Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF139619A. Joseph A. Kalashian, Judge.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
This case arises out of the shooting of two police officers during a traffic stop. Defendant Jeffrey Barbosa was convicted of two counts of conspiracy to commit murder (Pen. Code, §§ 182,187), two counts of attempted murder (§§ 664, 187), two counts of aggravated mayhem (§ 205), and one count of discharging a firearm from a vehicle at a person (§ 12034, subd. (c)). He received a total prison term of 100 years to life.
Further statutory references are to the Penal Code unless otherwise specified.
Defendant’s brother, Jesse Barbosa, was jointly charged with the crimes and convicted in a separate jury trial. He has appealed from the judgment of conviction in case no. F052621.
Defendant raises five contentions on appeal. First, he contends the evidence was insufficient to support the conspiracy convictions because he was simply following his brother’s orders to shoot the officers without their reaching the mutual understanding necessary to support the agreement element of a conspiracy.
Second, he claims the evidence was insufficient to support the aggravated mayhem convictions because the shootings were sudden and indiscriminate and, therefore, the circumstances of the shootings did not support the jury’s finding that he had the specific intent to maim the officers.
Third, he argues the evidence was insufficient to sustain a finding of the existence of a criminal street gang as required for the gang allegations because, although he does not dispute the evidence established the Norteño gang is a criminal street gang, he claims, essentially, that the prosecution failed to prove the local subset of the Norteño gang, in which defendant was involved, also qualified as a criminal street gang. Thus, he argues, there was no gang which could be said to have benefited from his crimes.
Fourth, he asserts the court abused its discretion by denying his motion to bifurcate the gang allegations from the underlying substantive offenses.
Fifth, defendant contends the court failed to adequately respond to a jury question concerning the definition of a criminal street gang.
We reject defendant’s contentions, which depend largely on his unsupported characterization of the shootings in this case as a sudden explosion of violence caused by a surprise confrontation with police officers to which he responded by reactively following the orders of his older brother. As will be seen, the evidence in this case clearly showed planning activity and deliberate conduct on defendant’s part to carry out the shootings. The police encounter had been unfolding as a fairly routine traffic stop until defendant blasted the first officer, at close range, with a sawed-off shotgun, which he retrieved from the backseat of the car before the officer reached the car and asked defendant’s brother for his driver’s license. Any escalation of violence that occurred was attributable to the conduct of defendant and his brother, not the police officers. We further conclude there was sufficient evidence to establish the existence of a criminal street gang and the court did not abuse its discretion by denying defendant’s motion to bifurcate the gang allegations because the gang evidence was relevant to the issue of motive. Finally, we conclude defendant forfeited his challenge to the court’s response to a jury question regarding the gang allegations because his counsel acquiesced to the court’s planned response, and, in any event, defendant’s challenge is without merit. Rejecting all of defendant’s contentions, we affirm the judgment.
Throughout his briefing on appeal, defendant characterizes the shootings as “spontaneous and reactive” despite the lack of evidentiary support for this characterization. For example, in his argument challenging his convictions for aggravated mayhem, defendant characterizes the evidence as follows: “Due to the unexpected nature of the police contact, and the sudden and rapid escalation of violence, the attack on the officers was carried out in an indiscriminate, ‘shotgun’ manner. The officers’ injuries were a possible result of the assault, but they were not the result of deliberate, directed, and controlled behavior by [defendant] and his brother.” (Italics added.)
Defendant testified in his own defense at trial, disavowing his early admission to detectives that he shot the two police officers, and claiming his brother Jesse and their friend Manuel shot the officers. However, on appeal, defendant does not challenge the sufficiency of the evidence to establish that he was the shooter. Accordingly, we focus our factual summary on the facts relevant to the issues he raises on appeal.
The events in this case took place in the early morning hours of January 17, 2005. Defendant rode with his older brother, Jesse Barbosa (Jesse), to Tulare from their home in Earlimart. There was a sawed-off shotgun in the backseat of the car. Defendant later told detectives that he and Jesse went to Tulare to commit a car burglary in order to get a car radio or stereo. According to defendant, the plan was Jesse’s idea but he agreed to it, and the car and gun both belonged to Jesse. Neither defendant nor Jesse was prepared to use the gun in the commission of a burglary. Rather, they would only use the gun if someone came out of a house and started shooting at them.
Around 3:00 a.m., Jesse’s car was spotted by Tulare Police Corporal Trishun Jackson-Espinosa (Corporal Jackson) and Officer Jeremy Jones, who were on patrol in a residential area of Tulare. Corporal Jackson observed two people inside the car, wearing dark clothing and caps or hats. Corporal Jackson initiated a traffic stop after learning the car’s registration was expired. The car pulled over right away.
