Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA058299. James R. Brandlin, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Lazaro Sanchez Castro was convicted in counts 4 and 5 of the first degree murder and attempted robbery of Terrence Williams (the Hollywood incident). On count 1, he was convicted of the first degree murder of Andrew Curtis (the Inglewood incident). Counts 1 and 4 both have special circumstance findings for multiple murder and gang murder (Pen. Code, § 190.2, subd. (a)(3), (22)). Count 4 also has a third special circumstance, murder in the course of a robbery (id., subd. (a)(17)). The jury further found that gang and firearms enhancement allegations were true.
We use the spelling of Williams’s first name that appears on the amended information and verdict forms.
Subsequent statutory references are to the Penal Code unless otherwise stated.
Appellant was sentenced on counts 1 and 4 to two consecutive terms of life imprisonment without the possibility of parole, plus two consecutive terms of 25 years to life for the firearms enhancements. The attempted robbery count and the gang enhancements were imposed and stayed.
For the Hollywood incident, appellant was charged with two other defendants, his girlfriend Shavante Delarosa and another man, Gregory Poster. For the Inglewood incident, his codefendants were Delarosa and another man, Julian Harrell, also known as “Red Flag.” Appellant, Delarosa, Poster and Harrell belonged to the same gang, the Inglewood Family Gangster Bloods (Inglewood Family). Appellant stood trial alone. Delarosa pled guilty prior to the trial and was a prosecution witness. The record does not show the result of the prosecutions of Poster and Harrell, who were the actual killers during the Hollywood and Inglewood incidents.
Appellant contends that (1) for the Inglewood incident, his statement during a police interview should have been suppressed due to a violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) for the Hollywood incident, there was insufficient corroboration of Delarosa’s accomplice testimony; (3) the instructions on accomplice corroboration were incomplete; (4) for the Hollywood incident, there was insufficient evidence to support the enhancement and special circumstance findings related to a criminal street gang; and (5) he is entitled to a reversal for cumulative error.
We find no merit in appellant’s contentions and affirm.
FACTS
1. The Hollywood Incident
We refer to witnesses entitled to protective nondisclosure by their first name and last initial, or by double suppression when necessary, meaning no disrespect.
At 3:38 a.m. on March 28, 2004, D.J. was “hanging out” with the homicide victim, Williams, and about 10 other men, in a parking lot at Oakwood Avenue and Western Avenue in Hollywood. Williams, D.J., and their companions were pimps. They were in an area frequented by prostitutes. The women worked the streets in exchange for cash and gave everything they made to their pimps. D.J. had a “few hundred” dollars on him, which was the proceeds of that night’s business by the two prostitutes who worked for him.
Three African-American men walked aggressively up to the group of pimps. D.J. thought he and his companions “probably were about to be robbed.” One of the three men asked, “Are you niggers supposed to be pimps?” That same person asked D.J. what he had behind his back. D.J. held up his hands to show they were empty. One of the three men told another pimp to move his hands out of his pockets. The three men then turned their attention to a pimp who was walking away. D.J. seized that opportunity to run away. As he did so, he heard numerous gunshots.
Later, when D.J. returned, he saw that Williams was wounded and the police had arrived. D.J. described to the police the man who asked him what he had behind his back. He later helped a police sketch artist make a drawing of that man. When he was shown a photo lineup (six-pack), he identified appellant as that man. At the trial, in February 2008, he said appellant looked “similar,” but he was not sure appellant was that man.
B. Jaime V.
Just before Williams was shot, Jaime V. and his cousin happened to be walking near the parking lot, on the other side of a wall with a gap in it. Jaime heard arguing inside the parking lot. A man left the lot through the gap in the wall and ran past Jaime. A second man then did the same thing. As Jaime watched, a third man in the parking lot fired shots at a man who was trying to run away. The runner fell to the ground. The gunman walked up to him and fired several more shots at him. He then left the parking lot through the gap in the wall and ran by Jaime.
When Jaime was shown a six-pack in May 2004, he identified appellant as the second man who ran by him. He did not repeat that identification at the trial.
C. Delarosa
Delarosa pled guilty to two counts of voluntary manslaughter with gang enhancements, in exchange for a 12-year prison sentence and her agreement to testify truthfully about the two incidents. The agreement included a concurrent two-year sentence for a guilty plea in an unrelated grand theft case. Without the agreement, she faced a possible sentence of life imprisonment without the possibility of parole.
Delarosa testified that appellant was her boyfriend and moved into her home on March 1, 2004. On March 28, 2004, the date of the Hollywood incident, appellant sat beside her in the front seat while she drove a car in the Hollywood area. Codefendant Poster and an unidentified woman were in the back seat. Their car was accompanied by another car that held two women and two men, one of whom was named “D.”
After spending some time on Sunset Boulevard, the people in the two cars travelled south on Western Avenue. At the intersection of Western Avenue and Oakwood Avenue, Delarosa saw a group of men standing in a parking lot. As soon as she passed that corner either appellant or Poster told her to stop the car. She did so. Appellant and Poster discussed robbing the people in the parking lot. They got out of the car, leaving Delarosa and the other woman inside. D. got out of the other car, which had also stopped. Appellant, Poster and D. walked toward the parking lot.
