception is one whichis “ ‘designedto elicit incriminatory admissions.’ ” (Muniz, supra, 496 US.at p. 602, fn. 14.) Werethis the case, the court’s language regarding questions the police “should know” might elicit an incriminating response would be meaningless, given that something anofficer“should know”is something he did not, in fact, subjectively know. (/d. at p. 601.) The Gomez court recognizes that often an officer’s subjective intent is quite relevant to this issue. Indeed, it is determinative in those situations in which the officer clearly designed the question with aninterrogative intent. But even if an officer does not intend to elicit an incriminating response, andhas not designed the question to do so, a question canstill 49 constitute interrogation subject to the Miranda protections if the officer should have known this question was reasonably likely to elicit an incriminating response. When answering this question, Mota had two choices. He could either admit to gang membership and incriminate himself or he could lie or refuse to answer the question and risk physical injury when he was housed with Nortefio inmates.”* We knowofno other case involving the routine booking exception where the defendant was asked to choose betweenincriminating himself or risking serious physical injury. The price of protecting oneself from harm while in custody should not be incriminating oneself. This is not to say the question cannot or should not be asked. Wefully expect the police to continue to use it upon booking in orderto protect jail personnel and inmates from harm. We hold only that the answer to this question may not be used against the defendantat trial, as it was here, in the absence of Miranda warnings. 3. Prejudice Thetrial cowrt’s errorin admitting this testimony was, however, harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, because Mota’s gang membership was convincingly established by many other sources. Ruelas, Sanchez and Menendezall testified that, based on their familiarity with Mota as fellow gang members and/or friends, Mota was a memberof Varrio Frontero Loco. In addition, San Pablo Police Officer Robert Brady, whotestified as an expert om Nortefio and Surefio criminal street gangs, opined that Mota was a gang member. He did so based on information he had received from other gang members. He also based his opinion on a *’ Thetrial court specifically found that “[t]here was no threat that if... Mr. Mota didn’t answer the questions, that he would be housed with Nortefios.” But there was no need to makethis threat. It was a fact that if Mota did not answer this question he would be housed with Nortefios. As the court found, “Mr. Mota would have every reason to make sure that the deputies knewto house him with Surefios. It would be im Mr. Mota’s wholly personal interest in self-preservation that he be classified correctly. And it would be extreme dangerto his life if he were not classified correctly and housed with other Surefios. [€] So my viewis that Mr. Mota would have wanted the deputies to knowthat he was a Sureiio so his life would not be imperiled. And believe he willingly and voluntarily answered the questions forthat reason.” 50 2005 robbery Mota had committed in Willows in which Mota wore a blue bandana(the Surefio color). When he was committed to county jail following his arrest forthis robbery, he was observed “throwing up” a hand signthat signified his Surefio status. Finally, in photographs taken of Mota at Victor Valencia’s funeral, Mota made similar gang signs. Because Mota’s gangaffiliation was amply established by evidence other than the statements made by himduring booking, any error is harmless beyond a reasonable doubt. H. Unijoined Perpetrators ofSame Crime Defendants argue that the trial court erred in giving the jury CALJIC No. 2.11.5. The instructionis as follows: “There has been evidence inthis case indicating that a person other than a defendant was or may have been involved in the crime for whichthat defendantis on trial. [§]] There may be many reasons whythat person is not here ontrial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether[he] [she] has been or will be prosectited. Your sole duty is to decide whether the People have proved the guilt of the defendant ontrial.” The use note to this instructionstates: “Do not use this mstructionifthe other person is a witness foreither the prosecution or the defense.” Defendants argue thatthis instruction permitted the jury, when evaluating the credibility of the five informant witnesses, to ignore the fact that they wereall given deals of one kind or another. The issue of whether it waserror to give this instruction in a trial in which unjoined coperpetrators testified was addressed most recently in People y. Fonseca (2003) 105 CalApp.4th 543 (Fonseca). In that case, the trial court gave the 1996 version of CALJIC No.2.11.5” The court held thatthis iteration of the instruction removed any ?° The Fonseca court noted that the cases finding it was error to give this instruction in a trial in which an unjoined coperpetratortestified involved earlier versions of CALJIC No. 2.11.5. (Fonseca, supra, 105 Cal.App.4that p. 548.) In addition, the Fonseca court noted that even when there was a finding oferror as to the earlier version of CALJIC NO. 2.11.5, “in every case where the jury receives all otherwise appropriate general instructions regarding witness credibility, there can be no prejudice fromjury 51 “lingering possibility that a reasonable juror would misunderstandhis or her duty to consider all relevant factors bearing on witness credibility. Therefore, we hold that CALJIC No. 2.11.5, in its 1996 version, is not erroneous when given ina trial where an unjoined coperpetrator testifies.” (Fonseca, supra, 105 Cal.App.4th at p. 550.) Thetrial court in this case gave the 2004 version ofCALJIC No. 2.11.5, which wasrevised to incorporate the Fonseca court’s suggestion that the “the 1996 instruction would get closer to the heart of the matterif, instead of the italicized words”! the phrases ‘speculate upon’ or‘guess at,” or words to that effect were substituted.” The jury inthis case, therefore, was instructed with a version of CALJIC No. 2.11.5 that would not suggest to ajuror that he no longer had a “duty to considerall relevant factors bearing on witness credibility.” (Fonseca, supra, 10S Cal.App.4th at p. 550.) We agree withthe Fonseca court’s reasoning regarding this instruction and, therefore, reject defendants’ argument thatthe trial court erred in givingit. L Post-Crime Jail Incidents Used to Establish Gang Membership Several weeks after he