After she stepped out of the patrol car, Corporal Jackson observed Jesse “continuously” looking back at her through his side mirror. She ordered Jesse and defendant to look forward and put their hands up two or three times before they complied. Corporal Jackson then began slowly to approach the car on the driver’s side, while Officer Jones approached on the passenger’s side. The driver’s window appeared to be in the down position.
When she reached the driver’s door, Corporal Jackson asked Jesse for his driver’s license, registration, and proof of insurance. Jesse responded by just shaking his head. Corporal Jackson observed that Jesse’s hands were on the steering wheel and that his seat was pulled up very close to the steering wheel, while the passenger’s seat was somewhat farther back. Corporal Jackson noticed defendant’s hands start to come down towards the floorboard in front of him. She ordered him to put his hands up. He made a motion like he was putting them up, but then his hands moved down again. Corporal Jackson heard a shotgun blast and saw what appeared to be shotgun webbing in the air. She was hit in her left shoulder and fell to the ground.
After Corporal Jackson heard the shotgun blast, she heard Officer Jones yell frantically, “11-99, shots fired, officer down, officer down.” She then heard Officer Jones return fire. Soon she was aware of Officer Jones standing above her and calling her name. She then heard another shotgun blast and Officer Jones calling out on the radio that he had been shot. Jesse exited the car, looked at Corporal Jackson, and then began to run.
After Corporal Jackson was shot, Officer Jones fired one shot into Jesse’s car with his nine-millimeter service pistol. The shot he fired broke the passenger side window and struck the interior panel of the driver’s door. After he fired his weapon, Officer Jones ran around to the driver’s side or the car. While he was attending to Corporal Jackson, he was shot in the face. Two witnesses, who happened to be driving by at the time, observed that one officer was kneeling down by another officer who was lying on the ground when they heard a loud gunshot. One of the witnesses called 911.
A husband and wife living at a nearby apartment building were awoken by a loud bang around 3:00 a.m. They heard male voices saying something to the effect of “Hurry up, hurry up. Come on, let’s go.” The husband went outside and saw someone in dark clothing jump over a fence. The wife heard the sound of people jumping on the trash can and then over the fence.
Police officers, who responded within minutes of the shooting, set up a perimeter which was then searched by SWAT team members. Around 6:00 a.m., with the help of a police dog, defendant and Jesse were found hiding in bushes around the median divider of Highway 99. The shotgun was located nearby.
As a result of the shootings, both Corporal Jackson and Officer Jones were hospitalized and underwent multiple surgeries. At the time of trial, Corporal Jackson was unable to use her left arm and unable to return to work. She experienced constant pain of varying intensity in her arm. She had surgeries to graft nerves from both legs in an attempt to regenerate the damaged nerves in her arm. As a result, she was no longer able to sprint and participate in field and track events as she had done prior to the shooting.
After the shooting, Officer Jones was hospitalized for two weeks and was unconscious for the first week. During that time, he had to undergo surgery to remove one of his eyes. He later had surgery on arteries near his brain which was performed by a neurologist. It took about ten months for Officer Jones to return to work and, at the time of trial, he was only on light duty.
Defendant was interviewed by detectives twice several hours after his arrest. Initially, defendant claimed the shooting was accidental. According to defendant, he and Jesse were “drivin’ around” but decided to go home when “the cop came.” He and Jesse were the only people in the car. Jesse was scared of going to jail because they had a shotgun in the backseat. Defendant grabbed the shotgun in an attempt to hide it from the police officer. When defendant was ordered to put his hands up, he accidentally pulled the “sensitive trigger” and the gun, which was pointed at the officer, fired. A male officer then shot the window. Scared, defendant took off running.
As he was running, defendant turned around and fired a second shot. Defendant claimed he shot the second officer because Jesse told defendant he had been shot and defendant was afraid of being shot too. Defendant said the officer was kneeling on the ground next to the driver’s side of Jesse’s car and had his gun pointed at defendant when defendant fired at him. A little later in the first interview, defendant admitted he shot the officer to help his brother escape but denied he had any desire to kill the officer and claimed he was just trying to scare him. Defendant also denied that, before the first shooting, Jesse told him to shoot the cop if they got stopped.
During the second interview, defendant confirmed that the first shooting was not an accident and that he was following his brother’s orders to shoot the police officer. Defendant told the detectives that Jesse “told me to shoot her” and said “if we get stopped, to like shoot.” Defendant also confirmed that as they were running away, Jesse told him to go back and shoot the other officer, and that defendant stopped and actually came back a short distance to shoot the officer. When asked if Jesse instructed him on how to use the gun, defendant responded that Jesse “told me to do everything” and “to point it at her and shoot.”