A couple of minutes later, Delarosa heard gunshots. Appellant and Poster returned to the car, excited. Delarosa asked what had happened. Appellant was silent. At first, Poster said nothing happened. Delarosa told Poster she heard shots. She asked him if he shot somebody. He said he did not. Then he said he fired some rounds after someone grabbed his arm. He told Delarosa, “Don’t worry about it.” She drove the car away.
D. Other Testimony
The police officers who arrived at the scene found Williams wounded and unconscious. Five shell casings were recovered from the ground. Williams later died from a fatal gunshot wound that entered through his back and passed through vital organs. He also had a nonfatal gunshot wound on his forearm.
Kerry Tripp, a gang expert from the Inglewood Police Department, saw the artist’s sketch and thought it resembled appellant, whom he knew was a member of Inglewood Family. Tripp composed the six-pack that included appellant’s photo. Near his eye, appellant has a tattoo of the initials “CK,” which stands for “Crip Killer.” For the six-pack, Tripp blocked out that tattoo and put similar block-outs on the photos of the other men’s faces.
2. The Inglewood Incident
A. Irma B.
On March 31, 2004, three days after the Hollywood incident, an MTA bus driver named Irma B. was supposed to pick up her nephew, Andrew Curtis, at the intersection of Manchester Boulevard and Crenshaw Boulevard (the intersection). When she approached the intersection, Curtis did not meet her. She saw a body in the street and later learned it was Curtis.
B. Brandon R.
About 3:38 p.m. on March 31, 2004, Brandon R. and his girlfriend Diamond J. were waiting for a bus at the intersection. Curtis, a boy of “high school age,” was sitting on the bus bench. A woman across the street was holding a purse while she talked to two men. One of the men was known by the “hood name” of “Red Flag.” The woman crossed the street, sat down next to Curtis, and had a friendly conversation with him. Brandon was about two feet away, behind the bench. Appellant walked over to the bench and started flirting with the woman. Brandon had never seen appellant before, but he noticed appellant’s CK tattoo.
The woman talked to appellant in an “irritated way.” Curtis spoke up “like a gentleman” and told appellant to leave the woman alone. Appellant asked Curtis, “Where you from?” Curtis replied that he was “not from anywhere.” He said he was “just mailing something for his mother.” Appellant accused Curtis of belonging to the Crips gang, because Curtis was wearing blue clothing. Curtis said he did not want any problems. A man walked up, claimed to be appellant’s brother, and asked Curtis if he had a problem with appellant. Curtis answered that he was only trying to mail something for his mother.
Reaching for the woman’s purse, appellant said to Curtis, “You know what, I should smoke you.” The woman tried to push appellant off. Appellant kept repeating, “I should get him right now, I should smoke him.” Another man appeared and punched Curtis in the jaw. The man who claimed to be appellant’s brother then also hit Curtis. Curtis fought back. The woman tried to stop the fighting. Appellant took a gun from the woman’s purse.
When he saw the gun, Brandon started to run away. He realized he had left his girlfriend behind and ran back for her. Harrell walked over from across the street and struggled with appellant for possession of the gun. They both had their hands on it. It appeared to Brandon that Harrell and appellant were trying to decide who the shooter would be. “Red Flag [Harrell] was taking over.” The woman was saying, “Stop. Don’t do this.” Brandon grabbed his girlfriend, turned around, and heard a gunshot. He did not see who fired the gun. Curtis was holding his stomach and staggering in the middle of the street.
Brandon ran with his girlfriend to a nearby gas station. Appellant, the woman, Harrell, and one of the men who hit Curtis ran in that same direction. Harrell was holding the gun and a red cloth. He told the woman to put the gun back into her purse. He then ran down the alley with the woman, appellant, and the other man.
In addition to identifying appellant at the trial, Brandon identified photos of appellant and Harrell from six-packs.
C. Diamond J.
While Curtis and the woman were sitting on the bench, Diamond J. stood behind it with Brandon. Diamond saw two gang members across the street. One of them, whom Diamond identified at the trial as appellant, crossed the street and spoke to the woman on the bench. Appellant touched the woman’s shoulder and appeared to be harassing her. The woman moved appellant’s hand away and said, “Stop.” Curtis stood up and said something in the woman’s defense. Appellant said something to Curtis like, “Where you from, blood?” Curtis responded, “I don’t bang.” Appellant and Curtis started punching each other. Harrell and other gang members came over from across the street and also hit Curtis. Curtis fought back.
At that point, the woman who had been on the bench reached into her purse and handed an object to appellant, who handed the object to Harrell. Harrell’s hand went up, Curtis started to run, and Harrell fired a shot at him. Curtis stumbled to the middle of the intersection and fell down. Diamond’s boyfriend grabbed her. She ran with him toward the gas station. Appellant, Harrell, the woman, and a couple of other men ran in that same direction and then proceeded down the alley. As they ran, Harrell handed something to appellant.
Diamond later identified photos of appellant and Harrell from six-packs.