was incarcerated, and about a month after the last charged homicide, Mota was involved in an incident in which he and Luii Hernandez attacked Jorge Sanchez, one of the informants inthis case, shortly before the end of “free time” in the Q module, where Surefios are housed. Afterthe fight, Sanchez was separated from instruction pursuant to CALJIC No. 2.11.5. In other words, the potentially prejudicial effect of this instruction in the context of the testifying unjoied coperpetratorlies not in the instruction itself, but in the rather remote possibility that the trial court would fail to give otherwise pertinent and required instructions on the issue of witness credibility. (§ 1127; see also CJER Mandatory Criminal Jury Instructions Handbook (CJER, 11th ed. 2002) §§ 2.4, 2.96, pp. 13, 76.) There is no error in giving CALJIC No. 2.11.5 so long as a reasonable juror, considering the whole of his or her charge, would understandthat evidence of criminal activity by a witness not being prosecuted in the currenttrial should be considered in assessing the witness's credibility. [Citation.]” (Fonseca, supra, 105 Cal.App.4that pp. 549-550.) Defendant does not arguethat the trial court failed to give these “otherwise pertinent and required instructions on the issue of witness credibility.” *° The italicized words to which the court referred were that the jury not “discuss” or “give any consideration” as to whythe unjoined coperpetrator was not being prosecutedinthetrial. (Fonseca, supra, 105 Cal_App.4that p. 548.) 52 Mota and Hernandez andnot“let out” with the Surefios again. Eventually, Sanchez reached a deal with the prosecutor and entered a witness protection program. Defense counsel sought to have evidence ofthis fight excluded. The prosecution argued that the evidence was admissible to show Mota acted “in concert with other gang members to accomplishcertain goals.” Thetrial court ultimately admitted evidence of the fight between Sanchez, Mota and Hernandez. It found that the May 24 incident was “relevant to Mr. Mota’s gang membership, his conduct and participation in these crimes on behalf of the gang. Soit’s relevant to gang membership and motive and intentfor the charged crimes.” He explained that “[Evidence Code section] 1101(b) would permit admissionofthis .. . because it’s proof of motive and intent.” In addition,“the fact that it’s one month later [than the last homicide committed before Mota’s arrest] in my view wasnot so remote to makeit irrelevant.” Jorge Sanchez testified about the fight.” According to Sanchez, after he was arrested, he was placed in the Q module, where Surefios were housed. During free time, Mota and Hernandez approached him. Motahit him in the head and Sanchez fought back. The deputy maced them and Sanchez got on the floor whenthe deputy told humto. Mota did not. Instead, he got on top of Sanchez, who fought back again. Afterthis incident, Mota was “rolled up to B module.” He explained that this occurred“just so you ain’t no good no more.” Sheriff's Deputy Jesus Garciatestified that on May 24, 2008, he was assigned to the Q Module at the Martinez Detention facility. Mota, Hemandez and Sanchez werelet out with the other Surefios on the Q Module. Although the Q Module housed“a variety 3! The court ruled that an admission Mota made after the attack to the effect that he had “done the beatings and that he wasstill down on Surefios mthe sense that he could still be housed with Surefios ” was not admissible because it was not preceded with Miranda warnings. *? Sanchez testified without objection before the court’s ruling onthis issue. Any claim of error with regard to the admission ofhis testimony has, therefore, been waived. In anticipation of an ineffective assistance of counsel argument, we nevertheless consider whether Sanchez’s testimony, which was similarto that ofDeputy Garcia, was admissible. of administrative segregation inmates as well as protective custody inmates,” Surefios were let out “alone by themselves.” Mota contendsthat evidence that he and another Surefio gang memberattacked a Surefio informant while they were in jail was notrelevant to the issue of whether he was anactive participant in a criminal street gang at the time the crimesin this case were committed because Mota could have joined the Surefios gang after he arrived in prison and as a matter of self-preservation or camaraderie. He further argues that the admission of this evidence was not permitted undereither section 186.22 orthe street gang enhancement because evidence of post-crime activities cannot be used to show a violation of that statute. Finally, he argues that the admission of this evidenceviolated Evidence Code section 1101, subdivision (b), because it was used solely to show his bad character. We disagree. “We applythe deferential abuse ofdiscretion standard whenreviewinga trial court’s ruling on arelevance objection.” (People v. Kipp (2001) 26 Cal.4th 1100, 1123.) “ ‘Evidenceis relevant if it has any tendency in reason to prove or disprove a disputed fact at issue.’ [Citations.]” (/d. at p. 1123.) Evidence of Mota’s participation with another Surefio in an attack on a “snitch” was relevant to the issue of whether he was a gang memberat the time the murders were committed. The fact that he acted in concert with another gang memberwasalsorelevant to the issue of whether in committing the charged crimes he intended to “willfully promote[], further[], or assist[] in anyfelonious criminal conduct by membersofthat gang... .” (§ 186.22, subd. (a).) The jury could reasonably infer from his behavior that both were, infact, the case.” Motacites People v. Duran (2002) 97 Cal.App.4th 1448 (Duran) and Peoplev. Godinez (1993) 17 Cal.App.4th 1363, disappoved on other grounds in People v. Russo 3 Although the fight occurred after the charged crimes, post-crime evidence may constitute circumstantial evidence of a defendant’s intent at the time the charged crimes were committed. (People v. Johnson (1993) 6 Cal.4th 1, 36, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879 [intentto steal can be proven circumstantially by post-crime actions]; People v. Abiles (2007) 41 Cal.4th 472, 508 [same].) (2001) 25 Cal.4th 1124, 1134, for the propositionthat “{c]rimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern ofcriminal gang activity.” (Duran, supra, 97 Cal.App.4th at p. 1458.) These cases are ofno assistance to Mota, however, because this evidence was not offered to establish a predicate offense. Rather it went to whether he was a gang member whenthe crimes were committed and his intentions in conimutting these crimes. With regard to Mota’s Evidence