Gang evidence
Janelle Martinez testified that she had known Jesse for six years and she was “kind of” his girlfriend. She also knew defendant from when she visited Jesse at his house.
Martinez was at defendant’s house the morning of the shooting and spoke to police officers there. She identified a digital camera they found as belonging to her. She confirmed she took a number of photos found on the camera and said they were taken a few days prior to the shooting. These included photos showing defendant, Jesse, and other individuals making hand signs and wearing clothing associated with the Norteño gang. There was also a photo of defendant holding a sawed-off shotgun like the one used in the shooting.
Martinez testified she used to be a Norteño and admitted that she had been caught twice riding around in stolen cars. She acknowledged there used to be a group of Norteños in Earlimart, but claimed there was no longer a leader, and that without a leader, there was no gang. Martinez acknowledged there was a group of people who dressed like Norteños and called themselves “ETC,” which stands for “Earlimart Tulare County,” but asserted “it’s not really a gang, just little wannabes.” Martinez acknowledged that, at the preliminary hearing, she had testified that defendant and Jesse were Norteños but indicated what she meant was that they were Northerners, which she distinguished from being Norteños. While Northerners backed Norteños and wanted to be in the gang, they were not real gang members. Norteños, on the other hand, were members of the gang that had “already been jumped into it.” She further testified that “[t]he main thing with Northerners is respect.”
Tulare County Sheriff’s Detective Joe Aguilar testified an expert on gangs. He referred to Norteños and Northerners interchangeably throughout his testimony. According to Detective Aguilar, there were approximately 2000 Norteño gang members in Tulare County, and approximately 1500 or 1800 members of the rival Sureño gang. Norteños claim the color red, the letter “N,” and the number 14.
Generally, when viewed from outside, gang members do not have a hierarchy. However, there usually “tends to be a stronger individual physically and some individual with charisma, somebody who is aggressive tends to take over the gang.” Detective Aguilar acknowledged that active gang members regularly deny their involvement in gangs and testified that “they will put it in the context that they used to bang.”
The Norteño gang has been in existence since the 1950’s, and it has been in Tulare County since the 1960’s. Historically, Earlimart has been affiliated with Norteños. The Norteños in Earlimart call themselves Earlimart Tulare County or ETC, and claim the entire town. There are 38 members of ETC known to law enforcement. The primary activities of ETC members are “car theft, burglary, and also assaults.” Regarding how an individual becomes a member of ETC, Detective Aguilar testified:
“Earlimart Tulare County does not have a jump-in. To join the gang, you simply hang out with an established gang member. You associate with them. You associate with them, go to their parties. You commit crimes with them. You wear the color. You may do some vandalism, like spray painting areas.”
Detective Aguilar testified regarding two predicate offenses that occurred in Tulare County. Benigno Picasso, a Northerner, was convicted in 2004 of assault with a deadly weapon with a gang enhancement as a result of a stabbing incident in Lindsay, where the victim was believed to be a Southerner. Another Northerner, Amado Amaya, was convicted in 2006 of being a felon in possession of a firearm with a gang enhancement as a result of a shooting incident in Porterville, where the victim was wearing a blue belt and claimed to be a rival gang member.
Detective Aguilar also testified regarding an incident that took place on January 5, 2003. A deputy responded to a report of a vehicle being stolen and vandalism. The victim reported that some juveniles had thrown rocks at his vehicle, and that when he confronted them, they stole his vehicle. The juveniles involved were defendant, Jesse, and Manuel Chavez. When they were contacted, they claimed the reason the incident happened was because the victim “had yelled ‘Sur pura sur.’ Which means south and only south, which would have angered a Northern gang member.” Jesse admitted he was angry and that he threw a rock which broke the window. Chavez said he took the car and parked it in a field but that somebody else must have stolen the radio out of it. Although the victim pointed out the juveniles as the perpetrators, he later “signed a nonpros.” Detective Aguilar explained that, “typically on gang cases the subject is afraid of retaliation, and they will sign a nonpros.”
Detective Aguilar opined that defendant and his brother Jesse both met similar criteria for gang membership. The detective concluded that defendant was a gang member based on defendant’s response to a classification form he filled out when he was taken into police custody, his regular association with other gang members, his wearing of gang colors, his possession of gang materials and writing, and the photos showing him with Jesse and other gang members “flashing gang signs and guns.”
