Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. FSB053188, John Tomberlin, Judge.
Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of San Bernardino County.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Michael Barnett, Jr.
Alan S. Yockleson, under appointment by the Court of Appeal, for Defendant and Appellant Sinque Morrison.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, ACTING P. J.
A jury convicted Michael Barnett, Jr., of second degree murder and Sinque Morrison of first degree murder for the senseless shooting death of 11-year-old Mynisha Crenshaw (count 1), who died in a fusillade of bullets defendants and their cohorts fired into the wrong apartment in a mistargeted, retaliatory gang strike. The jury also convicted the duo of two counts of attempted murder for seriously wounding the victim’s 14-year-old sister and for earlier mistargeting a compatriot just before the fatal barrage (counts 2 and 3). The jury also convicted defendants of conspiracy (count 4) and shooting at an inhabited dwelling, and found gun use and gang enhancements to be true on all counts against both defendants. (Pen. Code, §§ 186.22, subd. (b)(1), 12022.53, subds. (b)-(e)(1); all further undesignated statutory references are to the Penal Code unless otherwise noted.)
On appeal, Morrison contends the trial court erred in denying his pretrial motion to relieve counsel (People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden)), and he also files a related habeas petition alleging ineffective assistance of counsel because his attorney failed to locate allegedly exculpatory evidence suggesting Morrison ceased associating for a time with his gang, “Pimps, Playboys, Hustlers and Gangsters” (PPHG). Defendants jointly assert numerous other contentions, including that the trial court erred in failing to bifurcate the gang enhancement allegations for a separate trial from the substantive charges, that the trial court erred in permitting an incompetent codefendant to testify against them, and they challenge the sufficiency of the evidence to corroborate the testimony of former codefendants. They also raise a host of instructional challenges, contending the trial court erred in instructing the jury no proof of motive was required, erred in failing to instruct the jury concerning duress or voluntary manslaughter, and erred in instructing the jury concerning the offenses of brandishing a firearm and conspiracy. Defendants also contend imposition of lengthy gun enhancements on aiders and abettors in gang crimes violates equal protection and due process. As we explain, none of these contentions has merit.
Finally, defendants assert, and the Attorney General agrees, the 10-year sentence enhancements (§ 186.22, subd. (b)(1)(C)) the trial court imposed and stayed on counts 1 through 4 must be stricken and replaced with gang enhancement conditions requiring a 15-year minimum parole eligibility period (§ 186.22, subd. (b)(5)). We agree this correction is required (People v. Lopez (2005) 34 Cal.4th 1002, 1007 (Lopez)) and exercise our discretion to modify the judgment accordingly (§ 1260). As modified, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
PPHG member Barry Jones’s shooting death precipitated the events in this case. Jones, defendant Morrison, and PPHG affiliate Alonzo Monk sought to purchase marijuana at Lynwood Apartments in San Bernardino, but became embroiled in a gun battle with members of a rival gang, the Rolling 60’s. Jones was shot and died at a nearby hospital.
Jones’s cousin and fellow PPHG member, Shawn Davis, learned of Jones’s death and found Morrison and other PPHG members at the home of PPHG’s leader, Sidikiba Greenwood. Morrison explained he panicked after the shooting and drove around with Jones in the car for awhile before dropping him off at the hospital.
Within days, Jones’s family held a car wash to raise money for his burial. PPHG members attended the car wash, including Morrison and Barnett. According to Davis, Morrison blamed the Rolling 60’s for Jones’s death and urged revenge, stating, “[W]e was [sic] going over there [to] take care of business, and Niggers going to get killed....” Greenwood similarly exhorted the group, “[O]ur homie just got killed. You guys are just going to let this ride?” Someone mentioned a so-called four-day rule among PPHG members, requiring retaliation within four days.
Davis called Monk after the car wash to meet at Greenwood’s home for further planning. According to Monk, Morrison and Barnett were at the meeting, along with Patrick Lair and several other PPHG members. Lair testified Morrison concluded, “[W]e can’t let it ride. We can’t let them get away with killing Little J-Blue, ” a reference to Jones. Monk armed Morrison with a semiautomatic weapon and the.357-caliber revolver Jones used in the fatal shootout. Morrison or his brother departed the meeting briefly and returned with a duffle bag containing an assault rifle and a hunting rifle. When the assault rifle fell to Harold Phillips, Monk questioned his ability to handle the weapon, but Morrison threatened, “He better know how to use it” or Morrison would “shoot him in his head if not.” Davis testified Greenwood armed him and Lair with.45 caliber semiautomatic weapons before informing the PPHG cohort it was time to “[g]o take care of your business.” The men piled into four different cars; according to Monk, everyone was armed and prepared to retaliate for Jones’s death.
One of the eventual victims, Jaynita McWilliams, testified she and two of her sisters, including Mynisha, noticed several cars filled with “a lot” of men drive slowly past them as they walked home to Lynwood Apartments. McWilliams relayed the incident to her mother, who warned the girls to stay in the apartment.
In the meantime, Morrison arrived at the apartments in the lead car. A resident of the apartment complex observed a group of eight men, dressed in black with rags covering their faces, exit the vehicles. One of the men pulled weapons from a vehicle’s backseat and distributed them. The group then proceeded into the apartment complex. Another resident looked down from her apartment and saw the men, all armed, walking through the complex. Barnett, who had separated from the group to serve as a lookout, returned on the run, stating an armed man was approaching. A shot rang out from Barnett’s group. Davis had fired his weapon at the approaching man, who turned out to be Davis’s cousin, Lucky Kelly. Kelly was unharmed, but the group panicked and returned to their vehicles. Some departed, but the remainder, including Morrison and Barnett, acted swiftly when a PPHG member, Marquis Taylor, ran up to the group claiming apartment 22 belonged to the Rolling 60’s.
Morrison, Barnett, and several others made their way to apartment 22, lined up in formation outside the apartment, and fired a barrage of up to 30 shots into the apartment. Investigators later recovered.45-caliber and nine-millimeter casings and a live.22-caliber round at the apartment. Eleven-year-old Mynisha Crenshaw suffered four gunshot wounds, including a fatal shot that passed through her chest, right lung, heart, aorta, and pulmonary artery. She bled to death. Her sister Jaynita suffered a gunshot that shattered the bones in her right arm, requiring a prosthesis and continuing therapy.
The PPHG members returned to Greenwood’s home as he had instructed them. Lair, who saw Morrison and Barnett standing in formation outside apartment 22 and saw Morrison fire into the apartment, had been left behind by the group. Morrison “discipline” Barnett and another PPHG member by inflicting a beating on them for leaving Lair behind. Lair took a cab home.
In a police interview, Barnett admitted his lookout role at the scene and corroborated the attack on apartment 22, including shots from an assault rifle, and he confirmed the earlier shot fired at Kelly. He also admitted his presence at the carwash and knowledge of PPHG discussions at Greenwood’s house about avenging Jones’s death.