Code section 1101, subdivision (b) argument, “(clase law holds that where evidence of gang activity or membership ts importantto the motive, it can be introduced evenif prejudicial. [Citations.]” (People v. Martin (1994) 23 Cal_App.4th 76, 81; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 -1370.) Given that evidence of the circumstances and nature of this fight were directly relevant to Mota’s motivation for committing the charged crimes, we find noerror. J. Prosecutorial Misconduct 1. Absence of Evidence of Blood in Mota’s Car Menendeztestified that, while he was in Mota’s car in mid-April 2008, he shot himselfin the leg, causing significant bleeding. About a month later, Mota’s car was examined by the police. This examination yielded no physical evidence to corroborate Menendez’s story: no blood. bullets or fingerprints were found. The car contained a child seat and other baby items. Mota’s counsel argued, during closing argument, that because there was no evidence of a gun-inflicted injury in Mota’s car, Menendez had lied whenhetestified aboutthis incident. Specifically, counsel told the jury that Mota’s car “wasseized, it was searched, and what was found in the car? Absolutely no blood. Not single drop of blood. [§] No forensic evidence whatsoever, despite the car’s having been seized and thoroughly searched. Not a drop of blood.” Defense counsel went on: “And we all know you can’t clean up blood. Andif youtry to clean it up, you leave traces of chemicals.” The prosecutor objected on the ground that these were facts not in evidence. The trial court sustained this objection, pointing out that defense counsel’s assertion that an 55 effort to clean up blood leaves chemical traces, “is not either common knowledge or in evidence.” The prosecutor responded to defense counsel’s argument regarding the absence of evidence of any blood from Menendez’s self-inflicted wound. Hetold the jury that after Mota dropped Menendezoffat the hospital, it “makes sense that he [Menendez] wentto go clean it.” The court overruled defense counsel’s objection that there was “no evidence of that.” Thetrial court noted that the generalrule that “[c]ounsel are permitted to ask that the jury draw inferences from the evidence presented . . . .” Defendants now argue that the prosecutor committed misconduct when he suggested that the reason there wasno bloodin the back of the car might have beenthat Mota cleaned up the blood. Wereject this argument. “The applicable federal and state standards regarding prosecutorial misconductare well established. ‘ “A prosecutor’s. . . intemperate behavior violates the federal Constitution whenit comprises a pattern of conduct ‘so egregiousthatit infects the trial tos with such unfairness as to make the conviction a denial ofdue process.’ (Peoplev. Gionis (1995) 9 Cal4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfairis prosecutorial misconduct understate law only if it involves “ ‘ “the use of deceptive or 2739022 reprehensible methods to attempt to persuade either the court or the jury. (People v. Espinoza, supra, 3 Cal.Ath at p. 820.)° (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Regarding the scope of permissible prosecutorial argument, we recently noted ‘“ ‘a prosecutoris given widelatitude during argument. The argument may be vigorous as long as it amounts to fair commentonthe evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation maystate matters not in evidence, but which are common knowledge orare illustrations drawn from commonexperience, history or literature.’ [Citation.] “A prosecutor may “vigorously argue his case andis not limited to “Chesterfieldian politeness’ ” ’ [citation], and he may ‘use appropriate epithets... .’ [Citation.]” (People vy. Williams (1997) 16 Cal.4th 153, 221; People v. Heishman (1988) 45 Cal.3d 147, 195- 56 196 (Heishman) [counsel “prohibited fromstating or implying facts for which there is no evidence before the jury.”].) The defense and the prosecutor presented the jury with different explanations for the lack of evidence of blood m Mota’s car. Neither was implausible. Certainly, when there is an injury, particularly a gunshot wound, one might expect to find blood where the injury occurred. The fact that no blood was found in Mota’s carlendsitself to two inferences: that Menendez lied when he recounted the incident or Mota cleaned up the blood. Whatis important about both possibilities is that they amountto “ ‘ “fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” ’ ” (People v. Williams, supra, 16 Cal.4th at p. 221.) Noris it the case, as defendant argues, that in asking the jury to infer that Menendez had cleaned the blood off the seat of his car, the prosecutor stated. or implied facts “for which there is no evidence before the jury.” (Heishman, supra, 45 Cal.3d at p. 195.) In Heishman, our Supreme Court found that the where a prosecutor implied a conclusion based on evidence in the record, no misconduct took place. As in Heishman, the prosecutor's argument was based onthe facts before the yury—here, the fact that the car was devoidofblood. Wealsoreject defendant’s argumentthat his Fifth and Fourteenth Amendment rights to a fair trial and due process were violated because the trial court sustained the prosecutor’s objection to his statement regarding the chemical byproducts of cleaning up the blood, and overruled his objection in which the prosecutor suggested Menendez had cleaned the blood off the seat. The two statements were not “equivalent,” as defendant contends. Nor did the trial court err whenit allowed one and notthe other. 2. Disparagement ofDefense Lawyer During Rebuttal Motaalso arguesthat the prosecutor disparaged his truthfulness and integrity during rebuttal closing argument. In the first alleged mstance, the prosecutor told a story his grandfather, a farmer, told about a lawyer who was his neighbor. The farmer observed one day that the rope tying the goatin the lawyer’s yard had been chewed through and the farmer’s rose bushes 57 had been eaten. The farmertold the lawyer that the lawyer’s goat had eatenhis rose bushes. The lawyertold the farmer “It wasn’t mygoat. I don’t have a goat. [{] IfI do have a goat, it didn’t eat your roses. [{] If do have a goat and it did eat your roses,it’s because the rose bushes made them eat the roses. [{] If I do have a goat andit did eat yourroses . . . then the goat was insane.” The prosecutor told the jury that this story illustrated that his grandfather “wasn’t that happy that I was goingto be a lawyer. Andthe pointis, ladies and gentlemen, what are we here for? [§] Are weherefor the truth, or are we here just