D. Delarosa
Delarosa testified that because of appellant’s CK tattoo, he always armed himself or had her carry a gun for him. Shortly before Curtis was shot, Delarosa was “hanging out” at the intersection with appellant, Harrell and other members of Inglewood Family. Rival gang members had passed through the area earlier that day. Appellant and his companions were “throwing gang signs” at passing cars. They were concerned that someone would shoot at them. At appellant’s request, Delarosa got her purse from the car. It held the gun used during the Hollywood incident.
Delarosa sat on the bus bench with her purse. There were several people there. Curtis sat down next to Delarosa and asked her for the time. Appellant approached. Curtis asked appellant why he had come over there. Appellant said he was there to speak with Delarosa. He asked Curtis where he was from. Curtis answered, “Nowhere.” Appellant identified himself and his gang by saying, “This is 9 for Inglewood Family.” Curtis responded, “F Inglewood Family.” Appellant angrily replied that he wanted to fight Curtis. Appellant’s fellow gang members came over and attacked Curtis. Delarosa told appellant that “it wasn’t that serious.” Appellant ordered Delarosa to give him the gun. She tried to walk away, but appellant grabbed her purse. She ended up giving him the gun.
Harrell and other members of Inglewood Family were fighting with Curtis. Delarosa started walking way and heard a gunshot. She turned around and saw people running. She ran toward her car. Appellant ran to her with the gun, which was wrapped in a red cloth. He told her to take it. She did so and put it in the trunk of her car. She moved it to her house, where the police later found it.
E. Appellant’s Statement
On May 14, 2004, following his arrest, appellant was interviewed at the Inglewood police station by Detective Stephen Seyler. Appellant told Seyler that people frequently shot at him, and members of a rival gang had shot at him earlier on the day Curtis was killed. He did not know Curtis but he did not think Curtis was a gang member. When appellant walked up to his girlfriend at the bus stop, Curtis started talking “crazy” to him, and appellant’s “homies” began hitting Curtis. Appellant saw Curtis reaching toward his pocket and thought he was reaching for a gun. Appellant shot Curtis once, but tried to shoot him in the leg, so as not to kill him.
We note that, although appellant told Detective Seyler that he personally shot Curtis, the eyewitness Diamond testified that she saw Red Flag (Harrell) shoot Curtis.
F. Other Evidence
Curtis died from a single gunshot wound that entered through his back and passed through his chest. A shell casing recovered at the scene was fired by the gun, wrapped in a red rag, that the police found when they searched Delarosa’s home on April 28, 2004. Photos of appellant, Poster and Harrell throwing gang signs were also recovered during that search.
Officer Tripp, the gang expert, testified that appellant, Delarosa, Poster and Harrell belonged to Inglewood Family, and both of the incidents were committed for the benefit of, in furtherance of, or in association with that gang.
DISCUSSION
1. Appellant’s Statement About the Inglewood Incident
Appellant maintains that Detective Seyler ignored his attempts to invoke his United States Constitution Fifth Amendment rights during the interrogation. He also argues that portions of what Seyler said during the interview should have been excluded under Evidence Code section 352 and the Sixth and Fourteenth Amendments to the United States Constitution.
We find no error in the rulings about appellant’s statement.
A. The Record
Before the jury watched the videotape of the interview, Detective Seyler testified at an Evidence Code section 402 hearing (the 402 hearing). He explained that appellant was arrested in San Diego and transported to Orange County. He picked appellant up in Orange County and drove him to the Inglewood police station. During the drive, he told appellant that he was under arrest for murder, and they would discuss the case at the station. Inside an interview room at the station, Seyler and appellant discussed the case after appellant waived his Miranda rights. During the interview, Seyler repeatedly told appellant that he did not need to make a statement. There were times during the interview when appellant said he had nothing to say, but he then continued talking after Seyler changed topics. Seyler believed that appellant wanted to talk with him in order to obtain information about the case.
In the videotape of the interview, appellant told Detective Seyler that he previously belonged to Inglewood Family, but was no longer a gang member. We copy in the margin the portion of the interview that concerned the Miranda waiver. After waiving his Miranda rights, appellant wanted Seyler to tell him what was “going on.” He asked if the interview was being recorded. Seyler lied and said it was not. He also falsely told appellant that much of the incident had been recorded on a videocamera.
“DET. SEYLER:... There’s no pressure here. You can say whatever you want to say, but let me read you this first, and then I’ll I’ll tell you what’s going on. [¶] Okay. You have the right to remain silent. Anything you say can and will be used against you in a court of law. [¶] You have the right to talk with an attorney and to have an attorney present before and during questioning. If you cannot afford an attorney, one will be appointed free of charge to represent you before and during any questioning if you desire. [¶] Do you understand each of these rights I’ve explained to you?
The remainder of what Detective Seyler told appellant was true. He said he was investigating a murder case that had already been filed by the district attorney’s office; there was strong evidence of appellant’s guilt, as Harrell and Delarosa were in custody; Delarosa had fully described the Inglewood incident; and Delarosa would be a witness. Seyler also told appellant that police officers had the murder weapon, they knew from their sources that appellant currently was one of the respected “warriors” of Inglewood Family, and they had seized numerous gang photos of appellant at Delarosa’s home.
