Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR118966
Pollak, J.
Defendants David Calderon and Salvador Estrada appeal their convictions for various crimes including attempted voluntary manslaughter and assault with a deadly weapon following a fight in which the victim was severely beaten and left with permanent physical and mental disabilities. Evidence was presented that the assault was spurred by rivalry between Norteño and Sureño gang members. Both defendants challenge the sufficiency of the evidence to support a sentence enhancement under the Street Terrorism Enforcement and Prevention Act, Penal Code section 186.20 et seq. (sometimes the gang enhancement) and the denial of their new trial motions based on juror misconduct. Estrada also challenges imposition of the upper term for attempted voluntary manslaughter. We find no error and shall affirm.
Further statutory references are to the Penal Code unless otherwise noted.
Background
Francisco Hernandez lived in an apartment complex between Riverside and Cross Streets in the City of Napa. On August 3, 2004, he saw two men whom he did not recognize arguing in front of the building. He saw his neighbor Jose Gomez yell from his apartment to the men to “shut up.” The two men approached Francisco and called him “scrap,” which he testified is a derogatory term for a Sureño. Another neighbor, Hector Zendejas, came out of the building with “nunchucks” and the two men left. Francisco then saw “a bunch of guys” arguing. Zendejas was armed with the nunchucks and a “ninja sword.” One of the other men had a golf club. Francisco saw Gomez being hit with the golf club and falling, after which the other men “gathered around [Gomez] and started hitting him.” Francisco saw Gomez lying on the ground and bleeding from his head.
For clarity we refer to members of the Hernandez family by their first names, since several testified, and one of the expert witnesses also has the same surname.
Francisco told the police that he was not a Sureño, but that he has friends who are. Francisco stated that he did not wish to testify and was doing so only because he was under subpoena.
Russell Davis, a police officer with the City of Napa, testified that he interviewed Francisco three days after the incident. When Davis spoke to him, Francisco was wearing a blue belt with the number “13” on the buckle, and shoes with blue laces. When Davis asked about these items, Francisco told him that “it was old, old clothing.” Davis has been a member of the police department’s gang task force for five years. He attends conferences between one and three times a year to learn about “different aspects of gangs, as far as investigations, injunctions, different trends that different areas of gangs may have.” He testified that blue clothing and the number 13 are common Sureño symbols. He also stated that “the code of the gang, both Sureños and Norteños is not [to] testify, period. Not against a rival gang member. And not against anyone. I mean you don’t testify.” He also identified a photograph of a tattoo of four stars on Calderon’s arm as being a symbol of a Norteño gang member.
Francisco’s mother, Maria, testified that on the evening of August 3, she was home and heard Francisco talking loudly. When she went outside, Francisco was on the stairs of the apartment building talking on a cell phone. There were two other men nearby in the apartment parking lot. Her son said something to the two men, and one of them yelled back “Riverside 707.” The man was “a small guy. He was White. He had a red cap. And a white T-shirt with red numbers on [it].” She later clarified that both men were Hispanic, but that one was darker than the other. Then Gomez and Zendejas came downstairs. Gomez was carrying “a small stick” and Zendejas was carrying nunchucks and a sword. They began arguing with the men in the parking lot and Zendejas “ran after” the two men. “[A]fter a few minutes both of them came back, but there were not two people any more. There were more than ten guys.” The darker skinned of the original two men hit Gomez with a golf club. Others in the group were carrying beer bottles and sticks. After Gomez fell, “several of the men came and kicked him . . . [o]n his body, on the head, everywhere.” Maria “came in between because they were hitting him and he was unconscious.” The man in the red cap was standing on the sidewalk holding “a big stick.” ”He already had hit [Gomez]. And he was on the sidewalk . . . And he was coming back to hit [Gomez] again. It was when I came in. I said to him, do not hit him because he is unconscious.”
Calderon is partially African-American and has a dark complexion.