to throw everything out? Whatdid you just hear from the defense for Mr. Mota? [{] Well, ladies and gentlemen, you heard the following things: And it wasn’t stated explicitly to you because [defense counsel] didn’t want to comeout and saythat. [{] How many defensesare there for Mr. Mota? I don’t get it. My client wasn’t there. He may not have been there for the 2-16 and 4-26 of ’08 killings. [§] If myclient was there, he didn’t know whatthese guys were going to do. [{] If my client was there and he did know what they were doing, and it wasn’t self-defense, it was imperfect self-defense so he is only guilty of voluntary manslaughter. [{] If my client was there and he did know what they were doing andit wasn't self-defense or imperfect self-defense, thenthe bullets fired by Javier Gomez did not actually kill Rico McIntosh because you heard defendant Mota’s attorney cross- examin[e] Mr. Oganextensively. . . . [] If my client was there and he did know what they were doing and it wasn’t self-defense or imperfect self-defense, and you do believe the bullets fired by Gomez actually killed Mr. McIntosh, then my client is only guilty of lesser-included offenses that aren’t on the verdict forms, so heis not guilty.” In telling this story, the prosecutor did not commit misconduct. Pointing out the inconsistencies and implausibilities of an opponent's argumentis not an attack onthe opponent’s personal integrity. (People v. Medina (1995) 11 Cal.4th 694, 759, Peoplev. Gionis, supra, 9 Cal.4th at pp. 1217-1218.) Similarly permissible was the prosecutor’s characterization of defense counsel as a magician trying to trick the jury. In People v. Medina, supra, 11 Cal.4th at page 759, the court found that the prosecutor did not demean defense counsel’s integrity whenhe told 58 the jury that “ ‘any experienced defense attomey can twist a little, pokea little, try to draw somespeculation,try to get you to buy something ....’” The Medina court observed that “the prosecutor’s . . . argument was unobjectionable. To observe that an experienced defense counsel will attempt to ‘twist’ and ‘poke’ at the prosecution’s case does not amount to a personal attack on counsel’s integrity.” (See also People v. Gionis, supra, 9 Cal.4th at pp. 1217-1218.) Accordingly, we find no prosecutorial misconduct and reject defendants‘ argument. K. Substantial Evidence ofMurder and Conspiracy Elizalde was charged with conspiracy to commit murder and murder. The People characterized Elizalde as the conspirator who “stay[ed] home . . . and [did] nothing, but. . . started the design or agree[d] to the conspiracy ... .” The People told the jury that the testimony of Ruelas, Sanchez and Cervantes showed that Elizalde “was leading a charge to attack rival gang membersto bring the hood back.” The People’s theory was that the conspiracy to commit murder in which Mota and Elizalde participated had asits object the killing of rival gang members and the deaths of Centron, Perez and McIntosh were, therefore, the “natural and probable consequences of a conspiracy. . . .” Elizalde now argues that substantial evidence does not establish that the murders of Centron, Perez and McIntosh were a foreseeable consequence of a conspiracy in which Elizalde and Mota participated.*" We disagree. *4 Elizalde also contends that the only evidence supporting his convictionsis the uncorroborated testimony ofaccomplice witnesses. As we have previously held, four of the witnesses whotestified regarding Elizalde’s participation in a conspiracythat led to the murders of Centron, Perez and Mcintosh werenot, in fact, accomplices as a matter of law. Moreover, viewed in alight most favorable to the verdicts, the jury could have easily found that Valencia, Menendez, Cervantes and Ruelas were not accomplices and, thus, no corroboration was required. Finally, even ifthese witnesses were in fact accomplices, their testimony was adequately corroborated. 59 1, General Principles In People v. Johnson (2013) 57 Cal.4th 250, 257, our Supreme Court recently explained that “[s]ection 182 prohibits a conspiracy by two or more people to ‘comunit _ any crime.’ (§ 182, subd. (a)(1).) ‘A conviction of conspiracy requires proof that the defendant and anotherperson hadthe specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commissionofan overt act “by one or more ofthe parties to such agreement”in furtherance of the conspiracy.’ [Citations.]” “[IJit has long been established that direct evidenceis not required to prove a common unlawful design and agreement to work toward a common purpose; the existence of a conspiracy may be inferred as well from circumstantial evidence. [Citations.]” (People v. Buckman (1960) 186 Cal.App.2d 38, 46-47; People v. Calhoun (1958) 50 Cal.2d 137, 144.) To the extent that a particular crime could be said to be “unplanned,” a conspirator is responsible forit if it was a reasonably foreseeable consequenceof the conspiracy. “Whether the unplanned act was a ‘reasonably foreseeable consequence’ of the conspiracy must be ‘evaluated underall the factual circumstancesofthe individual case’ and ‘is a factual issue to be resolved bythe jury’ [citation], whose determination is conclusive if supported by substantial evidence.” (People v. Zieleseh (2009)179 Cal_App.4th 731, 739-740.) | 2. Substantial Evidence ofConspiracy Our review of the record indicates that substantial evidence supports the jury’s conclusion that (1) Elizalde conspired with Motato reestablish Varrio Frontero Locoby, among other things, murdering rival gang members and (2) the deaths of Centron, Perez and Mcintosh were the natural and probable consequence of that conspiracy. Officer Bradyofthe San Pablo Police Departmenttestified as a gang expert that in late 2007 and early 2008, Varrio Frontero Loco and the Mexican Locos were beginning to “clique up” together. Based on several murders that occurred as well as informant information, he believed that Gamaliel Elizalde was the “head shot-caller” of Varrio Frontero Loco. The gang was recruiting members and committing murders. He believed 60 Elizalde and other members ofVarrio Frontero Loco were attempting to “reestablish the 7?gang. Sancheztestified that in the year leading up to the murders of Centron, Perez and McIntosh, Elizalde was the leader of Varrio Frontero Loco. The gang was onthe decline—-members were being hut andterritory was disappearing. To counteractthis state of affairs, Elizalde, along with Sanchez, Mota, Ruelas, and others, began to recruit new members. They also embarked on a campaignto “do more damageto the Nortefios.” Elizalde encouraged Varrio Frontero Loco members to makesure that the