Detective Seyler further stated that people in the community were tired of gang violence and angry about the killing of Curtis. Seyler said that he himself did not care whether appellant talked to him. He thought, however, that the shooting might have been something other than a cold-blooded killing, as it might have resulted from mistaken identity, or fear, or standing up for the gang’s territory. He told appellant this was their only chance to talk, and he would give the court appellant’s version of what happened if appellant made a statement.
Although Detective Seyler did most of the talking, appellant interjected questions. Appellant wanted to know who else was in custody and how the police got the names of the people who were involved. He said that Seyler did not really know him, that he got the CK tattoo on his face when he was younger, and that he planned to have it removed. He also said that people had told him not to speak unless a lawyer was present, and he wondered if talking to Seyler would help him. Seyler answered that appellant was going to be convicted of murder, but there were different degrees of murder, and there might be an explanation for the killing that people did not know. Appellant said he wanted to talk but did not feel that was the right thing to do. He asked where the shooting occurred. Seyler named the intersection and repeated that there might be an unknown motivation for the shooting, like fear or protection of territory.
About 29 minutes into the interview, at page 33 of the transcript of the interview, appellant said, “I don’t got nothing to say. I don’t got nothing to say.” Detective Seyler responded, “Were you even there that day?” Appellant answered, “I was there, but I don’t got nothing to say.” Seyler asked if appellant was the shooter and if he had any sympathy for Curtis. Appellant said, “Man, I don’t got nothing to say because you (inaudible) -- you know what I’m saying? -- you get me all twisted up incriminating myself.” Appellant then stated that he wanted to talk with Seyler, “for real,” but his mother and other people had told him not to talk to the police without a lawyer.
Detective Seyler asked if appellant lacked feelings and thought he had the right to kill someone. Appellant said he did not want to talk with Seyler, was not a cold-blooded murderer, did not like the gang lifestyle and was no longer in a gang. He also said Seyler already knew everything that happened. Seyler responded that he had not heard appellant’s side, and appellant might have thought Curtis belonged to a rival gang.
Appellant complained that Detective Seyler was taking the situation to “another different level.” Seyler replied that if appellant had nothing to say, he was ready to drive him to county jail. Appellant asked what Delarosa told the police. Seyler said he needed to know what appellant had been thinking, as he might have been trying to defend himself. Appellant responded that he had been trying to get his life together and had been raised with religion. Relatives had told him not to talk with the police, and he felt Seyler was pressuring him. Seyler said he did not care, and they should leave.
Then, about 35 minutes into the interview, at page 42 of the transcript of the interview, appellant started discussing the incident. He said that people kept guns in their pockets in his area, people shot at him every day, and he and Delarosa had been shot at by members of a rival gang earlier that day. He explained that when he walked up to the bench where Delarosa was sitting, Curtis started “talking crazy” to him. Two of appellant’s “homies” came up and hit Curtis. Curtis went into his pocket. He thought Curtis was reaching for a gun, so he shot him, but he tried to shoot him in the leg and not the body. He demonstrated for Detective Seyler how he held the gun. He said he wanted to “get it off [his] chest,” as he did not want Seyler to think he was a cold-blooded killer. He had not believed that Curtis was a gang member, but if he saw a person reach into a pocket, he was going to shoot. He did not want to spend the rest of his life in jail. He told Seyler that he spoke with him, even though people had told him not to do that, because he did not want Seyler to think he was a cold-blooded murderer, and he hoped Seyler could help him.
Appellant did not testify at the 402 hearing.
In ruling on the admissibility of the statement, the trial court was particularly concerned with the point at which appellant repeated, “I don’t got nothing to say.” The court observed that appellant then continued to talk and ask questions. It found that appellant was not pressured, and he made a statement because he wanted to find out what the police knew and to present his side of the story. The court therefore found under the totality of the circumstances that there was a valid waiver of Miranda rights and no invocation of rights thereafter.
The court also ruled that, under Evidence Code section 352, the jury would not hear the following words that appellant uttered while describing his effort to shoot Curtis in the leg: “Hey, deputy, I mean, I ain’t trying to incriminate myself right here. Don’t write this down. But, I mean, I shoot at people often. You feel me? But I mean, I know how to kill a person if I want to kill a person.”
During further discussion, defense counsel sought to exclude the entire first portion of the interview, up to the point, at page 42 of the transcript, when appellant began discussing the shooting. The court refused to do so, stating: “I think that the jurors are entitled to consider the information to determine whether or not the investigator’s statements, whether they are a ruse or not, go to the issues of credibility of the investigator and of the person who responds to it [sic]. [¶] It has to be taken in context. It’s not a deposition. It’s an interrogation.”
Defense counsel also argued that the jury should not hear many of the things Detective Seyler said during the interview, such as Seyler’s summary of what witnesses and codefendants told the police, his belief that the evidence of guilt was strong, and his feelings about cold-blooded murderers. The court refused to take the interview apart to delete specific statements by Seyler, finding that the detective’s words were needed to provide a context for appellant’s words. Instead, it gave a limiting instruction on that issue before the videotape was played and repeated a similar instruction in its final instructions. It also instructed fully on adoptive admissions.