It was Detective Aguilar’s opinion that the crimes in this case were committed in furtherance of and in association with the gang. He explained how shooting police officers could benefit them: “It would establish their notoriety. It would give the gang itself huge respect out in the streets, and if they could get away with it, they would be highly regarded in the gang itself.” Detective Aguilar further testified that weapons, particularly firearms, are essential to gang members and is what gives them power.
The defense
Defendant’s sister, Jessica Barbosa, testified that gang problems were “[n]ot really” a problem in Earlimart. When asked whether there were “a bunch of gang people in Earlimart,” Jessica responded, “Not really. No.” When asked what she meant, she testified, “[b]ecause I feel that’s just a bunch of wannabes” and “[l]ittle kids trying to be hard.”
Defendant’s sister, Jenny Sebastian, testified that she was lived with her father, brothers, and Jessica in Earlimart, and that she had lived with defendant all her life. She had never seen her brothers with any weapons. She did not know about gangs or whether they existed. A person’s wearing red had no meaning for her. She currently worked picking grapes in the fields, and wore bandannas over her face like nearly everybody else who worked in the fields. If she saw somebody wearing a red bandanna, she would not think they were in a gang.
James Vigil, an anthropologist and professor at the University of California, Irvine, specialized in urban youth and gangs and the court allowed him to testify as an expert on gangs, although Vigil did not consider himself an expert on gang members in Tulare County, and his research was not drawn from that region. However, he had studied gangs in urban and rural areas.
Vigil spent “a good part of a day” with the defense investigator visiting the whole area of Earlimart. Vigil also reviewed the preliminary hearing transcript, photographs, police reports and testimony, Detective Aguilar’s testimony, and spoke with members of defendant’s family, particularly defendant’s sister Josephine who provided him with “important information” on “a little bit of the history of street groups or gangs in the area.”
From his visit to Earlimart, Vigil concluded that Earlimart resembled “the classic rural barrios in Southern California that have now been surround[ed] by suburban sprawl; old dilapidated houses, no sidewalks.” They only found graffiti in one spot on a building near the main street, which read “ETC” and “BMW.”
The local probation officer with whom he spoke told Vigil that there was not much of a gang problem in Earlimart. She described the situation to as “more disorganized, more wannabes.” According to the probation officer, the biggest problem in the community was poverty and absenteeism. She had observed hardly any gang activity. Not much was happening at their school, although there had been some graffiti by Sureños. However, she described it as simply “wannabes sort of groping around, grasping for an identity.”
Vigil’s conversation with the local high school counselor was brief. When he asked the counselor whether there was a gang problem, the counselor responded: “Well, not really. We don’t have that much of a gang thing. A bunch of kids, wannabes trying to act like they’re bad.”
Vigil spoke “extensively” with defendant’s sister, Josephine, “who was a member of the gang.” Vigil described Josephine as “very helpful in giving information about her own personal life, the gang’s history in that area, and the role her brother didn’t play in the gang life that she was part of.” Josephine told Vigil there had been a gang in Earlimart known as the “Small-Town Locos” but they failed to “replenish themselves in terms of new recruits” and “sort of flittered away.” Then there were “guys calling themselves Earlimart Tulare County” and, in the process of trying to define themselves, they fell upon the name of Norteños, “because that was common to describe where they lived in California. Anybody north of the Tehachapi Mountains is Norte[ñ]os.”
Vigil described the “budding group that’s claiming to be a gang and Norte[ñ]os and ETC” as “amorphous” and lacking “cohesion.” Vigil explained:
“I think of the police officers interviewing the defendant and asking where he’s from, and he doesn’t know where he’s from. He doesn’t know west side from east side to south side. His answer was he hangs around with Norte[ñ]os. And when I talk to the sister, this is not a gang in the near traditional sense. This is more of a spontaneous gang where guys and girls trying to find their way and lost and taking on these labels and names, and sometimes, unfortunately, the behavior that goes with it. [¶] So it’s nothing set. It seems like there’s a lot of different small groups of guys and girls that are claiming this and that, but they don’t have any cohesion. They don’t have any hierarchy.”
After noting the lack of hierarchy, Vigil added: “Gangs are notorious, even the classic traditional gangs, of being very poorly structured, very informal. It’s not like a lock-step system where you go up the hierarchy and so on.” However, ETC was even more “amorphous” than “the hundreds and hundreds of gangs” Vigil had studied over the past decades of his work.
Vigil expressed the opinion that the photos found in defendant’s house merely showed defendant “wants to be a gangster in terms of the poses that he’s taken on.… But in my work I look behind photographs and graffiti and tattoos. I look at what a person does with their time, who they do it with, and what kinds of things they do.” Vigil noted that there was one photo of defendant from his middle school graduation and observed: “It looks like a regular, decent human being.” Vigil noted some of the poses depicted in the photos were not typical of a gang member, noting one photo where defendant was holding his nipples. Vigil thought people who considered themselves real Norteños would disapprove: “I think they would not just frown on it, they would think you guys are a bunch of punks. I was gonna say wannabes, but it’s been overused already this morning.”