Saira, Maria’s daughter, testified that she was inside with her mother and heard her brother outside speaking loudly on the phone. Saira and Maria went outside and saw Francisco coming down the stairs. Two men were in the parking lot and one was “saying Riverside 707.” That man was wearing a white jersey with red letters and a red hat. Maria and Francisco went inside and Saira asked the men to leave. They continued to yell “Riverside 707” “[a]nd that’s when Hector [Zendejas] came down. . . . [Then] the two guys started running.” When Saira made her report to the police, she identified the men as “two Norteños,” based on “[t]he way they were talking and the way that they were dressed, . . . they were saying 707 Riverside, and . . . it’s all about Norte, and all of that.”
Ignacio Sanchez testified that on that evening he was near Giovannoni’s Market when Estrada approached and asked what he was doing and if he was “walking the streets at night.” Sanchez pushed Estrada away. Sanchez stated that Estrada “started getting up in my face,” i.e., that he was “standing too close and kind of challenging [him] to a fight.” Estrada asked Sanchez, “What’s your bang?” or “Whatcha bang?” He explained that this phrase meant “what do you claim. Like what set you are from.” It also meant “whether you claim Norteño or Sureño.” Sanchez thought Estrada was intoxicated. He stated that Estrada hung out with both Norteños and Sureños. A few hours later, Sanchez became aware of yelling and screaming coming from the apartments where Gomez was hurt. He saw Estrada and another man running away. Estrada then returned with the original man and four others. A fight ensued. Someone asked Sanchez who was being beaten and he replied that it was “one of the Sureños” because he was wearing blue, as were the other people who had emerged from the apartment building.
Michelle O. testified. She was 16 years of age at the time of the trial. She is Zendejas’s girlfriend. In August 2004, she was visiting Zendejas. On the night of August 3, she heard “two people arguing down by the street.” She heard someone say something like, “Riverside, bitches, come out and stop being pussies.” She woke Zendejas and the two went into the living room, where Gomez “was by the door listening.” Gomez told them that he had yelled out the door, “shut up, ladies.” Zendejas and Gomez ran downstairs and Michelle O. saw two men, one of whom was Estrada, running away. Less than five minutes later there were many people downstairs yelling. Zendejas and Gomez ran downstairs again. Zendejas was carrying a sword and nunchakus, which Michelle O. had given him as he left. Gomez did not have anything in his hands when he left the apartment, but Michelle O. saw that in the street he was holding a long piece of wood. Estrada was holding a bottle.
Michelle O. identified Calderon as the person who hit Gomez in the head. She also identified Calderon and Estrada as two of the people who were kicking Gomez after he fell. Estrada “grabbed the board that Jose had and he hit him.” Michelle O. testified that she did not know Calderon to be involved in a gang, and “knew him as a person who wasn’t violent.” She stated that Zendejas has the number 14 tattooed on his stomach, and that the number is associated with the Norteños, though she did not believe that the number had any significance for Zendejas “right now.” She believed that the men who yelled “Riverside” were Norteños.
Estrada and Calderon were charged by information with attempted murder (§§ 664, 187, subd. (a)), assault with a deadly weapon by means likely to cause great bodily injury (§ 245, subd.(a)(1)), and possession of a deadly weapon (§ 12020, subd. (a)). It was alleged that that each of the charged crimes was committed for the benefit of or at the direction of a criminal street gang, and that in the commission of the first two charged crimes each defendant inflicted great bodily injury (§ 186.22, subd. (b)(1)).
The jury found Calderon not guilty of attempted murder and could not reach a verdict on the lesser included offense of attempted voluntary manslaughter. That count was dismissed on motion of the district attorney. The jury found Calderon guilty of assault with a deadly weapon by means likely to produce great bodily injury, that he used a deadly weapon in the commission of that crime, that he caused great bodily injury, and that he committed that crime with the intent of promoting a criminal street gang. The jury also found Calderon guilty of possessing a deadly weapon, and that he did so to promote a criminal street gang. Calderon was sentenced to the midterm of three years for assault with a deadly weapon, and consecutive terms of three years for infliction of great bodily injury and 10 years for the gang enhancement. The sentence for possession of a deadly weapon was stayed under section 654.