Nortefios were aware that they were a present and powerful force by going into Nortefio territory to beat up or shoot anyone who appeared to be a Nortefio. Menendez confirmed that this was, indeed, the understanding ofthe Varrio Frontero Loco members who “wanted to get rid ofNortefios.” Although Menendez was not sure, he believed that Elizalde was the “shot-caller.” Ruelas confirmed Menendez’s suspicion regarding Elizalde’s role in the Varrio Frontero Loco. Ruelas alsotestified that Molina told him that they were “bringing the hood back”and violence against rival gang members was an important part of this effort. In addition to substantial evidence that Elizalde wasa significant player in a conspiracy to re-establish Varrio Frontero Loco as a powerful gang through violence— including murder—against Nortefios, substantial evidence also supports the jury’s conclusion that the deaths of Centron, Perez and McIntosh were the foreseeable consequence of the conspiracy to “bring[] the hood back.” Centron, Perez and McIntosh were targeted because they appeared to be Nortefios, the principal target of the Varrio Frontero Loco. Elizalde’s argument that these murders were not foreseeable because the victims were outside Richmond, which was the area claimed by the Surefios, makeslittle sense. San Pablo was well known to be Nortefio territory. Given that the Varrio Frontero Loco conspired to kill Nortefios, they would generally do so in San Pablo, rather than Richmond. The jury’s verdict, therefore, is supported by substantial evidence. 61 L. Telephone Conversations Between Molina and His Mother Elizalde contends that portions oftwo telephone conversations—mainly between Hector Molina (who wasinjail at the time of the conversations) and his mother——butalso in one instance involving Elizalde, were improperly admitted under Evidence Code section 1223’s co-conspirator’s hearsay exception. We disagree. 1. Factual Background In the first of the two telephonecalls, both of which occurred while he was incarcerated at the Martinez Detention Facility, Molina told his motherto contact Elizalde (Gama) and tell him “that they got me in.” Hector’s mother replied, “[b]ut you didn’t do it, if you didn’t do it!” and he replied “Well, yes, it was me. They already know.” He told his mother to “Tell [Elizalde]. Ask [Elizalde] to help you. [Elizalde] can help you. [Elizalde] will give me money as well. Tell [Elizalde] I’ve told him to send me money.” Molinaasked his motherto place a“three way” call to Elizalde. When Elizalde did not answer, Molinaleft a message telling Elizalde that “they got me for murder” and that “I need youto take care ofmy family. . . [t]ake care ofmy mama... .” In the second call, Molina’s mothertold him that Elizalde brought her $50. She also told himthat Elizalde told her that Molina “should say no, no, no, I didn’t doif,it couldn’t have been me. I didn’t do anything. To keep your word, and no, no, no.” Molina’s mother placed another three way call to Elizalde. This time, Elizalde answered. Heinstructed Molina, “whatever happened, you---you say that you don’t know, okay man?” Molina responded, “Yeah, man.” Elizalde then said “On your own, man, no. Just tell them no, you don't knowand they can’t get youout ofthat.” Elizalde sought to have evidence of these phone calls excluded on hearsay grounds. The People argued that they were admissible underthe co-conspirator exception to the hearsay rule pursuant to Evidence Code section 1223. Thetrial court found that the People had “clearly made a prima facie case that the conspiracy described in the indictment existed. That the conspiracy was on-going in February and March of 2008at the time of the phone calls. That Mr. Elizalde was a leader of VFL or shot- caller for VFL and that Mr. Mota was a memberofthe conspiracy. And that Mr. Gomez 62 was also a memberof the conspiracy.” The court pointed out that Gomez’s confession “can be considered as part of the prima facie case of his membership in the conspiracy.” AsSureiios, the “co-conspirators lived under a numberofrules that are relevant to this analysis. [{] First, is never cooperate with police. Never give a confession. Never give a statement. Neveragree to testify. If you are arrested, fellow gang members will put money on your booksto help you buy thingsinthejail which enables you to be more comfortable and to increase your influenceat the jail. [{]] The Surefios in the jail were required to contribute money or buy things for other Surefios in custody. And then Surefios in custody werestill required to assault Nortefios at every opportunity. [§] So the culture of attacking rival gang members did not stop uponarrest.” The court found that Molina wasreleased following his arrest after the Centron murderand “within days” he “immediately returned to the active participation in the conspiracy. Just an indication that mere arrests [of conspiracy members] does not necessarily put their participation in the conspiracy at end.” The courtdid, however, redact numeroustelephone conversations in which Molina was“talking abouthis general welfare and that sort of thmg.” 2. Discussion ; Defendant argues thatthe trial court erred whenit found that the conspiracy was ongoing. He contends that because Molina had already been arrested whenthe telephone calls were made, the court could not conclude that he was involved in an ongoing conspiracy. Wereview the trial court’s ruling under the abuse of discretion standard and will not disturb it on appeal unless it was exercised in a mannerthat was arbitrary, capricious, or patently absurd and that resulted in a miscarriage ofjustice. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Thetrial court did not abuseits discretion in admitting the excerpts from these telephonecalls. Evidence Code section 1223 provides that “a statement offered againsta party is not made inadmissible bythe hearsay ruleif: [§] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime orcivil wrong and in 63 furtherance of the objective ofthat conspiracy; [{] (b) The statement was made priorto or during the timethat the party wasparticipating in that conspiracy; and [{] (c) The evidenceis offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions(a) and(b) or, in the court’s discretionas to the order of proof, subject to the admission of such evidence.” Asthe proponentofthe evidence, the People were required to “offer evidence sufficient for the trier of fact to determinethat the preliminary fact, the conspiracy,is morelikely than notto have existed.” (People v. Herrera (2000) 83 Cal.App.4th 46, 61.) The Herrera court explains that “[a] conspiracy exists