Vigil opined that defendant was not a gang member. A number of factors led him to reach this opinion, including the fact that defendant had done well up until middle school. When defendant quit school, he was not idle but went to work in the fields, and later earned a welding certificate. Although some gang members work, generally they tend to do destructive things and are not a “contributing force in their family” as defendant had been. Moreover, prior to the shooting, defendant had not been identified as a gang member and was not in any of the field identification reports that were compiled for the case.
Vigil further testified that although they “hate cops,” gang members “don’t go out and shoot cops” because “they know if they shoot cops, they’re gonna have all hell break loose, and everybody in the gang, if it’s a big enough gang, are gonna be hassled by law enforcement.” Vigil concluded that the shootings in this case were not gang related, explaining:
“So it’s not in my estimation a gang case. That’s kind of a major stretch for law enforcement to make this kind of connection, that they’re doing it for the benefit and the promotion of the gang and getting more respect. They’ll get a hell of a – first of all, there’s no real gang in ETC to get respect from. You know, there’s no one there to pat you and give you the high five and say you did a great job. It doesn’t happen.”
With respect to the prosecution expert’s opinion that defendant and his brother were acting together as gang members, Vigil testified:
“Well, that’s part of the [murkiness]. From what I can see and read, his affiliation with gang members or association with gang members has been mostly through his brother and his sister. So it’s kind of hard to not associate with your brother and sister. [¶] When this act or incident emerged, there was a mixture of personal emotional things involved with committing a terrible crime. And I doubt very much if a gang was not a part of the thinking or the motivation for somebody to commit a crime of this sort. I’ve already testified to that, that this brings a lot of bad attention to the gang, a lot of police repercussions.”
Defendant testified on his own behalf. As noted above, defendant disavowed his admissions to detectives that he shot the two police officers, and attributed the shootings to Jesse and their friend Manuel Chavez. Defendant claimed he regarded Chavez as a brother, and that Jesse asked defendant to lie for them because defendant “wouldn’t get that much time.” Defendant claimed he was now telling the truth at trial because he had a daughter to go home to.
Valorie Martinez testified that she and defendant dated for three months and that she had a baby with him. Defendant testified that he found out he was going to be a father with Valorie in November 2004.
Defendant also denied that he belonged to a gang. He dropped out of high school and went to work in the fields with his father, picking grapes. Everyone would wear bandanas over their faces to keep out pesticides and dust. Defendant confirmed that he had a red bandana up on the wall of his bedroom. It was pinned up with a farm worker bird that he got from the Valley School in Delano.
Defendant identified a photo of himself and Chavez “throwing up an N.” Defendant knew that it stood for “Northerners.” In another photo with Janelle Martinez and Chavez, defendant was “throwing up a one” and Chavez was holding up four fingers. When asked why he did this, defendant testified: “I always throw up ones, like I’m number one.”
Although Jesse was in a lot of the pictures wearing red and throwing gang signs, defendant testified that, like him, Jesse was not a gang member. Defendant explained that it was not enough just to wear colors to get into the gang, and claimed “[y]ou have to actually do something to get in it.” Although Jesse was approached by one of the gang members, he did not get jumped in. However, defendant’s sister Josephine was jumped in and had her own little clique.
DISCUSSION
I. Sufficiency of the Evidence – Conspiracy to Commit Murder
Defendant contends the evidence did not support his convictions for conspiracy to commit murder because there was no evidence of an agreement between defendant and his brother to murder the two police officers.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain the verdict. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal for insufficiency of the evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Accordingly, when the evidence is largely circumstantial, reversal is not warranted simply because the evidence might support contrary findings equally as well as those made by the trier of fact. (People v. Ceja, supra, 4 Cal.4th at p. 1139.)
Criminal conspiracy exists when, with specific intent, two or more persons conspire to commit an offense. (People v. Morante (1999) 20 Cal.4th 403, 416; People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.) There must be proof of an overt act by one of the conspirators in furtherance of the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 599-600.)
There is sufficient evidence of the existence of a conspiracy whenever the evidence permits an inference that the parties “positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.” (People v. Cooks (1983) 141 Cal.App.3d 224, 311.) One need not be a member of a conspiracy from its inception but may join after it is formed and actively participate in it, thereby adopting the other conspirators’ acts and declarations. (People v. Aday (1964) 226 Cal.App.2d 520, 534.) It is not necessary that all conspirators fully comprehend the scope of the conspiracy, act together rather than in separate groups, or use the same means known to all of them, as long as their actions were committed in furtherance of the conspiracy. (People v. Cooks, supra, 141 Cal.App.3d at p. 312.)