The allegation of personal use of a deadly weapon was not included in either information, but the finding was included in the verdict forms. Neither Estrada nor the Attorney General explains the discrepancy. Calderon states in a footnote, “Based upon a request by the prosecution so as to establish the section 245(a) conviction as a future ‘strike’ offense, the jury found true an allegation that appellant had personally used a deadly weapon during the assault, pursuant to sec. 12022(b).” No record citation for the prosecution’s request is provided but neither defendant assigns error to the discrepancy.
Estrada was also found not guilty of attempted murder, but guilty of attempted voluntary manslaughter, assault with a deadly weapon, and possession of a deadly weapon. The jury found that Estrada personally used a deadly weapon in commission of the crimes, that he personally inflicted great bodily injury, and that he committed the crimes with the specific intent of promoting criminal conduct by gang members. Estrada was sentenced to the upper term of five years and six months for the attempted voluntary manslaughter, plus consecutive terms of three years for infliction of great bodily injury and ten years for the gang enhancement. The sentences on the assault with a deadly weapon and possession of a deadly weapon were stayed under section 654.
Both defendants filed timely notices of appeal and this court granted a motion to consolidate the two appeals.
Discussion
I. Gang enhancement
Both defendants challenge the sufficiency of the evidence to invoke the gang enhancement. To establish the gang enhancement under section 186.22, subdivision (b), the prosecution must prove that the crime was “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)(1).) “In determining whether the evidence is sufficient to support a conviction or an enhancement, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Section 186.22, subdivision (b)(1) reads in part: “. . . any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.”
A. The Existence of a 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, 616-617; see footnote 6, ante.) 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)), and witness intimidation (§ 186.22, subd. (e)(8)).
The prosecution’s gang expert, Gary James, testified that the Norteños is a criminal street gang within the meaning of the gang enhancement statute. James testified that the Norteños in Napa County is an ongoing organization with more than three members, that the organization claims as symbols the number 14 and the color red. As Calderon correctly acknowledges, “[u]nquestionably the prosecution proved that Norteños is an ongoing organization, and that members of that organization had committed offenses listed and dated in accordance with the requirements of sec[tion] 186.22, subdivision (e).” There was also ample evidence establishing the primary activities of the Norteños. James has worked solely on gang related crime since 1993, and on gangs in Napa County since 1999. He testified that when he moved to Napa County in June 1999, there was a rivalry between Norteños and Sureños, whom he identified as two groups whose rivalry is “a problem all over the western United States.” Gang rivalry, James explained, requires one to “instill fear in a rival or an enemy to be respected.” He testified about the conviction of six Norteño gang members for various crimes including assault with a deadly weapon, intimidating a witness, and attempted murder with great bodily injury. He stated that “one of the primary activities of the Norteños is violent 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.)
At oral argument, counsel for Estrada directed our attention to In re Alexander L. (2007) 149 Cal.App.4th 605. In that case, the Court of Appeal rejected an expert’s opinion on the primary activities of a gang because the opinion lacked foundation. The same objection was raised in this case regarding James’s testimony as to the convictions of other gang members for predicate crimes. However, James testified that he had “personally talked to” each defendant and verified with them the fact of their convictions as well as their gang membership. The records of the six convictions were received in evidence. This foundation was sufficient. “[G]angs are not public and open organizations or associations like the YMCA or State Bar Association, which have a clearly defined and ascertainable membership. Rather, gangs are more secretive, loosely defined associations of people, whose involvement runs the gamut from ‘wannabes’ to leaders. Moreover, determining whether someone is involved and the level of involvement is not a simple matter and requires the accumulation of a wide variety of evidence over time and its evaluation by those familiar with gang arcana in light of pertinent criteria.” (People v. Valdez (1997) 58 Cal.App.4th 494, 506-507.)