“[W]hen this interview took place, the investigating officer on the tape relates alleged statements of other third parties. I am instructing you as a matter of law you may not consider the truth of the statements by third parties unless the defendant expressly or through his conduct, adopts those statements. [¶] You will hear the investigating officer on the tape say certain things. Then there’s a discussion between the two men. It’s up to you to decide factually what occurred.” The court also told the jurors they would be provided a transcript of the interview, but the transcript was not evidence.
CALCRIM No. 303 stated: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. In particular, you were told that you may not consider the alleged 3rd party statements Det. Seyler relayed during the interview of defendant Castro unless Mr. Castro acknowledged the truth of the statements expressly or by his conduct.”
B. Analysis
“As Miranda itself recognized, police officers must cease questioning a suspect who exercises the right to cut off the interrogation. ‘If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’ (Miranda, supra, 384 U.S. at pp. 473-474.) ‘Whether the suspect has indeed invoked that right, however, is a question of fact to be decided in the light of all the circumstances....’ (People v. Hayes (1985) 38 Cal.3d 780, 784.)... ‘“[A] desire to halt the interrogation may be indicated in a variety of ways,”’ (id. at p. 784) and... the words used ‘“must be construed in context.”’ (Id. at pp. 784-785.)” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238 (Musselwhite).)
“In reviewing constitutional claims of this nature, it is well established that we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.” (People v. Cunningham (2001) 25 Cal.4th 926, 992.)
In Musselwhite, supra, 17 Cal.4th at pages 1239-1240, the trial court found that the defendant made no request to terminate the interview even though the defendant stated during the interview, “I don’t want to talk about this.” The Musselwhite opinion gave “considerable weight” to the trial court’s finding, and agreed with it based on numerous cases with similar conclusions, including People v. Jennings (1988) 46 Cal.3d 963, 977-978; People v. Silva (1988) 45 Cal.3d 604, 629; People v. Davis (1981) 29 Cal.3d 814, 823-824; and In re Joe R. (1980) 27 Cal.3d 496.
People v. Stitely (2005) 35 Cal.4th 514, 534-535, is another, more recent case on point. During the course of the interview, the defendant said he thought it was time for him to stop talking. The officer said it was up to the defendant if he wanted to do that. The defendant continued talking. Stitely found no invocation of the right to remain silent, based on these principles: “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or counsel. (Davis v. United States (1994) 512 U.S. 452, 459 (Davis), italics added.) It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. (Ibid.) Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, supra, 384 U.S. 436, either to ask clarifying questions or to cease questioning altogether. (Davis, supra, 512 U.S. at pp. 459-462.)” (Stitely, at p. 535.)
Based on the foregoing cases and principles, we conclude that substantial evidence supports the trial court’s findings that, after appellant validly waived his Fifth Amendment privilege at the start of the interview, when he occasionally stated during the interview that he did not want to talk or had nothing to say, he was showing equivocation or momentary frustration, rather than invoking his right to remain silent. We reach that conclusion because (1) appellant continued talking whenever he said he did not want to do so, (2) Seyler repeatedly reminded him that there was no pressure to make a statement, (3) he understood that he did not have to speak with the police, as he recalled warnings from relatives not to speak unless an attorney was present, and (4) he chose to speak because he wanted to find out what the police knew and to present a version of the incident that would reduce his level of culpability.
We turn to the contentions regarding the trial court’s refusal to exclude specific statements by Detective Seyler during the interview. We utilize the deferential abuse of discretion standard to review rulings under Evidence Code section 352. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Appellant has argued, below and on appeal, that letting the jury hear Seyler’s descriptions of what other people said violated his federal constitutional rights to confrontation, cross-examination and the effective assistance of counsel, under the Fourth, Fifth and Sixth Amendments. We find no abuse of discretion and no violation of appellant’s constitutional rights in the rulings about his statement, as (1) the trial court made careful rulings that were justified by the evidence before it, (2) the problems raised by appellant were covered by the special instructions, and (3) the court excluded appellant’s extremely prejudicial words that he “often” shot at people and knew how to kill them if he wanted to.
Finally, assuming arguendo that there was any error regarding appellant’s statement to Detective Seyler about the Inglewood incident, there was no prejudice. Without the statement, there still was overwhelming evidence of appellant’s guilt, through the combination of the accomplice testimony from Delarosa, the eyewitness accounts from two close-up witnesses, and the murder weapon in Delarosa’s closet. Any error regarding the statement was therefore harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
2. Corroboration of Delarosa for the Hollywood Incident
Appellant argues that the only evidence of his intent to rob Williams came from the uncorroborated testimony of Delarosa, so there was insufficient evidence for the felony murder of Williams (count 4) and the felony-murder special circumstance.
Utilizing the appropriate standard of review (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Garrison (1989) 47 Cal.3d 746, 774), we find sufficient corroboration of Delarosa and sufficient evidence of appellant’s intent to rob.
Delarosa testified that, as she drove by the group of men in the parking lot, either appellant or Poster told her to stop the car. When she did so, appellant and Poster discussed robbing the people in the parking lot. They then got out of the car and walked toward the parking lot with a man named D., who had been in the other car. Delarosa heard gunshots. When appellant and Poster returned to the car, appellant said nothing, but Poster said he fired some shots after someone grabbed his arm. Delarosa then drove the car away.