Circumstantial evidence suffices to establish the existence of a conspiracy, and, conspiracies are generally shown only by such evidence. (People v. Robinson (1954) 43 Cal.2d 132, 136.) The overt acts themselves may serve as circumstantial evidence of the conspiracy’s existence. (People v. Herrera, supra, 70 Cal.App.4th at p. 1464.)
Here, there was sufficient evidence that defendant and Jesse positively or tacitly reached separate agreements to carry out the two shootings of Corporal Jackson and Officer Jones. The overt acts and other circumstances surrounding the shootings are evidence of the existence of the conspiracies. Defendant told detectives that Jesse instructed him to shoot the officer if they got stopped. Defendant reached to the backseat of the car and retrieved the shotgun (count 1, overt act 1). Jesse leaned forward in his seat (count 1, overt act 2). Defendant shot Corporal Jackson through the car window (count 1, overt act 3). As they were fleeing, Jesse told defendant to shoot Officer Jones. Defendant ran back and shot Officer Jones (count 2, overt act 4). By running back so that he would be firing from a closer range and shooting the officer in the face, defendant increased the likelihood of inflicting a fatal injury on the officer. A jury could reasonably conclude defendant’s calculated actions reflected, or were taken as part of, concerted plans or agreements to kill the officers. Defendant offers no authority for the proposition that the circumstance that Jesse expressly ordered or directed the shootings precluded defendant from reaching a mutual understanding with him or entering into agreements to kill each of the officers. As seen from the authorities cited above, conspirators are not required to play equal roles in a conspiracy. Accordingly, we reject defendant’s arguments and conclude there was sufficient circumstantial evidence to support the agreement element of each conspiracy for which defendant was convicted.
As defendant correctly notes, the first three overt acts alleged in count 2, which are identical to the three overt acts in count 1, do not support a separate conspiracy to kill Officer Jones because they referred to the shooting of Corporal Jackson and preceded the alleged agreement to kill Officer Jones. However, a conspiracy conviction can rest on a single overt act (People v. Russo (2001) 25 Cal.4th 1124, 1131-1136.) Overt act 4 and the surrounding circumstances evinced a separate agreement to shoot Officer Jones. “Each separately planned murder is the goal of a separate conspiracy.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1133.)
II. Sufficiency of the Evidence – Aggravated Mayhem
Defendant contends his convictions for aggravated mayhem must be reversed because there is insufficient evidence to support the finding that he had the specific intent to maim the officers.
Section 205 provides: “A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill.…”
Specific intent to maim is an essential element of aggravated mayhem. (§ 205, People v. Quintero (2006) 135 Cal.App.4th 1152, 1167 (Quintero).) “[S]pecific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately.” (People v. Ferrell (1990) 218 Cal.App.3d 828, 835.) Such intent may be inferred, however, “‘…from the circumstances attending an act, the manner in which it is done, and the means used, among other factors.’ [Citation.]” (Quintero, supra, 135 Cal.App.4th at p. 1162.) For example, evidence that a defendant’s attack was aimed at a vulnerable part of the victim’s body, such as his or her head, supports an inference that the defendant specifically intended to cause a maiming injury. (Ibid.; People v. Park (2003) 112 Cal.App.4th 61, 69.)
Here, defendant focused his attack on particularly vulnerable regions of the officers’ bodies. He shot Corporal Jackson in the upper body with a sawed-off shotgun from an extremely close range. Defendant’s attack on Corporal Jackson resulted in her losing the use of her left arm. Defendant subsequently ran back to shoot Officer Jones in the head and face area. Officer Jones lost one of his eyes as a result of defendant’s attack. The forgoing evidence is plainly sufficient to support the jury’s findings that defendant specifically intended to maim the two police officers. (Quintero, supra, 135 Cal.App.4th at p. 1163; People v. Park, supra, 112 Cal.App.4th at p. 69 [evidence deemed sufficient to support finding that defendant sufficient to support finding that defendant specifically intended to maim where, among other things, he “aimed at an extremely vulnerable portion of [the victim’s] body: his head”].)
III. Sufficiency of the Evidence – Gang Allegations
Defendant challenges the sufficiency of the evidence to invoke the special gang allegations included in each count. To prove the gang allegation relevant in this case, the prosecution was required to prove that the crimes were “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members .…” (§ 186.22, subd. (b)(4).)