Both Estrada and Calderon challenge the sufficiency of the evidence concerning the gang’s primary activities. Their arguments, however, are predicated on the incorrect assumption that the gang to which the evidence referred was Riverside, rather than the Norteños. Estrada argues that “the evidence did not establish that any of the specified criminal activities was a primary purpose of ‘Riverside.’ ” Calderon similarly argues that “deficiency plagues the prosecution’s proof that Riverside 125 was a ‘criminal street gang’ within the meaning of the enhancement clause.”
James testified that the Norteño gang has subsets in Napa County, some of which are known as Westwood, Vine Hill, and Riverside. Although defendants may be correct that there was no evidence of the primary activities of Riverside, nor, as Estrada points out, that Riverside adopted the primary activities of the Norteños, there was ample evidence establishing the primary activities of the Norteños, and that Estrada and Calderon were both members of the Norteños. There was additional evidence that Estrada and Calderon were “aligned” with Riverside, but the prosecution was not required to prove that Riverside is a criminal street gang. Proof that the Norteños qualify was sufficient. (People v. Ortega (2006) 145 Cal.App.4th 1344, 1355-1356; In re Jose P. (2003) 106 Cal.App.4th 458, 467.)
Estrada cites without discussion People v. Valdez, supra, 58 Cal.App.4th 494. In Valdez, a group of Norteño affiliated gangs had joined forces in a “caravan” to attack Sureños. In holding that expert testimony properly had been admitted on the subject of whether the crimes were committed for the benefit of a gang, the court observed, “had all or most of the participants in the caravan been affiliated with the same Norteño gang, then perhaps expert testimony about rivalries, turf, respect, and forms of violence used by gangs might enable a jury to determine the ‘for the benefit etc.’ element as easily and intelligently as a gang expert could, thereby precluding the need for an expert opinion on that specific issue. However, the facts of the case were not so simple. The participants in the caravan were a diverse group, with affiliations to different gangs. They united for one day to attack Sureños. At the time it assembled, the caravan was not a ‘criminal street gang’ within the meaning of the enhancement allegation. Moreover, their common identification as Norteños did not establish them as a street gang, for, as Officer Piscitello testified, Norteño and Sureño are not the names of gangs. Finally, without further evidence, the mere fact that a group of Norteños spent the day attacking Sureños does not prove conduct for the benefit of some unidentified street gang.” (Id. at p. 508.)
In this case, there was no analogous evidence that “Norteño and Sureño are not the names of gangs.” (People v. Valdez, supra, 58 Cal.App.4th at p. 508.) To the contrary, James testified that the Norteños are a criminal street gang. In determining whether Norteños and Sureños are themselves gangs, or merely umbrella associations, we must judge the sufficiency of the evidence based on the record in this case, not on the expert testimony in a different case. (In re Jose P., supra, 106 Cal.App.4th at p. 467.) Here, the record reflects that the Norteños are an ongoing association with three or more members, whose primary purpose is the commission of some of the predicate crimes.
In closing, the prosecutor argued that the testimony concerning the six prior convictions of other Norteño gang members “provide evidence that, yeah, that is one of their primary activities.” He continued, “you have the expert testimony of investigator James that, yes, that is one of the primary activities of the Norteños. It’s not their only activity; maybe one of their activities is to sit around and drink beer, but the primary, one of the primary things that goes on with the Norteños here, at least in Napa County, is this rivalry with Sureños. And this—I guess you could call it an excuse. An excuse to go out and find somebody to fight and hurt. So primary activity of the Norteños has been established.” The evidence fully supports the finding urged by the prosecutor that the primary activity of the Norteños and the pattern of criminal activity of its members render it a criminal street gang within the meaning of section 186.22, which is sufficient regardless of the primary activity of “Riverside.”