when one or more persons have the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proofof the commissionofan overt act by one or more ofthe parties to such agreementin furtherance of the conspiracy. [Citations.] These facts may be established through the use of circumstantial evidence. [Citations.] They may also ‘ “be inferred from the conduct. relationship, interests, and activities ofthe alleged conspirators before and during the alleged conspiracy. [Citations.]” ’ [Citations.] [J] Once the existence of the conspiracy has been independently established, the offering party must then make three additional showingsin orderfor the content of the coconspirator’s statementto be considered by the trierof fact. That party must show:(1) that the declarant (who may or may not be the defendant) was participating in a conspiracyat the time of the declaration; (2) that the declaration was made in furtherance of the objective of the conspiracy; and (3) that at the timeofthe declaration the party against whomthe evidenceis offered was participating, or would later participate, in the conspiracy. [Citations.]” (/d. at pp. 64-65.) Weturn now to this case. The court had before it evidence that when the telephone calls were made—in February and March of 2008—Elizalde, who wasnotin custody at the time, was the shot caller for Varrio Frontero Loco. Even in custody, a Surefio like Molina adhered to rules of behavior established by the gang. Asthe trial court putit: “First, is never cooperate with police. Never give a confession. Never give a statement. Neveragree to testify. If youare arrested, fellow gang members will put moneyon your 64 booksto help you buy things in the jail which enables you to be more comfortable and to increase your influence at the jail. [{] The Surefios in the jail were required to contribute moneyor to buy things for other Surefios in custody.” Contrary to defendant’s argument that the conspiracy among the parties to attack Nortefios ended when Molinawas arrested, the court found that “Surefios in custody werestill required to assault Nortefios at every opportunity. [§] So the culture of attacking rival gang members did not stop uponarrest.” In fact, when Molina wasreleased following his arrest after the Centron murder, “within days” he “immediately returned to the active participation in the conspiracy. Just an indication that mere arrests [of conspiracy members] does not necessarily put their participationin the conspiracy at end.” This evidence wassufficient to support a finding that it was more likely than not that Molina and Elizalde were participants in a conspiracy when the telephone calls were made and, therefore, the telephone calls were properly admitted. M. Ineffective Assistance ofCounsel The short answer to Elizalde’s argument that counsel was deficient for failmg to object to the admission of these telephonecalls is that because (as we previously found) this evidence was admissible, any objection would have been unavailing and, thus, the failure to object did not constitute ineffective assistance of counsel. (People v. Frye (1998) 18 Cal.4th 894, 952, overruled on other grounds by Peop/e v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) N. Ruedass MySpace Post Luis Ruelas testified that he posted a message on his MySpace page in orderto war gang members not to harm his family. The gist of the message wasthat if gang members “touch my family their family can be touched, too.” The post read as follows: “but dis goesto all da lil homies, stop listening to da big homies, they dnt give a fuck bout ya lil niggas, dnt listen to Stranger, dat nigga is a nobody in VFL. Just cus hes close to Gama dnt mean shit. He never did no,jales . .. and Gamajust uses ya to take care of his shit. He dnt give a fuck bout ya.” He posted that the true members ofVFL were “Sleepy, Richy, Toby, Ruelas, Camacho,all da other VFLs except da pee weesare fucken suckas niggas.” The trial court instructed the jury pursuant to CALJIC No,3.13 that “[t]he required corroboration ofthe testimony of an accomplice maynotbe supplied by the testimony ofanyorall ofhis accomplices, but must come from other evidence.” Elizalde argues that the instruction was incorrect because the jury could have understoodit to meanthat Ruelas’s accomplice testimony could be corroborated by his MySpace post because that post might be considered “non-testimonial.” EvenifElizalde had notforfeited this claim because he did not object or request a modification to the instruction, his claim is without merit. We do not agree that the instruction could be construed as permitting the jury to use the MySpacepost as corroboration. The languageofthe instruction is broad enough to encompassthis particular communication. The instruction, therefore, did not violate his Sixth Amendmentright to make a defense. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) O. Elizalde’ s 2007 Methamphetamine Incident Aspart of its showing of a predicate offense for the gang charge and gang enhancements, the People put in evidence of an incident involving Elizalde’s 2007 possession of methamphetaminefor sale. Elizalde objected to the admissionofthis evidence under Evidence Code section 352. He argued then, as he does now on appeal, that the evidence was cumulative and more prejudicial than probative. Thetrial court did not abuse its discretion in admitting the evidence. At trial, two police officers testified that they searched Elizalde’s home on July 18, 2007. During that search, the officers discovered a trail of white crystals, which were later identified as methamphetamine, leading from a bathroom to where Elizalde was standing. In addition, the officers found the same white crystals around the top of the toilet bow] rim, on the floor of the bathroom, and on Elizalde’s abdomen. The officers also found indicia that Elizalde wasselling drugs. These included small Ziploc baggies, a digital scale, $755 cash in Elizalde’s pocket and “pay/owe” sheets. One of the officers, who was qualified as an expert on the possessionofnarcotics for sale testified that in his 66 opinion Elizalde possessed methamphetamine forsale and flushed it downthetoilet. Elizalde was arrested for possession of narcotics for sale and ultimately was convicted of only possession. Thetrial court admitted evidence of Elizalde’s conduct onthis occasion to meet the predicate crime requirements, finding that “the probative value is very high because they are legitimate proof of essential elements of the crime and enhancements.” With regard to the prejudicial effect ofthis evidence, the court found that althoughthe prejudicial effect ofthe evidence wassubstantial, a limiting instruction could mitigate that effect.