The trial court correctly informed the jury that Delarosa was an accomplice whose testimony required corroboration. Delarosa was an accomplice, as a matter of law, based on section 1111, which states: “A conviction cannot 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; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
The principles of corroboration of an accomplice are well-settled. “The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice’s testimony, tend to connect the defendant with the crime.” (People v. McDermott (2002) 28 Cal.4th 946, 986; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1128; People v. Vu (2006) 143 Cal.App.4th 1009, 1022.)
We find substantial corroboration of Delarosa in the testimony of the bystander Jaime and the pimp D.J.
Jaime heard arguing in the parking lot before three men separately left it through the gap in the wall and ran by him. From a six-pack, Jaime identified appellant as the second of those men. Jaime saw the third man shoot the victim before he left the parking lot. The jury could reasonably believe that the three men were involved together in the shooting. Jaime’s identification of appellant therefore “tend[ed] to connect [appellant] with the commission of the offense,” for the purpose of section 1111.
D.J. was “hanging out” in the parking lot at 3:38 a.m. on a weekend night with the group of pimps, in an area frequented by prostitutes. He had a few hundred dollars in cash on him, the proceeds of that night’s business. The three assailants approached in an “intimidating” way that caused him to believe a robbery was imminent. The assailants inquired if the members of the group were pimps, asked what they had in their pockets, and demanded to know what D.J. held behind his back. When the assailants turned toward a pimp who was walking away, D.J. fled and heard gunshots. He later identified appellant from a six-pack as the man who asked him what he had behind his back.
The jury could reasonably conclude from the above evidence that appellant and his companions approached the group because the pimps were likely to be carrying lots of cash at that location and time of night. Also, the pimps were unlikely to report a robbery due to the illegal nature of their business. Both Jaime and D.J. placed appellant at the scene. D.J.’s testimony showed that appellant was an active participant in the attempted robbery. The choice of potential victims, combined with the behavior and statements of appellant and his companions during the incident, amply corroborated Delarosa.
3. The Instructions on Corroboration of Accomplice Testimony
The trial court gave CALCRIM No. 335, regarding corroboration of accomplice testimony. The same requirements for accomplice corroboration were repeated in CALCRIM No. 708, in the context of the robbery-murder special circumstance.
CALCRIM No. 335 stated: “If the crimes charged were committed, then Shavante Delarosa was an accomplice to those crimes. [¶] You may not convict the defendant of the crimes charged based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s statement or testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice’s statement or testimony; [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crimes. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice in the statement... about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”
Appellant contends that CALCRIM Nos. 335 and 708 omitted these principles: “First, the independent corroborative evidence must connect the defendant to the commission of the crime, and not merely to those who committed it. [Citation.] Second, the analysis of any independent corroborative evidence must be evaluated entirely without reference to the testimony of the accomplice. [Citation.] Third, there must be a connection between the defendant’s conduct and an element of the crime. [Citation.]”
CALCRIM No. 335 did not omit the first principle mentioned by appellant, as it specifically stated, “That supporting evidence tends to connect the defendant to the commission of the crimes.” The second principle was also addressed, as the instruction said the corroboration had to be “independent of the accomplice’s statement or testimony.” As to the third principle, the instruction did not specifically say there needed to be a connection between the defendant’s conduct and an element of the crime. Even so, because the instruction was a correct statement of law and was responsive to the evidence, appellant forfeited the contention about the third principle, by not requesting clarifying or amplifying language. (People v. Riggs (2008) 44 Cal.4th 248, 309.)
Finally, as Delarosa’s accomplice testimony was corroborated by multiple eyewitnesses who identified appellant on both of the incidents, any error in the instructions on corroboration of an accomplice caused no possible prejudice, under any standard of review.
4. The Gang Enhancement and Special Circumstance on the Hollywood Incident
Appellant’s gang membership affected counts 4 and 5 in three ways.
(1) The jury made findings, later imposed and stayed, regarding the enhancement of section 186.22, subdivision (b)(1) (section 186.22(b)(1)). The penalties in that section apply to “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.”
(2) Section 12022.53, subdivision (d), adds an enhancement of 25 years to life for any person who, while committing specified felonies, including murder and attempted robbery, “personally and intentionally discharges a firearm and proximately causes... death.” As appellant did not personally shoot Williams, he was eligible for a section 12022.53, subdivision (d) enhancement due to section 12022.53, subdivision (e)(1), which states: “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 [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” (Italics added.) The jury’s findings under section 12022.53, subdivisions (d) and (e) resulted in an additional consecutive term of 25 years to life on count 4 but not on count 5, which was stayed.
(3) The special circumstance of section 190.2, subdivision (a)(22) (section 190.2(a)(22)) permits the penalties of death or life imprisonment without parole for a defendant who is found guilty of first degree murder, if “[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang... and the murder was carried out to further the activities of the criminal street gang.” (Italics added.) Because appellant was not the actual shooter, section 190.2(a)(22) applied to the murder of Williams in count 4 because of section 190.2, subdivision (c), which provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole” if a section 190.2, subdivision (a) special circumstance is found true.