B. Gang enhancement as applied to Calderon
Estrada makes no other argument as to why the gang enhancement was not properly applied to his sentence. Calderon, however, argues that there was insufficient evidence that he committed his crime “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” He argues that “the fact that [Calderon] assaulted Jose Gomez while other persons who were gang members were engaged in their own assaults does not constitute the required quantum of proof in support of the specific intent required under the enhancement statute.” In this assertion, he is mistaken. “[S]pecific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’ ” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
In Villalobos one of two defendants challenged the sufficiency of the evidence “that she acted ‘with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ ” (People v. Villalobos, supra, 145 Cal.App.4th at p. 322, italics in original.) The court concluded that because there was substantial evidence that this defendant was aware of the other defendant’s gang affiliation, and she did not “challenge the sufficiency of the evidence that she acted in concert with Villalobos in the commission” of the crimes, the requirements of the statute had been met. In People v. Romero (2006) 140 Cal.App.4th 15, 20, the court rejected a similar challenge, holding that “[t]here was ample evidence that appellant intended to commit a crime, that he intended to help Moreno [a fellow gang member] commit a crime, and that he knew Moreno was a member of his gang. This evidence creates a reasonable inference that appellant possessed the specific intent to further Moreno’s criminal conduct.”
Recently, the Fourth Appellate District decided People v. Garcia (2007) 153 Cal.App.4th 1499, in which the defendant was convicted of carrying a loaded and unregistered firearm in public. The jury found that he had done so for the benefit of a criminal street gang. The defendant challenged the sufficiency of the evidence that he possessed the specific intent to commit the crime for the benefit of a gang. The defendant pointed to evidence that he possessed the gun because he was in fear after being shot some years earlier, and argued that this evidence supported a finding that he did not possess the gun for the benefit of a gang. The court held that “[w]hile the evidence might have been sufficient to support such a finding, it was also sufficient to support a contrary finding by the jury that defendant possessed the firearm with the specific intent to promote, further, or assist the Devious Hoodlams street gang. [Citation.] In reaching this conclusion, we are not, as defendant suggests . . . ignoring the testimony of defendant and his family members that he had changed his ways and possessed the firearm only as a source of protection. The jury’s verdicts show it rejected this testimony.” (Id. at p.1512.)
Similarly here, although there was evidence that Calderon might no longer be involved in the gang, the evidence was strong that he participated in the attack on Gomez to assist Estrada, who was a known gang member and had begun the fight based on gang rivalries.
Calderon also argues that “[t]he only evidence from which the jury could have concluded that the incident in front of the River Cross Apartments was in some fashion a gang incident sufficient for the gang enhancement to apply stems from words spoken by Sal Estrada when appellant was not present.” He then cites Sanchez’s testimony that Estrada had asked him “what’s your bang,” and the initial confrontation at the apartment when Estrada made references to “Norte” and “Riverside 707.” This argument too is misconceived. To invoke the enhancement, the crime need not be “gang related.” (People v. Gardeley, supra, 14 Cal.4th at pp. 610.) In any event, there was ample evidence in addition to the evidence cited by Calderon that the incident was gang related. Francisco Hernandez testified that the incident had its genesis when two men called him a “scrap,” and, despite Francisco’s protestations otherwise, the police detective who interviewed him testified that he was wearing blue clothing and a belt buckle with the number “13” on it, both signs of a Sureño gang member. Maria and Saira Hernandez both testified that one of the two men shouted “Riverside 707,” which signifies a Norteño gang, and Saira testified that one of those two men was wearing red clothing, also a symbol of Norteño gang members. Saira also identified the two men as Norteños.
Although one does not “need to be a gang member or associate to commit an act for the benefit of, in association with, or at the direction of a street gang” (People v. Valdez, supra, 58 Cal.App.4th at p. 505), there was evidence that Calderon was or at least had been a Norteño gang member. James testified that Calderon was a member of the Riverside/Norteño gang based on a Mexican flag found in his room that bore the words “Rio Side,” a Riverside tattoo on his arm, drawings found in his home that said “Riverside” and “RS,” and the statements of various witnesses in the case. A Department of Corrections intake form for Calderon noted that “Subject is not a Norteño but doesn’t get along with Sureños.” Shanti Montoy, who identified himself as a founding member of Riverside, also identified Calderon as a founding member and stated that the group was formed “for protection against Sureños.”