Lair and Davis disclosed threats against their lives and against close relatives if they testified. Lair received a “kite” or note in prison that warned him, “[Y]ou[’re] dead if you get on the stand and we know that you gave a statement [and] that you’re supposed to get on the stand against us... if we can’t get you, we are going to kill someone close to you... we’re going to kill one of your family members. We’re going to kill your mom, somebody.” The kite instructed Lair to “play crazy when you get on the stand. That way you might get lucky and be able to keep your deal....”
One of the sisters walking home with Jaynita before the shooting identified Morrison as an occupant in the lead car of the caravan that passed her and her sisters. The prosecution’s gang expert, Detective Travis Walker of the San Bernardino Police Department, identified Morrison as an “original gangster” who joined PPHG around 1986 or 1987, near the time of its founding, and climbed to the top tier of PPHG’s hierarchy. The expert further explained that Morrison’s presence at Jones’s slaying entailed a special duty to participate in the retaliatory strike. The police began searching for Morrison within 11 hours of the slaying, but he had fled to Georgia, where he was arrested three weeks later.
Walker opined that if eight to 12 armed PPHG members traveled to rival gang territory four days after a PPHG had been killed in the same neighborhood, it was foreseeable someone would die. The increased notoriety from a successful retaliatory strike, particularly in an armed advance into another gang’s turf and in killing a rival gang member, would benefit the gang, whereas failing to retaliate would show weakness and invite further predation by other gangs. But because PPHG killed an innocent girl, PPHG’s reputation actually suffered.
II.
DISCUSSION
A. Marsden Motion and Habeas Petition
Morrison contends the trial court erred by denying his request for new appointed counsel the week before trial. (See Marsden, supra, 2 Cal.3d at p. 123 [defendant may seek to relieve and replace appointed counsel based on inadequate representation or conflict].) We review a trial court’s Marsden ruling for abuse of discretion (People v. Vera (2004) 122 Cal.App.4th 970, 979), and find none here.
At the Marsden hearing, Morrison asserted his attorney, Ronald Powell, was not prepared for trial because he failed to interview several alibi witnesses and failed to locate a gang identification card from an unspecified police agency stating Morrison had stopped “gang banging” a few years before the offenses charged in this case. In response, Powell explained he interviewed and planned to call at trial one of the alibi witnesses, Shawnlea Morrison, but while he “kept tabs” on two others, Tyshon Harris and Marquis Taylor, who were active PPHG members alleged to have participated in the shooting, Powell placed little stock in their potential value as defense witnesses. In particular, calling active PPHG members posed the risk of contradicting Morrison’s defense he no longer associated with the gang. Powell had not located any gang card establishing Morrison was no longer an active gang member, but Powell placed on the defense witness list a jail intake deputy to testify concerning Morrison’s erroneous gang classification during booking on the present offenses. The trial court denied the Marsden motion because Powell was ready to present Morrison’s alibi defense and to contest Morrison’s current gang involvement.
On appeal, Morrison claims the trial court should have discharged and replaced Powell because he was not ready to present a strong alibi defense. Specifically, Morrison infers the jury may have discounted Shawnlea Morrison’s testimony because she was Morrison’s niece, and Powell should have called other witnesses to bolster her trial testimony Morrison was at home with his girlfriend at the time of the attack. But neither this court nor the trial court may second-guess trial counsel’s tactical decision not to call Harris or Taylor, who posed credibility problems and would undermine Morrison’s attempt to distance himself from PPHG. (See People v. Nakahara (2003) 30 Cal.4th 705, 719 [tactical decisions furnish no basis for Marsden discharge].)
Additionally, the appellant bears the burden to demonstrate reversible error (Denham v. Superior Court (1970)2 Cal.3d 557, 564 (Denham)) and nothing at the time of the Marsden hearing or on appeal suggests Harris or Taylor would have waived their Fifth Amendment rights, let alone that they would exonerate Morrison. Similarly, while Morrison mentioned the names of two potential female alibi witnesses at the Marsden hearing, he never described below, or on appeal, who these women were or what either would say. Neither woman was Morrison’s girlfriend (Crystal Kelly), which posed a potential conflict with Shawnlea’s testimony, since she placed Morrison at home with Kelly. On this record, we cannot say the trial court erred in failing to discharge Powell for alleged failures concerning Morrison’s alibi defense.
In conjunction with his appeal, Morrison has filed a habeas corpus petition aimed at the Marsden issue, attaching the missing gang card as an exhibit. The exhibit purports to be a City of San Bernardino “Gang Identification Card” arising from a 2001 traffic stop, and includes a check box that lists Morrison’s “Memb. Status” as “Inactive.” But Morrison provides no foundation for the gang card, such as whether its contents were based on Morrison’s bare assertions at the time of the stop. In any event, even assuming Powell should have discovered the card, it furnishes no support for Morrison’s claim of Marsden error or ineffective assistance of counsel. In short, there is no reasonable probability of a different outcome had Powell located the card, given the overwhelming more recent evidence of Morrison’s active gang participation. Photographs from 2003 and 2004 depicted Morrison displaying PPHG tattoos and showed him associating with PPHG members. Indeed, a 2004 video showed him celebrating “Hood Day” with fellow PPHG members. Numerous gang-member and nonmember witnesses identified Morrison as an active PPHG member. Accordingly, Morrison fails to meet his burden (Denham, supra, 2 Cal.3d at p. 564) to show he was prejudiced by counsel’s performance or the trial court’s decision not to relieve counsel at the Marsden hearing. There is no reversible error.
B. The Trial Court Did Not Err in Declining to Bifurcate the Gang Enhancements
Defendants assert the trial court erred by rejecting their pretrial motion to minimize admission of gang evidence by bifurcating the proceeding for separate trials on the substantive charges and on the gang enhancements attached to each count. (§ 186.22, subd. (b)(1).) Admission or exclusion of evidence is committed to the trial court’s sound discretion (People v. Waidla (2000) 22 Cal.4th 690, 717), as is the question of bifurcation (People v. Hernandez (2004) 33 Cal.4th 1040, 1048). The trial court did not abuse its discretion in denying defendants’ motion.
All relevant evidence is admissible unless excluded under the federal or California Constitutions or by statute. (Cal. Const., art. I, § 28; Evid. Code, §§ 350-351; People v. Scheid (1997) 16 Cal.4th 1, 13.) Here, the gang evidence and expert testimony concerning gangs were relevant and therefore admissible to explain defendants’ otherwise baffling assault on apartment 22 as a retaliatory gang strike. (See, e.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369 [retaliatory killing]; In re Sergio R. (1991) 228 Cal.App.3d 588, 597 [innocent bystander killed].) “Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168 (Samaniego); see People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 (Gonzalez) [“‘because a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence’”]; accord, People v. Martin (1994) 23 Cal.App.4th 76, 81-82 [gang activity or membership admissible as to motive, though damaging to defense].)