Section 186.22, subdivision (b)(4) reads in part: “Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph.”
Specifically, defendant challenges the evidence concerning the existence of a criminal street gang. In order to prove the existence of a criminal street gang, “the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period.” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Among the predicate offenses that may be used to prove the second and third elements are the commission or attempted commission of: assault with a deadly weapon (§ 186.22, subd. (e)(1), homicide (§ 186.22, subd. (e)(3)), discharging a firearm from a vehicle (§ 186.22, subd. (e)(6)), burglary (§ 186.22, subd. (e)(11)), aggravated mayhem (§ 186.22, subd. (e)(17)), and theft and unlawful taking or driving of a vehicle (§ 186.22, subd. (e)(25)).
Defendant does not dispute that the evidence established that the Norteño gang is a criminal street gang within the meaning of section 186.22. Rather, he seems to be disputing the existence of the particular Norteño subset to which the gang expert testified he belonged; i.e. Earlimart Tulare County or ETC. He complains that there was no evidence of any predicate offenses being committed in Earlimart. Relying heavily on the defense expert’s testimony, defendant also complains that, given the absence of a defined structure or hierarchy in ETC, there was no gang which could be said to have benefited from his crimes.
Defendants’ criticisms are not well taken. Proof that the Norteño gang qualified as a criminal street gang was sufficient and the prosecution was not required to prove the existence of the local subset. (People v. Ortega (2006) 145 Cal.App.4th 1344, 1355-1356; In re Jose P. (2003) 106 Cal.App.4th 458, 467.) However, even if such proof was required, there was ample evidence that ETC qualified as a criminal street gang under the statute. According to Detective Aguilar’s testimony, it was an ongoing organization of more than three members, who had adopted as its common signs those claimed by Norteños generally. Detective Aguilar testified that ETC’s primary activities were the commission of car thefts, burglaries, and assaults. His testimony was competent to establish these facts. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322-324; People v. Gardeley, supra, 14 Cal.4th at pp. 617-622.) We are aware of no requirement that predicate offenses must be committed in the gang’s own territory, and as both the prosecution and defense experts recognized, criminal street gangs tend to lack apparent structure or hierarchy. The current crimes alone satisfied the third element of a criminal street gang set out above. Finally, Detective Aguilar explained how the type of crimes defendant and his brother committed and their features would serve to benefit their gang and enhance its reputation and that of its members. To the extent defendant urges us to adopt the defense expert’s contrary opinions, he is asking us to reweigh the evidence which, of course, we may not do. In short, ample evidence supports the gang allegations in this case and therefore we must reject defendant’s sufficiency of the evidence challenge.
IV. Motion to Bifurcate
Defendant contends the court should have granted his motion to bifurcate the gang allegations from the underlying offenses to prevent undue prejudice from the inflammatory gang evidence which has minimal relevance.
A trial court has broad discretion to control the conduct of a criminal trial. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) The court’s power to bifurcate the trial of a gang enhancement from the trial of the substantive offense is implied in section 1044. (Hernandez, supra, at p. 1048.) Hernandez explained that the need to bifurcate gang allegations is often not as compelling as the bifurcation of prior conviction evidence. (Id. at pp. 1048-1049.) “A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Id. at p. 1048.)
“[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) We review the trial court’s denial of defendant’s motion to bifurcate for abuse of discretion. (Hernandez, supra, 33 Cal.4th at p. 1048.)
The court here did not abuse its discretion in denying defendant’s motion to bifurcate the gang allegations. The gang evidence was intertwined with the underlying offenses because it was relevant to the issue of motive. Defendant’s argument that the gang evidence had minimal relevance in this case and was thus unduly prejudicial rests heavily on his assertions, rejected above, that the evidence was insufficient to establish the existence of a criminal street gang. We also reject his prejudice argument which is based on his unsupported assertions that the shooting was not the result of calculated conduct on his part. According to defendant, without the prejudicial gang evidence, the shootings would “have been properly viewed as spontaneous and reactive and unrelated to any larger scheme or gang association .…” As discussed above, we strongly disagree with defendant’s characterization of the evidence. Moreover, we find there was ample evidence, even absent the gang evidence, that defendant conspired to kill the officers and had the requisite intent to maim. Therefore, we find his prejudice argument unpersuasive.
In addition, the court gave the jury CALCRIM No. 1403, on the limited purpose of the gang evidence as follows:
“You may consider evidence of gang activity only for the limited purpose of deciding whether:
“--The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements, and special circumstances allegations charged;
“OR
“--The defendant had a motive to commit the crime charged;
“OR
“You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.