Defendants presented evidence that Calderon was not a gang member. Nevertheless, the prosecution needed only to prove that Calderon had the specific intent to commit the assault “in concert with known gang members” in order to provide “substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos, supra, 145 Cal.App.4th at p. 322.) As in Garcia, supra, 153 Cal.App.4th 149, the jury here rejected the exculpatory evidence and adopted the view that Calderon held the specific intent to promote, further or assist Estrada. While the evidence was not abundant that Calderon was himself a gang member at the time of the attack, there is no doubt that Calderon specifically intended to aid Estrada in the attack, and ample evidence that Estrada was a known gang member.
James Hernandez testified as an expert in street gangs for the defendants. Hernandez was shown a picture of the tattoos on Calderon’s arm. He was specifically asked about “a number of marks [that] look like little asterisks around the . . . letters RIP and sort of down the arm.” Hernandez stated that he did not believe these symbols were related to the stars signifying the Norteños because “[i]t just doesn’t look like a star.” He looked at several other photographs of tattoos on Calderon’s body and stated that none were gang related.
C. Striking the gang enhancement
Calderon argues that the trial court abused its discretion when it refused to strike the gang enhancement as to him. The court may strike additional punishment for a gang enhancement “in an unusual case where the interests of justice would best be served.” (§ 186.22, subd. (g).) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
In applying the gang enhancement to Calderon, the trial court stated, “The offense had no rationality, but in furtherance of a gang, in furtherance of a gang role. Everything that was said, all the activity, clearly indicates that this was gang, and there’s nothing that would support the court not imposing that allegation [sic].” Although there was evidence that Calderon might no longer have been a member of either Riverside or the Norteños, there was substantial evidence supporting the trial court’s interpretation of events. Moreover, the trial court was correct that the only plausible explanation for the altercation was that it was begun and escalated by gang rivalries, and it was undisputed that Calderon actively participated in the ensuing brawl. The trial court did not abuse its discretion in denying Calderon’s request to strike the enhancement.
II. Juror misconduct
Both defendants moved for a new trial based on alleged juror misconduct. The trial court denied both motions. On appeal, both defendants argue that the trial court erred by not holding an evidentiary hearing on the motions, and in determining that there was no prejudice from the alleged misconduct.
Section 1181, subdivision (3) provides that the trial court may grant a motion for a new trial “[w]hen the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented.”
In support of the motions, defendants submitted an affidavit from juror No. 5. The affidavit stated: “ ‘During the course of the deliberation, at least nine jurors discussed the fact that the defendants did not testify, even though the judge had instructed U.S. not to consider or discuss this. The fact that the two defendants did not testify was mentioned by jurors several times, and it was discussed for as much as 30 minutes.’ ”
In response, the prosecution submitted a second declaration from the same juror that stated, “During our deliberations the topic of the defendants’ silence came up several times. I do not recall specifically what was said, but I recall each time we reminded each other that we could not consider their silence and quickly moved on to another area of discussion. [¶] Over the entire course of our deliberations I had previously estimated that those ‘snippets’ may have amounted to 30 minutes of discussion. But after thinking about it some more, I think that estimate is an exaggeration. [¶] I followed all of the judge’s instructions, including the instruction not to let their silence affect my verdict in any way. [¶] No juror ever expressed an intention to convict either defendant because they did not testify. No juror ever expressed an intention to hold their silence against them in any way.” The prosecution also submitted declarations from the other jurors that stated, more or less uniformly, that “Before trial I heard the Judge instruct the jury that the defendants might not testify and that we could not hold that against them. After all the evidence was presented, I heard the Judge instruct the jury we could not consider the Defendants’ silence in any way. [¶] During deliberations the topic of their silence came up briefly. I do not recall specifically what was said, but I recall we quickly moved on to another area of discussion and prolonged conversation on this point did not occur. [¶] I followed all of the judge’s instructions, including the instruction not to let their silence affect my verdict in any way.”