Additionally, as the trial court observed, the gang evidence explained the witnesses’ fear of retaliation and therefore was admissible. (People v. Harris (1985) 175 Cal.App.3d 944, 957.) And because “the ‘culture, habits, and psychology of gangs’... are ‘“sufficiently beyond common experience [such] that the opinion of an expert would assist the trier of fact, ”’” gang expert testimony is generally authorized where a gang enhancement is alleged. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512 (Garcia).) “[A]n expert may properly testify about the size, composition, or existence of a gang; ‘motivation for a particular crime, generally retaliation or intimidation’; and ‘whether and how a crime was committed to benefit or promote a gang.’” (Ibid., accord, Gonzalez, supra, 126 Cal.App.4th at p. 1550 [“Expert testimony repeatedly has been offered to show” gang culture, including motivation and manner in which offenses promote the gang].) Accordingly, the trial court did not err in admitting the gang evidence based on its relevance to the substantive charges. (See People v. Hernandez, supra, 33 Cal.4th at p. 1051 [gang evidence “buttress[ed] such guilt issues as motive and intent”]; see also Gonzalez, at p. 1551 [“The law does not disfavor the admission of expert testimony that makes comprehensible and logical that which is otherwise inexplicable and incredible”].)
Nor did the trial court err in denying defendants’ bifurcation motion. Our Supreme Court observed in People v. Hernandez, supra, 33 Cal.4th at page 1048, that because a “criminal street gang enhancement is attached to the charged offense, ” it “is, by definition, inextricably intertwined with that offense.” Accordingly, there is generally scant basis for bifurcation. (Ibid.) The high court explained: “[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.]” (Id. at pp. 1049-1050.) Consequently, “[t]o 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.” (Ibid.; cf. People v. Marshall (1997) 15 Cal.4th 1, 28 [cross-admissibility of evidence “ordinarily dispels any inference of prejudice” from joinder of charges].)
People v. Hernandez recognized the possibility that “gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) This is not such a case. Cases posing the risk of undue prejudice rarely arise because, based on the public policy favoring unitary, efficient trials, a court may still deny bifurcation even when “some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself....” (Id. at p. 1050.) Accordingly, a defendant bears the burden of demonstrating the necessity of bifurcation. (See ibid.) As we explain, defendants failed to meet that burden here.
Defendants contend the trial court’s failure to bifurcate resulted in an “expanse of gang evidence” that violated due process and their right to a fair trial because it constituted “‘overkill.’” Defendants do not identify where the admission of gang evidence allegedly crossed a constitutional line, but they note the jury heard “over and over again” that they were gang members. Defendants’ challenge fails at the outset for two reasons. First, we evaluate the trial court’s bifurcation motion on the record at the time of the motion (People v. Calderon (1994) 9 Cal.4th 69, 81, fn. 6), which preceded the admission of any evidence. At that time, the close interrelation of the gang evidence to guilt issues justified denying the motion. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Second, defendants failed to renew their motion or object to any particular gang-related evidence at trial. Having failed to object, defendants forfeited their evidentiary challenge on appeal. (Evid. Code, § 353; see People v. Morris (1991) 53 Cal.3d 152, 187-188 [requiring party to object to specific evidence “allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal”], disapproved on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) And having failed to renew their bifurcation motion upon admission of the evidence, defendants failed to bring their present contention to the trial court’s attention.
Nevertheless, defendants assert admission of the evidence without bifurcating the enhancements deprived them of due process. We address the claim. (Cf. People v. Mendoza (2000) 24 Cal.4th 130, 162 [a ruling joining charges that is proper at the time it is made may require reversal if defendant demonstrates joinder “‘actually resulted in “gross unfairness” amounting to a denial of due process’”]; see also People v. Turner (1984) 37 Cal.3d 302, 313 [“After trial, of course, the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law”], disapproved on another point in People v. Anderson (1987) 43 Cal.3d 1104, 1149.)
Defendants’ contention that admission of specific gang evidence required bifurcation is flawed. Defendants cite as particularly “egregious” the fact that “the jury heard about other gangs whose members were not charged in this case such as the Rolling 60s, ” and defendants also fault the gang expert for referencing the “Bloods and Crips, detail[ing] their long-standing rivalry... and approximate[]... number of active members for each.” The evidence was relevant, however, to illuminate the power of gang rivalry for the jury, especially PPHG’s rivalry as a Crip subset with the Rolling 60’s. In any event, contrary to defendants’ claim, this information was brief, encompassing only a few pages among thousands of pages of testimony, and we discern no error or prejudice.
Defendants complain the gang expert’s testimony duplicated topics covered by gang member lay witnesses, such as gang hierarchy, “Hood Day” festivities, car wash fundraising, and the necessity of retaliation. But expert testimony is proper about gang matters beyond the common experience of most jurors. (Garcia, supra, 153 Cal.App.4th at p. 1512.) Additionally, in denying the charges, defendants required the prosecution to carry its burden of proof beyond a reasonable doubt. In meeting this formidable burden, the prosecution was not required to rely solely on particular witnesses or to proceed in a manner least damaging to defendants. (See People v. Karis (1988) 46 Cal.3d 612, 638 (Karis) [under Evidence Code section 352, exclusion of evidence for undue “prejudice” does not bar “damaging” evidence; the terms are not synonymous].) Moreover, the necessity of corroborating codefendant testimony (§ 1111) meant the prosecutor could not rest on the testimony of other PPHG members. There was no error in admitting the expert’s testimony.
Defendants also observe the gang evidence on the substantive charges could have been streamlined by omitting the gang expert’s testimony concerning “‘predicate priors’ relevant to the gang enhancements only (which would have been unnecessary should bifurcation have been granted)....” As explained in People v. Hernandez, however, bifurcation was not required: a “criminal street gang enhancement is attached to the charged offense” and, therefore becomes, “by definition, inextricably intertwined with that offense.” (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) True, Hernandez recognized the possibility that because requisite evidence of predicate gang activity “need not be related to the crime, or even the defendant, ... evidence of such offenses may be unduly prejudicial, thus warranting bifurcation.” (Id. at p. 1049.) But here the predicate priors, which included arson, cocaine trafficking, and murder, did not require bifurcation. The charged offenses — including murder and attempted murder — were as serious or more serious than PPHG’s antecedent crimes, and defendants point to nothing about the earlier offenses that was “unusually likely to inflame” a jury. (Cf. Verzi v. Superior Court (1986) 183 Cal.App.3d 382, 386, 388 [upholding denial of severance of charges where neither the charged rape or burglary were “‘“particularly brutal, repulsive or sensational”’”].)
Nor was bifurcation required based on any of the other gang evidence the trial court admitted. In addition to discussing prior criminal conduct by PPHG members, the expert properly testified about matters of gang culture beyond the common experience of most jurors, including PPHG’s hierarchical structure, gang monikers, tattoos, and affiliation activities. (Garcia, supra, 153 Cal.App.4th at p. 1512.) The testimony was relevant to demonstrating PPHG’s gang identity and defendants’ roles within a violent criminal street gang, tending to show their motive, knowledge, and intent in a retaliatory strike against a rival gang. Thus, an objection to any particular gang evidence would not have required bifurcation to admit the evidence on the gang enhancement. There was no error in denying bifurcation.