*° Thetrial court did not abuseits discretion in admitting this evidence. Our Supreme Court recently considered a similar objection to gang evidence adnutted to prove a predicate offense undersection 186.22. The court explained that, in contrast to evidence admitted under Evidence Code section 1101 to showintent, motive or modus operandi, in which “ ‘evidence is probative because ofits tendency to establish an intermediaryfact from whichthe ultimate fact of guilt of a charged crime may be inferred. [Citations.]’ In prosecutions for active participation in a crinunalstreet gang, the probative value of evidence of a defendants gang-related separate offense generally is greater because it provides direct proof of several ultimate facts necessary to a conviction. Thus, that the defendant committed a gang-related offense on a separate occasion provides direct evidence of a predicate offense, that the defendantactively participated in the criminalstreet gang, and that the defendant knewthe gang engaged in a pattern of criminal gang activity.” (People v. Tran (2011) 51 Cal.4th 1040, 1048.) Not ’° The court did indeedgivethe jury limiting instructions regarding this evidence. After the two officers who searched Elizalde’shousetestified, the court instructed the jury that their testimony regarding Elizalde’s possession of methamphetamineforsale was admissible only with regard to the gang count and gang enhancements. The court wamed the jury that the evidence was “not admissible to suggest the Mr. Elizalde . . . has a bad character or a propensity to commit crimes, buy only on the predicate act elements of the gang charge and the gang enhancements ....” At the end of the trial, the court instructed the jury on the use of evidence that was admittedfor a limited purpose (CALJIC No. 2.09) and evidence of other crimes (CALJIC No. 2.50). 67 only is such evidence highly probative, but its prejudicial effect is comparatively weaker: “{T]he inherent prejudice from a defendant’s separate gang-related offense typically will be less when the evidence is admitted to establish a predicate offense in a prosecution for active participation in a criminal street gang, than when it is admitted to establish an intermediary fact from which guilt may be inferred. ‘Prejudice for purposes of Evidence Code section 352 means evidencethat tends to evoke an emotional bias against the defendant withvery little effect on issues, not evidence that is probative of a defendant’s guilt.’ [Citations.] As we explained in People v. Doolin (2009) 45 Cal4th 390: ‘ “The prejudice that section 352 ‘ “is designedto avoidis not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of “prejudging’ a person or cause onthe basis of extraneous factors.” ”’ (Ud. at p. 439.) That the evidence provided direct evidence of someof the elements of the prosecution’s case thus does not weigh against its admission. In addition, because the prosecutionis required to establish the defendant was an active participant in a criminal street gang and had knowledge of the gang’s criminal activities, the jury inevitably and necessarily will in any eventreceive evidence tending to showthe defendant actively supported the street gang’s criminal activities. That the defendant was personally involved in someofthose activities typically will not so increase the prejudicial nature of the evidenceasto unfairly bias the jury against the defendant. In short, the use of evidence of a defendant’s separate offense to prove apredicate offense should not generally create ‘an intolerable “risk to the fairness of the proceedings orthereliability of the outcome.” ’ [Citation.]” (Peoplev. Tran, supra, 5\ CalAth at p. 1048.) The 7ran court also addressed the contention Elizalde makes that evidence of his possession of narcotics for sale was cumulative of the evidence of other predicate offenses offered by the prosecution. “Defendant argues that evidence of a defendant’s separate offense on another occasionshould not be admitted when it 1s ‘cumulative.’ By this he seems to meanthat the evidence should not be admitted when the prosecution has the ability to develop evidence of offenses committed on separate occasions by other 68 gang members. But defendantcites no authority for the argument that the prosecution must forgo the use of relevant, persuasive evidence to prove an elementofa crime because the element might also be established through other evidence. The prejudicial effect of evidence defendant committed a separate offense may, of course, outweigh its probative valueif it is merely cumulative regarding anissue not reasonably subject to dispute. [Citations.] But the prosecution cannot be compelled to ‘ “presentits case in the sanitized fashion suggested by the defense.” ’ [Citation.] When the evidence has probative value, and the potential for prejudice resulting from its admission is within tolerable limits, it is not unduly prejudicial and its admission is not an abuseofdiscretion. Further, a rule requiring exclusion of evidence of a defendant’s separate offense on the theory the prosecution might be able to produce evidence of offenses committed by other gang members would unreasonably favor defendants belonging to large gangs with a substantial history of criminality. That the prosecution might be able to develop evidence ofpredicate offenses committed by other gang members therefore doesnot require’ exclusion of evidence of a defendant’s own separate offense to show pattern of criminal gang activity.” (People v. Tran, supra, 51 Cal.4th at pp.1048-1049.) In ourview, the evidence of Elizalde’s conduct on this occasion was notso prejudicial as to precludeits admission. The jury hadbefore it evidence of numerousacts of violence committed by Elizalde and, in that context, evidence that he possessed methamphetaminefor sale can hardly be considered sufficiently prejudicial to outweigh its substantial probative value. P. Ineffective Assistance ofCounsel For Failure to Object to “ Other Crimes’ Evidence Elizalde argues that counsel was ineffective because he did not object to the introduction of evidence of Elizalde’s role in a numberof crimes. He contendsthat this evidence was “devastating,” and therefore counsel’s failure to object violated the Sixth Amendment. The evidence to which counsel did not object was: (1) testimony that Elizalde directed Sanchez and Ruelas to kill a surviving witness to the Centron shootings; (2) 69 evidence that “Weasal” who was a Varrio Frontero Loco shot caller fromprison ordered Elizalde to kill an informant and thatalthough