“When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. (See Evid. Code, § 1150, subd. (a).) If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these questions and its rulings will not be disturbed absent a clear abuse of discretion.” (People v. Perez (1992) 4 Cal.App.4th 893, 906.) Evidence Code section 1150, subdivision (a) provides “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (See also In re Stankewitz (1985) 40 Cal.3d 391, 397-398.)
Defendants are correct that the trial court could not consider the affidavits of the remaining jurors to show the jurors’ mental processes, but there is no indication that the court did so. At the hearing, the trial court stated, “there is nothing in [juror No. 5’s] affidavit or any of the other affidavits, that indicates that other than mentioning it, it wasn’t a discussion that wasn’t cut off. They moved on. The objective facts that were here indicate that although there was mention of it, the purpose of the court’s instructions is that they were not to consider it, and not to raise it as a basis for decision. It was involved, but that did . . . not interfere with the decision, and the ultimate verdict of the jury in the case.”
Nor was the trial court required to conduct an evidentiary hearing. “[W]hen a criminal defendant moves for a new trial based on allegations of jury misconduct, the trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegations. We stress, however, that the defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact.” (People v. Hedgecock (1990) 51 Cal.3d 395, 415.) In People v. Hord (1993) 15 Cal.App.4th 711, jurors submitted affidavits indicating that they had discussed both the fact that the defendant did not testify, and what the sentence would be. The Court of Appeal nevertheless held that the trial court did not abuse its discretion in denying the request for an evidentiary hearing “[b]ecause the truth of the material allegations was not in question.” (Id. at p. 724.) Likewise in this case, the affidavits before the court gave rise to no substantial question as to what had occurred during the course of deliberations. All jurors agreed that there was brief mention of the defendants’ failure to testify and of the court’s instructions not to consider the matter, and that the deliberations proceeded without further discussion of the subject. The trial court did not abuse its discretion in denying the request for an evidentiary hearing.
There is no basis to conclude that the brief reference to defendants’ failure to testify was prejudicial. “Although misconduct raises the presumption of prejudice, ‘[t]he presumption of prejudice may be rebutted, inter alia, by a reviewing court’s determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.’ ” (People v. Hord, supra, 15 Cal.App.4th at p. 725.) “Where the misconduct is not ‘inherently likely’ to have affected the vote of any of the jurors, prejudice is not shown.” (Id. at p. 727.) In Hord the court concluded that the fact that some jurors had discussed the defendant’s failure to testify was not inherently likely to have affected the verdict. “Transitory comments of wonderment and curiosity, although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion. . . . [¶] When comments go beyond natural curiosity and their content suggests inferences from forbidden areas, the chance of prejudice increases. For example, if a juror were to say, ‘The defendant didn’t testify so he is guilty,’ or ‘we will have to find the defendant guilty of the greatest charges to ensure he will be adequately punished,’ the comments go beyond mere curiosity and lean more toward a juror’s drawing inappropriate inferences from areas which are off limits. Such comments are more likely to influence that juror and other jurors.” (Id. at pp. 727-728.)
Although the original declaration of juror number 5 establishes minor misconduct, no prejudice may be inferred. While defendants’ failure to testify was mentioned, the reference was brief and the jurors acknowledged the court’s instruction that the matter was not to be considered. There is no evidence that there was any discussion concerning the implications of the defendants’ failure to testify or that any juror indicated that the court’s instruction would or should be disregarded, or that it was disregarded.