Defendants’ reliance on People v. Albarran (2007) 149 Cal.App.4th 214 is misplaced because, as defendants concede, the prosecution there failed to present any evidence the crimes were gang-motivated, other than unsupported expert opinion. In contrast, the gang evidence here was central to explaining the reality of witness intimidation and the retaliatory origin and nature of what would otherwise be an incomprehensible crime. Defendants’ failure to object under Evidence Code section 352 that any gang evidence was cumulative forfeits their claim the evidence was cumulative. (Evid. Code, § 353; In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) In any event, the claim fails on the merits because, as noted, the fact that relevant and admissible evidence may prove damaging to the defense does not warrant its exclusion as overly prejudicial under Evidence Code section 352. (Karis, supra, 46 Cal.3d at p. 638.) Defendants’ challenge to admission of gang evidence is meritless.
C. The Trial Court Did Not Err in Concluding Lair Was Competent to Testify
Defendants contend the trial court erred in rejecting their challenge asserting their former codefendant, Lair, was incompetent to testify. Defendants assert the trial court was “on notice of Mr. Lair’s probable incompetence.” Specifically, defendants argue “Lair’s competency as a witness was clearly questionable considering that he not only lied at an earlier proceeding but also likely suffered from a mental illness that prevented him from appreciating the difference between [the] truth and a lie.” Consequently, the trial court should have disqualified him as a witness.
As a general rule, “every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” (Evid. Code, § 700.) But individuals who are “[i]ncapable of understanding the duty of a witness to tell the truth” (Evid. Code, § 701, subd. (a)(2)) are incompetent to testify (People v. Anderson (2001) 25 Cal.4th 543, 572-573; People v. Mincey (1992) 2 Cal.4th 408, 444). Determining a witness comprehends his or her obligation to tell the truth is a preliminary fact committed to the trial court’s sound discretion. (Anderson, at p. 573.) The party challenging the witness bears the burden of establishing the witness’s lack of competence (ibid.), and must do so by a preponderance of the evidence (People v. Farley (1979) 90 Cal.App.3d 851, 869).
In defendants’ view, they met the preponderance standard, but they overlook the appellate posture in which we presume the trial court’s rulings are correct. (Denham, supra, 2 Cal.3d at p. 564.) In essence, defendants challenge the sufficiency of the evidence to support the trial court’s threshold determination of witness competency. We review the evidence in the light most favorable to the trier of fact’s conclusion. (People v. Elliot (2005) 37 Cal.4th 453, 466 (Elliot); see also People v. Lewis (2001) 26 Cal.4th 334, 360 [preliminary fact of witness competency is solely for trial court to decide].) An appellate court may not reassess conflicts in the evidence, nor substitute on appeal its judgment for the trial court’s. (People v. Bean (1988) 46 Cal.3d 919, 932-933 (Bean); People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).)
Indeed, when, as here, defendants shouldered the burden of proof to disqualify a witness, the question for the reviewing court becomes whether the evidence compels a finding in their favor as a matter of law. (See Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) In other words, was their evidence (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding....” (Roesch, at p. 571.) Defendants do not meet that standard. As we explain, the trial court reasonably could conclude Lair was malingering before the first trial to avoid testifying or to distract from suspicions he planned to commit perjury, and defendants failed to establish in the present trial that Lair could not grasp the duty to testify truthfully.
Lair pleaded guilty on the eve of the first trial to voluntary manslaughter and attempted voluntary manslaughter. The plea terms included Lair’s promise to testify truthfully. The trial court conducted a hearing after Lair’s attorney notified the trial court Lair made statements suggesting he intended to commit perjury.
We summarized the hearing in our earlier opinion concerning codefendants Sidikiba Greenwood and Harold Phillips (People v. Greenwood (June 30, 2010, G041203) [nonpub. opn.]), which we judicially notice. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) Unattributed quotations in the following discussion are from that opinion.
Lair denied at the hearing that he harbored plans to lie. He revealed to his attorney he heard “voices” in his head: “The voices tell me to lie, but I won’t, I tell the truth.” Lair identified the voices as “Charles and Bill and James, ” claimed “[t]hey kind of been with me since childhood” and added that, just before the hearing, “They was [sic] trying to tell me to lie, I told them I couldn’t, I have to tell the truth.” Lair asserted he had been diagnosed with a mental condition 15 years earlier in juvenile hall, but he did not know the name of his ailment. He appeared to deny it was schizophrenia, stating, “I’ve heard [of schizophrenia] before, but I don’t know nothing about it.” Outside of custody, he took medication for his condition sporadically. But he admitted he received and took his medication regularly at the jail, which “keep[s] the voices down”; indeed, “Charles and James and Bill used to hang out more than what they hang out now.” Lair affirmed he understood “the difference between telling the truth and not telling the truth.”
Asked on cross-examination whether he ever hallucinated, Lair responded, “Oh, you’re talking about the little green guy in the tuxedo?” Lair elaborated: “[H]e hangs out a lot. He’s about 150 years old. I don’t know how he got that old. I guess I’m not the only gig he has.” Lair volunteered that “Charles and James don’t like Bill, because they think Bill is gay.”
As the hearing proceeded, the trial court had the court clerk telephone the jail for information about Lair’s medications. The call revealed, as the trial court stated for the record, that Lair took a nightly 30-milligram dose of Zyprexa, a “psychotropic medication for depression, ” and the same amount of Remeron, “again [a] psychotropic medication” that “improves memory.”
Lair’s attorney denied any concerns his client was mentally incompetent. Lair’s attorney answered “No, ” when the court asked again, “[Y]ou have not seen any indication of 1368?” (See § 1368 [detailing procedures if doubt arises as to defendant’s sanity].) Lair’s attorney offered to explain in chambers, if necessary, “what my investigator and I did concerning that [issue].” The trial court declined, accepting counsel’s assessment “as [an] officer of the [c]ourt”; nor did the defense request the in chambers explanation as a prerequisite to Lair testifying.
The trial court examined Lair. The court asked Lair to explain “why you told your attorney that if you take the stand you’re going to lie?” Lair backtracked, explaining “it may have come out like that” but he “meant to say I remember things differently now.” For example, he stated his jail medication regimen helped him remember Greenwood did not give him a gun the night of the shooting, contrary to what he had told a detective. He claimed he now realized “Bill” had told him to lie to the detective.
After further cross-examination by counsel, the trial court excused Lair from the courtroom. The court concluded Lair had put on a “show” that made a “mockery” of the proceedings. Finding Lair could not be trusted to testify truthfully, the trial court vacated Lair’s plea bargain the next day. Before doing so, the court observed: “Does he suffer from a mental illness or not? I don’t know. That’s not what I’m evaluating or making factual findings [on], Counsel. I have no idea. Somebody threw the word, schizophrenia, et cetera. I have an attorney who had this gentleman plea, and I asked him directly right now is he [section] 1368 and he says no. And I can vouch for that myself. I took his plea. Does he have some mental problems? With the indications that I have, probably.”