Appellant contends that, for the Hollywood incident, there was insufficient evidence of gang involvement, for the purpose of both section 186.22(b)(1) enhancement and section 190.2(a)(22)’s special circumstance. He also maintains that, for that incident, there was insufficient evidence of the intent to kill element of section 190.2(a)(22).
A. The Record
Both incidents occurred while appellant was with Delarosa and a third person who also belonged to the gang. In other respects, the involvement of the gang in the two incidents was very different. The Inglewood incident occurred in mid-afternoon, at a crowded intersection in the gang’s territory, in the presence and with the active involvement of numerous other members of the gang. Moreover, during that incident, appellant identified himself and the gang and asked Curtis for his gang affiliation. In contrast, the Hollywood incident occurred late at night, outside of the gang’s territory, with no mention of the gang, and with the apparent motivation of robbery.
Also, while appellant was not the actual killer in either incident, his level of participation in the shootings differed. In Inglewood, he took the gun out of Delarosa’s purse and struggled with Harrell, the actual shooter, for possession of it, just before Harrell shot Curtis. In the Hollywood incident, appellant was an active participant in the attempted robbery of the pimps in the parking lot, but he was the second man who ran past Jaime outside the parking lot, just before Poster shot Williams inside the parking lot.
To prove the gang allegations of section 186.22(b)(1) and section 190.2(a)(22), the People relied on the testimony of Officer Tripp, the gang expert. Tripp testified that members of street gangs acquire respect by committing violent crimes against rival gang members, the public, and police officers. “Putting in work” or “going out on a mission” means committing a crime for the gang, such as a murder or shooting. Gang members act to protect the territory they control. They identify themselves by tattoos, colored clothing, graffiti and hand signs. They commonly begin confrontations by asking people “where they are from,” which is a request for gang identification.
Specifically as to appellant’s gang, Officer Tripp testified that Inglewood Family is a large, predominantly Black gang on the east side of Inglewood. The primary activities of that gang are murder, robbery, rape, shooting, fighting, drug traffic, weapons traffic, and intimidation of the residents and business owners of that community. Members of the gang had been convicted of such crimes. They commit crimes in their own territory, but also often travel east to nearby locations where most Crips gangs can be found. They also commit crimes throughout other parts of Los Angeles County and the rest of the country. Delarosa, Poster and Harrell were all active members of that gang. Appellant’s gang allegiance was shown by his “CK” tattoo and other tattoos all over his body. The photo album taken from Delarosa’s home had numerous photos in which appellant, Poster and Harrell displayed gang signs. The gun found there was wrapped in a red cloth, and red is the typical color for Blood gangs. The territory of the gang includes the intersection where Curtis was killed. Members of a rival gang, the Rolling 60’s, often go to that intersection to shoot at Inglewood Family members. Numerous members of Inglewood Family can typically be found at that intersection on school day afternoons. They “hang out there, intimidate people, flash gang signs, carry weapons, shoot at people, get shot at, [and] rob people.”
In Officer Tripp’s opinion, the Hollywood incident and the Inglewood incident were both committed “for the benefit of, in furtherance of, or in association with the Inglewood Family Gangster Bloods.” We quote his testimony on that issue as to the Hollywood incident:
“Q [by the prosecutor] Sir, would you please tell the jury whether or not you have an opinion whether or not... the crimes in Hollywood were committed for the benefit of, in furtherance of, or in association with Inglewood Family Gangster Bloods?
“A It is my opinion that the crime in Hollywood was committed in association with other gang members, at least three of the people were gang members. Probably all of them. At least three of them were gang members. [¶] This kind of crime tends to lead to further acts of violence by the same gang.
“Q What can be expected during let’s say hypothetically that there is a robbery. And the victims, instead of turning over property, start running. [¶] What can [be] expected to happen to those persons?
“A They expect to get shot.”
B. Sufficiency of the Evidence for the Section 186.22(b)(1) Findings
Utilizing the appropriate standard of review (People v. Kraft (2000) 23 Cal.4th 978, 1053), we consider whether there was substantial evidence that Williams was murdered “‘for the benefit of, at the direction of, or in association with’ [appellant’s] gang, and ‘with the specific intent to promote, further, or assist in [any] criminal conduct by gang members.’” (People v. Gardeley (1996) 14 Cal.4th 605, 619 (Gardeley).)
In Gardeley, the victim was attacked by gang members inside the gang’s territory. The gang expert testified that the attack was gang-related, as gangs rely on such behavior to frighten the residents within their territory, “thereby securing the gang’s drug-dealing stronghold.” (Gardeley, supra, 14 Cal.4th at p. 619.) Gardeley held that the jury could reasonably conclude from the expert’s testimony that the attack on the victim established that the crime was committed both “‘for the benefit of, at the direction of, or in association with’ [the] gang, and ‘with the [requisite] specific intent to promote, further, or assist in... criminal conduct by gang members.’” (Ibid.)