III. Imposition of the upper term
Estrada argues that the trial court erred when it imposed the upper term of five years, six months for attempted voluntary manslaughter based in part on facts unrelated to recidivism and neither admitted nor found by the jury. The trial court identified as factors justifying the upper term the facts that Estrada “was a ward and on juvenile probation at the time this was committed,” that “he was involved in the start of the confrontation” and that “the victim was on the ground and being hit with a stick by the defendant when he was in that extremely vulnerable position”
In People v. Black (2007) 41 Cal.4th 799 (Black II), following the decision of the United States Supreme Court in Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856], the California Supreme Court held “that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812.) The court continued, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
The trial court here relied in part on the fact that Estrada “was a ward and on juvenile probation at the time this was committed.” A prior juvenile adjudication may be used to impose the aggravated term without running afoul of the defendant’s right to a jury trial. “Since a juvenile court can constitutionally and reliably adjudicate a delinquency matter without affording the minor a jury trial, there is no constitutional impediment to the subsequent use of the juvenile adjudication for purposes of enhancing an adult offender’s sentence.” (People v. Tu (Aug. 27, 2007, A105905) __ Cal.App.4th __ [2007 Cal.App. Lexis 1409]; see also Almendarez-Torres v. United States (1998) 523 U.S. 224, 243; Black II, supra, 41 Cal.4th at p. 818 [record of defendant’s prior convictions is a constitutionally acceptable basis for imposing the upper term.) The fact that Estrada was on probation at the time of the offense rendered him eligible for the upper term and provided the court with the authority to impose the upper term even if, in so doing, it also relied on other facts not found by the jury.
Estrada cites People v. Nguyen (2007) 152 Cal.App.4th 1205, 1239, where the court held “that a juvenile adjudication is not a prior conviction within the meaning of Apprendi v. New Jersey, supra, 530 U.S. 466, because the juvenile offender does not have the right to a jury trial. Therefore, a juvenile adjudication cannot be used, pursuant to the Three Strikes law, to impose on an adult a sentence in excess of the maximum sentence that could have been imposed on the basis of a trial or a defendant’s admission.” To the extent this decision conflicts with People v. Tu, supra, __ Cal.App.4th __ [2007 Cal.App. Lexis 1409]), we follow the latter pending a dispositive ruling by our Supreme Court.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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: [¶] (1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245. [¶] . . . [¶] (3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part I . . . (8) The intimidation of witnesses and victims, as defined in Section 136.1 . . . . ”
Hernandez stated that Calderon’s “tattoos are not particularly consistent with known criminal street gangs. [R]esearch indicated that individuals that are actively involved in sports are less apt to become involved in criminal street gangs. Riverside, from the material that I’ve seen that’s been submitted by the district attorney, shows no alignment in particular with the Norteños. The tattoos do not reflect gang involvement. There’s really nothing to tie it to a criminal street gang.” He believed that the drawing recovered from Calderon’s apartment was “art. There’s different styles of art. That—just doesn’t reflect anything. It is art.” Nor did he see any significance in Calderon’s red shirts, observing, “I’ve got red shirts.”
Hernandez stated that most people start leaving gangs when they are 22 or 23 years old, and that by the age of 25 most have left the gangs. It would be inconsistent with the statistical data for someone who had not previously been involved with a gang to begin doing so at the age of 23. Hernandez was asked, “when you’re looking at a totality, if you’re looking at . . . a certain individual the absence of gang tattoos, but, rather, the presence of tattoos that are memorial tattoos or tattoos about Jesus, the lack of overt involvement with a so-called criminal street gang until the age of 23, the fact that some say of him he associates with people who are identified as Sureños and Norteños, he doesn’t seem to have problems with them, would that be typical of somebody who’s a member of a criminal street gang?” Hernandez replied, “Generally not. You know, . . . there’s no indication that he was really involved in a criminal gang.” He stated that there was “not really” anything he “could point to in that scenario that says he is,” beyond the fact that Calderon lives in a neighborhood that has been identified as one with gang activity. The fact that some of the participants in the fight “claimed” Riverside in Hernandez’s opinion did not signify that they were part of a criminal street gang. He stated that Riverside is a section of the City of Napa and was merely a common point of bonding.