But the court explained, “The threshold [for] being a witness is very low. All you need to know is the difference between telling the truth and a lie and the consequences, that’s all.” The court informed defendants they could have more time to investigate Lair’s condition and offered to entertain motions to discover records potentially covered by patient confidentiality, stating, “[Y]ou can ask for getting into those issues.”
A month later, still in the midst of the first trial, Lair entered a new plea agreement with the prosecutor, with a renewed pledge to testify truthfully. Advised that Lair was being transported to the court, Phillip’s attorney noted, “I’ll probably be asking for a continuance if he is going to be a witness. I hate to do that. But we’re just going — we’re going to have to look into his background and his mental health.” The court stated, “[C]ertainly I will allow you to look into that history, ” and reiterated at the close of the hearing, “If you have any evidence that there is actually some mental issues, certainly I will consider it.” Lair did not testify at the first trial.
Before Lair testified at Greenwood’s and Phillip’s second trial, the trial court conducted a hearing to determine his competence as a witness. When the court asked Lair if he had an agreement to testify and if he understood he had to tell the truth, Lair responded affirmatively to both questions. Addressing counsel, the court inquired, “Based upon the out of presence discussions, do you feel the [c]ourt needs any more questions on the issue of capacity?” The prosecutor and each defense attorney responded, “No.”
In the present trial, defendants did not object to Lair’s competence as a witness, but instead attacked his credibility on cross-examination, highlighting his bizarre testimony at the plea revocation hearing, his use of psychotropic medication, and loss of his initial plea bargain over concerns he would commit perjury. Because defendants made no attempt to disqualify Lair below, the issue is forfeited (Evid. Code, § 353). Their attempt to salvage the witness qualification issue as a sua sponte duty of the court or under the guise of ineffective assistance of counsel fails.
Specifically, defendants contend Lair’s testimony at the plea revocation hearing in the first trial demonstrated a mental problem that satisfied, in a self-executing fashion, their burden to establish his incompetence as a witness. According to defendants, this evidence established trial counsel should have sought Lair’s disqualification instead of simply undermining his credibility. Alternatively, defendants assert the trial court erred by not conducting a sua sponte inquiry into Lair’s mental competence. Defendants reason that Lair’s initial testimony raised a doubt about his mental condition that should have triggered further investigation though defendants did not attempt to disqualify Lair. We are not persuaded.
The trial court did not have a sua sponte duty to confirm Lair’s mental competence. While the trial court has the duty, if a doubt arises, to determine a defendant’s mental competence (§ 1368), defendants point to no authority that the trial court must make a similar determination for a witness. Rather, the party questioning a witness’s competency has the burden to demonstrate his or her inability to grasp the duty to testify truthfully. (People v. Anderson, supra, 25 Cal.4th at p. 573.) The party willing to place on the stand a witness who surmounts this low hurdle, but suffers from memory or mental issues, takes the risk inherent in doing so, since a witness’s ability to perceive, recall, and accurately recount events is grist for potent cross-examination. (See People v. Gurule (2002) 28 Cal.4th 557, 591-592 (Gurule).)
Moreover, the record does not support imposing on the trial court a sua sponte responsibility to inquire into Lair’s mental health here. To the contrary, ample evidence supports the trial court’s conclusion Lair was “faking Bill, Joe and Bob.” Accordingly, Lair’s medications were, as the trial court noted, “irrelevant” at the plea revocation stage because, absent the plea agreement, it appeared he was not going to testify. But recognizing circumstances could change and that the prosecutor eventually might call Lair as a witness, as later occurred after his new plea agreement, the court expressly reminded the defense: “[I]f he does, ... Counsel, I will allow you to look into his medications, et cetera. I’m not stopping you from that.” The defense may have chosen not to pursue the matter later because Lair’s counsel represented he investigated Lair’s purported mental issues and concluded he was competent, or because the record suggesting Lair’s proclivity for perjury sufficed to undermine him as a witness. In any event, defendants cannot now foist on the trial court a sua sponte investigatory duty when it was their burden to demonstrate Lair’s incompetence. (See People v. Cudjo (1993) 6 Cal.4th 585, 622, fn. omitted [rejecting claim “that the trial court should have inquired into the witness’s qualifications on its own”].)
We also reject defendants’ contention that Lair’s testimony at the hearing in the first trial was, by itself, sufficient to demonstrate memory or mental problems that disqualified him as a witness once he renewed his plea bargain. The trial court reasonably could conclude Lair “play[ed the] role of a crazy person, ” as Lair later admitted, and nothing in the record on appeal requires the conclusion Lair did not understand the duty to tell the truth.
Similarly, asserting ineffective assistance of counsel (IAC) does nothing to establish Lair was incompetent to testify. The record shows Lair took medication for depression and to improve his memory, not for schizophrenia or a similar mental illness. Defendants presented nothing below, or on appeal, or in Morrison’s habeas petition to suggest anything but a tactical decision in trial counsel’s decision not to attempt to disqualify Lair. Counsel reasonably could conclude evidence Lair was malingering, including the proffered assessment by Lair’s own attorney, was too strong to attack his competency outright, and instead a reasonable tactic was to emphasize his demonstrated history of lying. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [appellate IAC claim fails unless there could be no satisfactory explanation for counsel’s conduct].)
At bottom, the evidence supports the conclusion Lair fabricated his purported mental health problems. He admitted as much at trial. His attorney in the first trial investigated the matter and attested he was mentally competent. He took medications for conditions that did not include schizophrenia or similar disorders. Nothing established Lair was under a doctor’s or a court’s order to take the medication or that failure to do so presented a risk of mental decompensation or otherwise might reduce his mental functioning below witness qualification standards. He affirmed he understood the difference between the truth and a lie — an affirmation bolstered, paradoxically, by his recognition and admission he lied in the past. Consequently, the trial court did not abuse its discretion in concluding Lair had the capacity to “understand[]the duty of a witness to tell the truth” (Evid. Code, § 701, subd. (a)(2)) and that Lair therefore qualified to testify (ibid.). The trial court, in permitting a witness to testify, does not warrant that the witness will tell the truth. It remains the parties’ obligation to ferret out falsehood through the trial process, including cross-examination. (See, e.g., Gurule, supra, 28 Cal.4th at pp. 591-592.) In sum, because the evidence does not require the conclusion defendants met their burden to establish Lair’s incapacity as a witness, their appellate challenge is without merit.
D. Ample Evidence Corroborated the Accomplices’ Testimony
Defendants challenge the sufficiency of the evidence to corroborate the accomplice testimony incriminating them in the deadly assault on apartment 22. The challenge fails. “‘The corroborating evidence... must tend to implicate the defendant by relating to an act that is an element of the crime, ’” but the independent evidence “‘may be circumstantial or slight and entitled to little consideration when standing alone....’” (People v. Abilez (2007) 41 Cal.4th 472, 505; see § 1111 [“A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense”].) “‘The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.’” (Abilez, at p. 505.)