“You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”
We presume the jury followed this instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
V. Response to jury question
Finally, defendant argues that the court’s response to a jury question about the gang allegations denied him due process. We agree with respondent that, by failing to object, defendant forfeited his right to appellate review and that, in any event, defendant’s argument has no merit.
During deliberations, the jury sent a note to the court which requested the testimony of the prosecution and defendant gang experts, and posed the following question:
“Under [CALCRIM No.] 1401, element 1 states defendant committed the crime for the benefit of/ … in association w/a criminal street gang. Question: Does the term ‘criminal street gang’ also mean ‘gang member’?”
Outside the presence of the jury, the court told the prosecutor and defense counsel how it planned to respond to the jury’s question: “And I’m going to refer them back to the definition of criminal street gang and ask them, ‘Does that answer your question?’ If they say no, I’ll say then write out more specifically what your question is.” Both attorneys assented to the court’s planned response, and the jury did not seek further clarification thereafter but shortly returned its verdict against defendant.
Now defendant contends the court should have answered “no” to the jury’s question.
We initially conclude that defendant waived his right to object to the court’s response to the jury’s inquiry as a result of his trial counsel’s acquiescence with the court’s proposed response. Our conclusion is supported by People v. Rodrigues (1994) 8 Cal.4th 1060 (Rodrigues). In Rodrigues, our Supreme Court reviewed a defendant’s claim that the court had not sufficiently responded to a jury inquiry, although the trial court’s response had been suggested and consented to by the defendant’s trial counsel. The court stated, “Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived.” (Id. at p. 1193.)
Our Supreme Court has made clear in cases following Rodrigues, supra, 8 Cal.4th 1060, that Rodrigues’s waiver holding applies to circumstances when counsel merely agrees with the court’s response to a jury inquiry or fails to seek further clarification. (People v. Marks (2003) 31 Cal.4th 197, 237 [citing Rodrigues in rejecting a defendant’s contention that a court’s response to a jury inquiry regarding its instructions was incorrect and stating, “if defendant favored further clarification, he needed to request it. His failure to do so waives this claim”]; People v. Hughes (2002) 27 Cal.4th 287, 402 [rejecting a claim that the court gave an insufficient response to a jury inquiry about deadlock, stating “this claim is waived by defense counsel’s agreement with the trial court that informing the jury of the consequences of a deadlock would have been improper,” and citing Rodrigues]; see also People v. Bohana (2000) 84 Cal.App.4th 360, 373 [the court, citing Rodrigues, held with regard to a jury inquiry about its instructions, “[w]here, as here, appellant consents to the trial court’s response to jury questions during deliberations, any claim of error with respect thereto is waived”].)
However, even if waiver had not occurred here, the court’s response to the jury’s inquiry was well within its discretion. A court’s obligation to respond to jury questions during deliberations is governed by section 1138. Section 1138 provides, in pertinent part: “After the jury have retired for deliberation, … if they desire to be informed on any point of law arising in the case, … the information required must be given….” According to our Supreme Court, this language “imposes on the court the ‘primary duty to help the jury understand the legal principles it is asked to apply.’” (People v. Cleveland (2004) 32 Cal.4th 704, 755, citing People v. Beardslee (1991) 53 Cal.3d 68, 97.) “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 to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] The trial court [may be] understandably reluctant to strike out on its own. But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee, supra, 53 Cal.3d at p. 97.)
We find no violation of the trial court’s duty here. “When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury’s inclination.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) This is especially true where a question has factual, in addition to legal, implications. (See People v. Briscoe (2001) 92 Cal.App.4th 568, 588-590 [question concerning whether robbery at gunpoint constituted provocative act in and of itself, properly treated as factual question; hence, trial court did not err by referring jury to applicable instruction rather than answering in the negative].) More importantly, the original instructions given here were full and complete and defendant does not contend otherwise. (Compare People v. Gonzales (1999) 74 Cal.App.4th 382, 390-391 [trial court erred by simply rereading previously given instructions which were inadequate].) The court did not simply refer jurors to the myriad instructions already given; instead, it pointed them to the instruction that was directly applicable to the area concerning which the jurors had expressed confusion, thereby focusing their attention on the pertinent principles of law. CALCRIM No. 1401 correctly defined a criminal street gang, in part, as “any ongoing organization, association, or group of three or more persons, whether formal or informal .…” (Italics added.) We presume the jury followed this instruction and reject defendant’s suggestions to the contrary.
DISPOSITION
The judgment is affirmed.
WE CONCUR, WISEMAN, Acting P.J.,CORNELL, J.
Subdivision (f) reads: “As used in this chapter, ‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in … subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”
Subdivision (e) reads in part: “As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons .…”