Elizalde did not want to do so, he sent someone to burn the informant’s house down; (3) the fact that Elizalde kept a hit list of people whom he wanted killed and kepta stash of gunsathis brother-in-law’s house;(4) Ruelas’s description of an incident in which Elizalde asked Ruelas to kill someone who had slashed his tires; and (5) Ruelas’s opinion that Elizalde waskilling people “for no reason”and that he tried to persuade Elizalde to stop ordering so many shootings. This evidence was highly relevantto establish Elizalde's position as the Vartio Frontero Loco shot caller and his participation in the conspiracy to kill Nortefios. Moreover, given the amountof evidence ofsimilar activity on Elizalde’s part it was not more prejudicial than probative under Evidence Code section 352. Any objection counsel might have made regarding the admissionofthis evidence would have been unavailing. Inthat case, the failure to object does not constitute ineffective assistance of counsel. (People v. Frye, supra, 18 Cal.Ath at p. 952.) Q. Cumulative Error (Elizalde) Elizalde contends cumulative error in this case rises to the level of reversible and prejudicial error. (People v. Hill (1998) 17 Cal4th 800, 844, overruled on another ground in Price v. Superior Court (2001) 25 Cal4th 1046, 1069, fn. 13.) We disagree. The single error in this matter regarding the admission of Mota’s booking statement cannot amount to cumulative error because, along with being the sole errorin this case, it was harmiess. | IV. DISPOSITION The judgments are affirmed. 70 Haerle, Acting P.J. We concur: Richman,J. Brick, J.* * Judge of the Alameda County Superior Court, assigned bythe Chief Justice pursuantto article VI, section 6 of the California Constitution. 7) EXHIBIT B Court of Appeal’s December 19, 2013 Order Modifying Opinion and Denying Elizalde’s Petition for Rehearing Filed 12/19/13 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A132071 v. GAMALIEL ELIZALDE,et al., Defendants and Appellants. (Contra Costa County Super. Ct. No. 050809038) BY THE COURT: The opinion filed on November 19, 2013, is hereby modified as follows: Regarding the Petition for Rehearing of defendant Gomez. The parenthetical contained in the third line of the second paragraph on page two shall be revised to read “(Elizalde joinsin this argument)”. The parenthetical on the eleventhline of the second paragraph on page two shall be revised to read “(Elizalde jos in this argument)”. These modifications do not effect a change in the judgment. Defendant Gomez’s Petition for Rehearing is denied. Regarding the Petition for Rehearing of defendant Mota: Onpage 35 of the opinion in the second paragraph,line 4 “First” should be changed to “In our view,”. The third paragraph beginning with “The People” should be deleted. These modifications do not effect a change im the judgment. Defendant Mota’s Petition for Rehearing is denied. Regarding the Petition for Rehearing of defendant Elizalde: On page 65 of the opinion, subsection II.M. should be deleted and replaced with the following paragraph: “Elizalde argues that counsel was deficient for failing to seek redaction ofMota’s mother’s statement ‘Uh, my god, but [Elizalde] says that you should—youshould say no, no, no....’ However, this evidence was admissible under the party admission exception for Elizalde’s statement and as an excited utterance by Mota’s mother. Therefore, any objection would have been unavailing and, thus, the failure to object did not constitute ineffective assistance of counsel. (People v. Frye (1998) 18 Cal.4th 894, 952, overruled on other grounds by People v. Doolin (2009 45 Cal.4th 390, 421, fn.22.)” This modification does not effect a change in the judgment. Defendant Elizalde’s Petition for Rehearing is dented. Date: Haerle, Acting P_J. A132071, People vy. Elizalde etal. EXHIBIT C Court of Appeal’s December 19, 2013 Order for Partial Publication COPY Filed 12/19/13 . CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT ~ . Court ofAppee! FirsiAppellate Districi DIVISION TWO PE bee Sa al DEC. 19 2013 THE PEOPLE, Diana Herbert, Clerk oe ote Mee ee Dy voce ceice eee eee pee ee SOY ee oe DeputyClerk Plaintiff arid Respondent, A132071 —S y. GAMALIEL ELIZALDE,et al., (Contra Costa County Super. Ct. No. 050809038) Defendants and Appellants. BY THE COURT: The opinion in the above-entitled matter filed on November 19, 2013, was not certified for publication in the Official Reports. For good cause it now appearsthat the opinion should be publishedin the Official Reports with the exception of parts HI A through F and H through Q andit is now soordered. & ‘ee af Dated: wile yt 2 ow en t o m d C a t Haerle, Acting P-J. * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception ofparts II] A through F and H through Q. PROOF OF SERVICE I, the undersigned, declare that I am over the age of 18 and nota party to this action. Mybusiness address is P.O. Box 23316,Pleasant Hill, California, 94523. On the date shown below,I transmitted a PDF copyofthe within GAMALIEL ELIZALDE’S PETITION FOR REVIEW to each of the following, using the e-mail address or delivery method indicated: Mr. David M. Baskind Ms. Fran Ternus Supervising Deputy Attorney General First District Appellate Project 455 Golden Gate Avenue, 730 Harrison Street, Suite 201 Suite 11,000 San Francisco, CA 94107 San Francisco, CA 94102-7004 eservice@fdap.org SFAG.Docketing@doj.ca.gov (Attorney for Respondent) Clerk of the Court of Appeal First Appellate District Division Two 350 McAllister Street San Francisco, CA 94102-3600 (By electronic submission) On the same date, I served a physical copy of the within document on each ofthe parties on the attached service list by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Pleasant Hill, California, addressed as indicated on the attached servicelist: I declare underpenalty ofperjury the foregoing is true and correct. Executed this 26th day of December, 2013 at Pleasant Hill, California. q ; Soltoos Avyt Solomon Wollack Mr. Aron DeFerrari Deputy District Attorney Contra Costa County 725 Court Street, 4th Floor Martinez, CA 94553 Mr. G Wright Morton Attorney at Law 706 Main Street, Suite A Martinez, CA 94553 Mr. Stephen B. Bedrick 1970 Broadway - Suite 1200 Oakland, CA 94612 Mr. John Ward 584 Castro Street - Suite 802 San Francisco, CA 94114 Clerk of the Superior Court County of Contra Costa Attn: The Hon. John Kennedy 725 Court Street, Room 103 Martinez, CA 94553 Mr. Gamaliel Elizalde SERVICE LIST Respondent: People of the State of California Trial Counsel for Gamaliel Elizalde Co-appellant: Jose Mota-Avendano Co-appellant: Javier Gomez Appellant