Here, the corroborating evidence was more than sufficient. Ample evidence demonstrated defendants’ motive and intent to perpetrate the shootings, their presence and opportunity at the scene to do so, and consciousness of guilt. Each of these categories of independent evidence corroborated their guilt. (See People v. Szeto (1981) 29 Cal.3d 20, 27 (Szeto) [opportunity and retaliatory motive corroborated accomplice testimony concerning gang defendant’s murder and related convictions]; Samaniego, supra, 172 Cal.App.4th at p. 1178 [same]; People v. Vu (2006) 143 Cal.App.4th 1009, 1022 [same]; People v. McDermott (2002) 28 Cal.4th 946, 986 [motive corroborates accomplice testimony]; see also People v. Avila (2006) 38 Cal.4th 491, 569 [presence at conspiracy’s inception and recovery of same-caliber bullet fragments and casings sufficiently corroborative]; see id. at p. 563 [attempt to conceal involvement showed corroborating consciousness of guilt]; In re Pratt (1980) 112 Cal.App.3d 795, 931 [“‘consciousness of guilt... constitutes sufficient corroboration’”].) In particular, Barnett’s admissions he served as a lookout at the scene during Kelly’s shooting and the attack on apartment 22, in addition to being present at the car wash and Greenwood apartment planning sessions, corroborated his guilt. (People v. Garrison (1989) 47 Cal.3d 746, 773 [corroborating evidence “may consist of evidence of the defendant’s conduct or his declarations”].)
Morrison challenges the reliability of the nonaccomplice eyewitness identification placing him at the Lynwood Apartments and at the car wash, but two problems pervade this tack on appeal. First, undermining a particular piece of corroborative evidence or even a whole category is insufficient because only slight corroboration is needed, and here, as noted, there was ample corroboration in numerous categories of evidence. Second, we must view the evidence in the light most favorable to the jury’s verdict. (Elliot, supra, 37 Cal.4th at p. 466.) In essence, Morrison argues the jury should have resolved conflicts in the corroborative evidence in his favor, rather than against him. But it is the jury’s exclusive province to assess the credibility of witnesses, resolve conflicts in the testimony, and weigh the evidence. (Sanchez, supra, 113 Cal.App.4th at p. 330.) The fact the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (Bean, supra, 46 Cal.3d at pp. 932-933.) Accordingly, Morrison’s approach is ill-suited for an appellate challenge and wholly without merit.
Moreover, in addition to the eyewitness testimony and evidence of Morrison’s flight demonstrating consciousness of guilt, Walker’s expert testimony corroborated Morrison’s guilt. Walker explained Morrison’s telephone call instructing his brother to “get at” Davis’s uncle conveyed, in gang terminology, a threat, which further demonstrated a corroborating consciousness of guilt. And Walker also explained the duty that arose for Morrison to avenge Jones’s slaying, since he was present at his death. (See Szeto, supra, 29 Cal.3d at p. 27 [expert opinion evidence sufficient to corroborate accomplice testimony].) Consequently, defendants’ challenge to the sufficiency of the corroborative evidence fails.
E. Motive Instruction
Defendants argue the trial court erred by instructing the jury with an instruction on motive (Judicial Council of Cal. Crim. Jury Instns. CALCRIM No. 370) without specifying the instruction did not apply to the gang enhancement allegation. We disagree.
To the extent defendants’ challenge, raised for the first time on appeal, “merely goes to the clarity of the instruction, ” the challenge is forfeited. (People v. Cleveland (2004) 32 Cal.4th 704, 750.) But we reach defendants’ contention because they also argue CALCRIM No. 370 contradicted the gang enhancement instruction, CALCRIM No. 1401. A contradiction in the jury instructions affects the substantial rights of the defendant (§ 1259), requiring no objection for appellate review (ibid.; People v. Hillhouse (2002) 27 Cal.4th 469, 503 (Hillhouse)).
Defendants’ instructional attack is not novel. People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes) rejected an identical challenge. We find Fuentes persuasive. There, the defendant faced charges of murder, attempted murder, assault, street terrorism, and other crimes involving the use of a firearm, and alleged gang enhancements pursuant to section 186.22, subdivision (b)(1). The trial court in Fuentes, as here, instructed the jury with CALCRIM No. 370, which states: “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.” (Italics added.) The defendant in Fuentes, as here, argued CALCRIM No. 370 contradicted the instruction given for the gang enhancement allegations, CALCRIM No. 1401. This instruction requires the prosecution to prove the defendant “committed or attempted to commit the crime for the benefit of, at the direction of, or in the association with a criminal street gang; [¶] [a]nd, the defendant intended to assist further or promote criminal conduct by gang members.” (Italics added.)
The Fuentes court rejected the defendant’s challenge to CALCRIM No. 370, concluding: “An intent to further criminal gang activity is no more a ‘motive’ in legal terms than is any other specific intent. We do not call a premeditated murderer’s intent to kill a ‘motive, ’ though his action is motivated by a desire to cause the victim’s death. Combined, the instructions here told the jury the prosecution must prove that [defendant] intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. [Defendant] claims the intent to further criminal gang activity should be deemed a motive, but he cites no authority for this position. There was no error.” (Fuentes, supra, 171 Cal.App.4th at pp. 1139-1140.)
The Fuentes court also distinguished People v. Maurer (1995) 32 Cal.App.4th 1121, on which defendants rely. Fuentes reasoned Maurer did not conflict with its conclusion because Maurer addressed section 647.6, punishing acts or conduct “motivated” by an unnatural or abnormal sexual interest in the victim. In distinguishing Maurer, the Fuentes court explained, “Since this offense includes a ‘motivation’ as one of its elements, a jury naturally would be confused by an instruction saying the prosecution need not prove the defendant’s motive.” (Fuentes, supra, 171 Cal.App.4th at p. 1140; see also Hillhouse, supra, 27 Cal.4th at p. 504, original italics [distinguishing Maurer because, “although motive is not generally an element of a criminal offense, ‘the offense of section 647.6 is a strange beast, ’ and it did have a motive as an element — an unnatural or abnormal sexual interest”].)
Here, the trial court did not err in instructing the jury the prosecutor need not prove motive while also instructing the jury the prosecutor must prove defendants had the specific intent to assist, promote, or further criminal conduct by gang members. Motive, intent, and malice are not synonyms — they are distinct mental states. (Hillhouse, supra, 27 Cal.4th at p. 504.) The court properly instructed the jury concerning the intent the prosecutor was required to prove to establish the truth of the street terrorism enhancement. We presume jurors are intelligent people capable of understanding the instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.)
Additionally, CALCRIM No. 370 by its terms applies to “the crimes charged, ” and not to gang enhancement allegations. (See People v. Snow (2003) 30 Cal.4th 43, 98 [no reasonable possibility of confusion in instructing with CALCRIM No. 370’s predecessor, CALJIC No. 2.51, because the instruction refers to “‘the crime charged, ’” not to an enhancement].) We find the reasoning in Fuentes persuasive, and defendants’ attempt to distinguish it unavailing. In sum, there is no contradiction between CALCRIM Nos. 370 and 1401, and it is not reasonably likely the jury misunderstood or misapplied CALCRIM No. 370. No clarifying instruction was required.