Subsequent cases have clarified that “[c]ommission 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, citing People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
In arguing that there was insufficient evidence for the section 186.22(b)(1)findings, appellant relies heavily on the majority opinion in Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 (Briceno). In Briceno, the two defendants, who were fellow gang members, committed armed robberies together, outside the gang’s territory, without mentioning the gang. A gang expert testified that the crimes were committed to benefit the gang because violent crimes glorify the gang and increase the status of the perpetrators within the gang. The jury made section 186.22(b)(1) findings that were affirmed by the California Court of Appeal. The Ninth Circuit reversed, finding insufficient evidence that the robberies were committed with the specific intent to facilitate other criminal conduct of the gang. (Briceno, at pp. 1078-1079.) That conclusion was partly based on the lack of a connection between the robberies and the gang. The Briceno majority opinion listed other cases under section 186.22(b)(1), noting that such cases typically involve a defendant who “either committed the crime to protect gang ‘turf’ or brandished gang signs or a gang moniker during the attack.” (Briceno, at p. 1081.)
We are not persuaded by the majority opinion in Briceno, for the reasons stated by Division Six of this district in People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354. As Vazquez explained, “numerous California Courts of Appeal have rejected the Ninth Circuit’s reasoning” (id. at p. 353) and have found that Briceno misread section 186.22(b)(1)by substituting the word “any” for the word “other,” as the statute refers to “the specific intent to promote, further, or assist in any criminal conduct by gang members” (§ 186.22(b)(1), italics added). Furthermore, we agree with the dissent in Briceno, which found substantial evidence for the section 186.22(b)(1) findings in that case and observed, “there is no indication that gang-related activities occurring outside the turf cannot serve as a basis for enhancement.” (Briceno, supra, 555 F.3d at p. 1086.)
We find that for the purpose of section 186.22(b)(1), there was substantial evidence that the murder of Williams in Hollywood was committed “in association with any criminal street gang,” because, as shown by the expert testimony and the facts of the crime, it occurred while appellant was committing a robbery with other members of his gang, Inglewood Family. We also find substantial evidence that appellant had “the specific intent to promote, further, or assist in any criminal conduct by gang members.” We make that ruling because appellant’s specific intent to commit a robbery with his fellow gang members was established by the combination of (1) his discussion with Poster, a member of his gang, before he and Poster left Delarosa’s car; (2) the behavior of appellant, Poster and the third assailant when they approached the pimps in the parking lot; and (3) the gang expert’s testimony that robbery and murder were some of the gang’s primary activities, and committing violent crimes raises a gang member’s status within the gang. (See Gardeley, supra, 14 Cal.4th at p. 619.)
C. Sufficiency of the Evidence for the Section 190.2(a)(22) Finding
The gang special circumstance of section 190.2(a)(22) was enacted as part of the Gang Violence and Juvenile Crime Prevention Act of 1998, in response to the unique threat to the public from gang-related crimes. (People v. Shabazz (2006) 38 Cal.4th 55, 65.)
The jury found true, for the purpose of section 190.2(a)(22), that “the defendant intentionally killed Terrence Williams while the defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang.”
Appellant contends that there was insufficient evidence that the murder of Williams was (a) carried out to further the activities of the criminal street gang and (b) committed with the intent to kill. Continuing to use the appropriate standard of review, we find substantial evidence for both those elements.
The gang expert did not specifically mention the “further the activities” element, but it was proven through the combination of the facts of the crime and the expert’s testimony that gang members commit violent crimes to increase their status, go out on missions to commit crimes, and sometimes commit crimes outside the gang’s territory.
On the issue of intent to kill, appellant emphasizes Delarosa’s testimony that when appellant and Poster said they were going to “[g]et those motherfuckers,” “the gist of the conversation was [¶]... [¶] [t]hat they was gonna rob them.” Appellant argues that, based on that testimony, appellant and Poster intended to commit a robbery and not a killing.
In our view, the words “[g]et those motherfuckers” were ambiguous and could show an intent to kill, in addition to an intent to rob. The jury was not limited to the meaning suggested by Delarosa, who was appellant’s girlfriend. We find that a rational trier of fact could find beyond a reasonable doubt that appellant and Poster intended a killing based on (1) the gang expert’s testimony that murder was one of the gang’s primary activities and gang members receive increased respect based on the crime’s level of violence; and (2) the manner in which Williams was killed, which included Poster’s approach to fire additional shots after Williams was already down.
5. Cumulative Error
Because we have found no merit in appellant’s issues, we also reject his contention that he is entitled to a reversal based on cumulative error.
DISPOSITION
The judgment is affirmed.
We concur: BIGELOW, P. J. RUBIN, J.
“MR. CASTRO: Yes, sir.
“DET. SEYLER: Having these rights in mind, do you wish to talk to me? [¶] And like I said, what I’m going to do is I’ll tell you what it’s about, what the charges are. You don’t have to answer any questions. If you want to, you can, if you want to tell your side, but you have to agree to talk to me first, and then I’ll at least tell you this, and then you, like I said, can say something if you want or don’t no pressure. Okay? [¶] So do you want me to go ahead and tell you what’s going on? Okay. That’s yes; right? Okay. [¶] I’m investigating a murder.
“MR. CASTRO: I mean, you got to tell me what’s going on, don’t you?
“DET. SEYLER: I’m gonna tell you.
“MR. CASTRO: -- It’s a -- you -- you got to this is a
“DET. SEYLER: Yeah, I’m going to tell you right now.”