F. The Trial Court Properly Denied Barnett’s Instructional Requests
1. Duress
Barnett contends the trial court erred by denying his request for a jury instruction that duress was a defense to the charged offenses. Under California law, however, duress is not a defense to murder. (People v. Anderson (2002) 28 Cal.4th 767, 780; see § 26, subd. (6).) Additionally, Barnett’s request was unavailing on the nonmurder counts for three independent reasons.
First, the duress defense is generally unavailable when a person places himself in a position where coercion to commit criminal acts reasonably may be anticipated, such as by joining a criminal street gang or terrorist organization. (People v. Anderson, supra, 28 Cal.4th at p. 795 (dis. opn. of Kennard, J.); see Rutkowski, A Coercion Defense for the Street Gang Criminal: Plugging the Moral Gap in Existing Law (1996) 10 Notre Dame J.L. Ethics & Pub. Pol’y 137, 186, fn. 239.) Barnett suggests it was a factual matter “for the jury to decide” whether the defense should have been available to him but, to the contrary, the nonexistence of a prima facie level of coercion may be determined as a matter of law. (See, e.g., United States v. Homick (9th Cir. 1992) 964 F.2d 899, 905-906 [ex-husband’s telephone calls from out-of-state insufficiently coercive].) In any event, given the jury convicted Barnett of active gang participation (§ 186.22, subd. (a)) and given also his longtime, pervasive family connections with PPHG, there is no basis to conclude he reasonably should not have anticipated or would have been surprised at any potential gang pressure towards committing criminal acts.
Second, the requisite coercion must engender fear of death (§ 26, subd. (6)), not just great bodily injury as Barnett argues. Thus, there was no threshold evidence here for the duress instruction. As the trial court observed, although PPHG may have disciplined some of its members with beatings for abandoning the retaliatory strike before its tragic conclusion, “Not one of them got killed. Not one of them got permanently injured.” Barnett discounts this evidence as irrelevant because it followed the incident, rather than preceded it, but the trial court could conclude it exemplified the potential discipline at stake, which was not immediate or life threatening and therefore insufficient to constitute duress. (People v. Manson (1976) 61 Cal.App.3d 102, 206.)
Third and finally, the defendant asserting duress must act in actual fear for his or her life; it is not enough that a reasonable person would experience duress under the circumstances. (People v. Perez (1973) 9 Cal.3d 651, 657.) Here, no evidence showed fear pervaded Barnett’s actual mental state. He did not testify, he did not tell the police in his interview he feared for his life, nor did he express at any time any reluctance or hesitation in participating in the retaliatory strike. (See People v. Vieira (2005) 35 Cal.4th 264 [no duress instruction required where evidence “pointed strongly” to cult member’s voluntary participation in murder]; People v. Petznick (2003) 114 Cal.App.4th 663, 677 [a general “reluctance” to aid perpetrator insufficient for proposed duress instructions where defendant participated in two group meetings and drove with group to murder scene].) In sum, no duress instruction was required.
2. Voluntary Manslaughter
In a related argument, Barnett argues the trial court erred in denying his request for jury instructions on voluntary manslaughter as a lesser included offense of murder and on attempted voluntary manslaughter as a lesser included offense of attempted murder. Specifically, he contends he was entitled to these instructions on the theory that duress may negate the malice necessary for murder or attempted murder. As noted, however, California law does not recognize duress as a defense to murder. (People v. Anderson, supra, 28 Cal.4th at p. 780.) Nor does duress constitute a species of voluntary manslaughter; rather, voluntary manslaughter may occur if the defendant acts in a heat of passion, upon a sudden quarrel, or in unreasonable self-defense. (People v. Lasko (2000) 23 Cal.4th 101, 111.) Acknowledging these principles are controlling (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455), Barnett simply preserves his argument for potential future review. Consequently, we do not address the matter further, except to note again that Barnett’s active gang participation disqualified him for the duress defense and, in any event, no substantial evidence supported the theory.
G. The Trial Court Properly Instructed the Jury Concerning Brandishing
1. Substantial Evidence of Brandishing
Barnett challenges the sufficiency of the evidence to support the trial court’s instructions on brandishing a firearm. (CALCRIM Nos. 403, 983.) In effect, Barnett argues no reasonable juror could conclude he brandished a weapon, so the trial court should not have instructed on the topic. Specifically, the trial court instructed the jury on brandishing based on the prosecution’s theory, supported by the gang expert’s testimony, that murder was a reasonably foreseeable outcome to each hypothetical PPHG member openly carrying a firearm in a threatening manner into rival gang territory to avenge a death. (See CALCRIM No. 403 [“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes, ” original italics].) Barnett does not challenge the prosecution’s theory or the expert’s testimony, but rather only the sufficiency of the evidence on the question whether he brandished a firearm. Barnett did not raise this objection in the trial court, but argues his appellate challenge is not forfeited because the instructions prejudiced substantial rights (§ 1259) or, in the alternative, he received ineffective assistance of counsel. Even assuming the issue is not forfeited, Barnett’s challenge fails because a reasonable jury could conclude Barnett brandished his weapon, and therefore the trial court did not err in putting the question to the jury.
The crime of brandishing includes exhibiting any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner. (§ 417, subd. (a).) The offender need not point the weapon at anyone. (People v. Sanders (1995) 11 Cal.4th 475, 542.) “When the evidence shows the weapon was exhibited in a rude, angry or threatening manner, the offense is complete.” (People v. Mercer (1980) 113 Cal.App.3d 803, 806 (Mercer).)
Here, a resident of the apartment complex testified he saw a group of males carrying rifles and handguns, while dressed in black with rags covering their faces, convene in a public area of the complex, where they engaged in a conversation in which the resident overheard “PPHG” repeated several times. The group set off for another part of the complex and, within two seconds, the observer heard a barrage of shots. Earlier, another resident had looked down from her apartment and observed eight African-American males traversing the complex, all armed. The evidence showed this armed group shot at Lucky Kelly before reaching their fatal destination. Codefendants Lair, Monk, and Davis each testified Barnett wielded a.22-caliber rifle at the apartments. Lair testified Barnett was among the group lined up in formation outside apartment 22 when the group fired into the apartment. No direct evidence showed Barnett fired his weapon at Kelly or into apartment 22, but a reasonable jury could conclude the manner in which Barnett openly carried his rifle as part of a masked posse constituted brandishing.
Barnett protests that merely carrying a weapon, as do “tens of thousands of hunters walking through the woodlands of California, ” was within his Second Amendment rights, but nothing about his actions resembles the pastoral scene he describes. Not only did Barnett’s masked posse fire on an unarmed individual in an urban residential complex, they continued onward towards an unknown objective, displaying their firearms in an open and threatening manner that a reasonable jury could find constituted brandishing. The group also lined up in paramilitary fashion when it fired into apartment 22. (See Mercer, supra, 113 Cal.App.3d at p. 806 [defendant’s act of “having assumed what can only be described as a classical gunfighter’s stance” supported brandishing verdict].) In sum, the trial court did not err in instructing the jury to evaluate whether the manner in which Barnett exhibited his weapon constituted brandishing. Sufficient evidence supported the instruction.
2. Brandishing and Conspiracy
Barnett also argues the trial court erred by instructing the jury to determine whether any conspiracy he and his cohorts agreed upon to avenge Jones’s death included brandishing their weapons in the Lynnwood Apartments complex. Specifically, he challenges the sufficiency of the evidence to support the trial court’s conspiracy instructions. (CALCRIM Nos. 415 [elements of conspiracy], 417 [liability for coconspirator’s acts, including natural and probable consequences].) The trial court instructed the jury on brandishing a firearm as a conspiracy target offense, exposing Barnett to liability for murder as a natural and probable consequence of the act and his coconspirator’s actions. (People v. Hardy (1992) 2 Cal.4th 86, 188 [vicarious liability of conspirators; CALCRIM No. 417.) The trial court did not err.
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. [Citations.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) Ample evidence supported the conclusion Barnett and his fellow PPHG members agreed to retaliate violently for Jones’s death, meeting at the carwash and then at Greenwood’s apartment to plan their retaliatory strike. Barnett, however, raises a narrower challenge: whether the agreement included carrying their arsenal in a manner that constituted brandishing. The scope of a criminal agreement may be inferred from circumstantial evidence, including the participants’ conduct during the offense (ibid.), and here the evidence showed PPHG engaged in a brazen, early evening raid through the public areas of the apartment complex, making no effort to conceal their weapons or to portray themselves in a nonthreatening manner.
They wore masks, dressed in black, assembled as an armed group and, with respect to their weapons in particular, drew them from a vehicle backseat in view of the complex residents, distributed them in open view, including an assault rifle, and carried them prominently. A jury reasonably could conclude the group, including Barnett, implicitly agreed to conduct themselves and bear their arms openly and in a threatening manner to convey a lethal threat to anyone they encountered. Accordingly, the trial court did not err in giving conspiracy instructions that included brandishing as a target offense.
3. Including Both Murder and Brandishing as Target Offenses
Barnett claims the trial court erred by including murder in its conspiracy instructions as a target offense, along with brandishing. Specifically, Barnett argues it was confusing for the trial court to identify murder as a specifically intended objective of the conspiracy and as a merely natural and probable consequence of the listed target offenses (brandishing and murder). We discern no error.
As given, CALCRIM No. 417 instructed the jury that to convict Barnett of the crimes charged in counts 1 (murder), 2 and 3 (attempted murder), and 5 (shooting at an inhabited dwelling), the prosecution had to prove Barnett conspired to commit the target offenses of brandishing a firearm or murder. The instruction also informed the jury a conspirator “is... criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy.” There is nothing confusing about the fact that murder is a natural and probable consequence of a conspiracy to commit the target offense of murder. Barnett’s claim that a reasonable jury would be confused by this truism is not well-taken. Indeed, the proposition may be so obvious it is rarely stated, but that does not render the instruction erroneous. There was no error.
H. The Gun Enhancements in Section 12022.53 Do Not Violate Constitutional Norms
Defendants contend gun enhancements imposed under section 12022.53 violate equal protection because they punish aiders and abettors of crimes committed for the benefit of street gangs more severely than aiders and abettors of crimes committed for the benefit of equally or more dangerous criminal associations such as drug cartels, white supremacist groups, and terrorist organizations. Specifically, section 12022.53 provides for a 20-year enhancement, or 25 years if the victim suffers great bodily injury or dies, for anyone who personally and intentionally discharges a firearm in the commission or attempted commission of certain felonies, including murder, and these enhancements extend to aiders and abettors if the offense is committed for the benefit of a criminal street gang.
Section 12022.53, subdivision (d) states: “Notwithstanding any other provision of law, any person who, in the commission of [murder, attempted murder, or other crimes] personally and intentionally discharges a firearm and proximately causes... death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” Subdivision (c) similarly provides for a 20-year enhancement for discharge of a firearm without ensuing injuries or death. Subdivision (e)(1) extends these penalty enhancements to aiders and abettors as follows: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of section 186.22 [i.e., committed the offense for the benefit of a criminal street gang and with the specific intent to promote, further or assist in any criminal conduct by gang members]. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c) or (d).” (Italics added.) Under section 31 a “principal” includes not only those persons who directly commit the act but also those who “aid and abet in its commission.”
There is no merit to defendants’ challenge. (People v. Hernandez (2005) 134 Cal.App.4th 474, 481-482.) As Hernandez explained, even assuming the groups defendants identify are similar enough to street gangs to trigger equal protection analysis, yet dissimilar enough to fall outside the broad definition of groups subject to enhanced punishment for street terrorism, the Legislature is not required to target all analogous evils at once. “It may direct its attention ‘to those classes of cases where the need is deemed the clearest’” (id. at p. 482, fn. omitted), which the Legislature reasonably could determine was street gang violence (id. at p. 482, citing homicide figures). Defendants contend the liberty interest at stake in avoiding a lengthy enhancement requires review under the strict scrutiny standard, but a defendant “‘does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.’” (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Thus, the Legislature “‘is not prohibited by the equal protection clause from striking the evil where it is felt the most.’” (Hernandez, at p. 482.)
The People v. Hernandez court observed that although the street terrorism legislation “was aimed at gangs such as the Bloods, the Crips and South side Montebello (see section 186.21) a case could be made it also covers the White Knights of the Klu Klux Clan, the ‘Mexican Mafia, ’ and Al-Qaeda.” (People v. Hernandez, supra, 134 Cal.App.4th at p. 481, fn. 40.)
Defendants also raise a due process challenge. They argue the enhancements imposed under section 12022.53 violate due process by not requiring that the aider and abettor knew or intended the perpetrator would commit homicide in discharging a firearm. But applying the natural and probable consequences doctrine to aiders and abettors does not violate due process. (People v. Gonzales (2001) 87 Cal.App.4th 1, 15.) Under aider and abettor liability principles, “the only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” (Ibid.) Nor is there any due process issue of vagueness or ambiguity in whether the Legislature intended section 12022.53 to apply to aiders and abettors: “this statute is expressly drafted to extend the enhancement for gun use in any enumerated serious felony to gang members who aid and abet that offense in furtherance of the objectives of a criminal street gang.” (Gonzalez, at p. 15.) Consequently, defendants’ due process challenge fails.
III
DISPOSITION
The judgment is modified (§ 1260) to strike the 10-year sentence enhancements (§ 186.22, subd. (b)(1)(C)) the trial court imposed and stayed on counts 1 through 4, and to substitute instead the enhancement condition requiring a 15-year minimum parole eligibility period (§ 186.22, subd. (b)(5)) for each indeterminate life term imposed (Lopez, supra, 34 Cal.4th at p. 1007). The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment for each defendant. As modified, we affirm the judgment.
WE CONCUR: FYBEL, J., IKOLA, J.