Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Orange County No. 05ZF0105, William R. Froeberg, Judge.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant Autumn Cruz.
Wallin & Klarich and Robert C. Kasenow II for Defendant and Appellant Alain Cruz.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
Defendant Autumn Cruz was convicted of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code unless otherwise specified) and street terrorism (§ 186.22, subd. (a)). The jury found she committed murder in the course of a robbery, while an active participant in a criminal street gang, and for the benefit of the gang (§§ 186.22, subd. (b)(1), 190.2, subds. (a)(17)(A), (a)(22), 211, 212.5). It also found Autumn intentionally and personally discharged a firearm causing death. She was sentenced to life without the possibility of parole for the murder, a consecutive 25 years to life for discharging the firearm, a consecutive 15 years to life for the murder by a gang member, and a consecutive 16 months for street terrorism.
Defendant Alain Cruz (no relation to Autumn) was also convicted of first degree murder and street terrorism. The jury found he committed the murder for the benefit of a criminal street gang and was a principal in a crime where another principal intentionally discharged a firearm causing death. He was sentenced to two consecutive 25-year-to-life terms for the murder and discharge of the firearm, and a consecutive 16 months for the street terrorism.
Autumn raises six claims on appeal: Evidence of a prior gang-related confrontation was inadmissible; so-called corroborating evidence should have been admitted; there was insufficient evidence of robbery or that the crimes were committed to benefit a criminal street gang, creating cumulative error; two jury instructions were improper; and the sentence for street terrorism should be stayed and the gang enhancement stricken. The Attorney General agrees with the latter and we modify the sentence accordingly. The judgment as modified is affirmed.
Alain joins in Autumn’s arguments and presents several of his own. He claims there was insufficient evidence of murder and street terrorism as well as the gang and firearm enhancements; his sentence was cruel and unusual punishment; and the CALCRIM instruction on reasonable doubt and the presumption of innocence was insufficient. In Autumn’s reply brief she joins in the arguments to the extent they apply to her. We affirm Alain’s judgment.
FACTS
The victim, Melvin Liufau (Coco), hacked into third parties’ cell phones to obtain connections and numbers for phones he then sold. When the buyers tried to use the phones, service would be disconnected. Autumn bought such a phone from Coco. Coco was not identified as a gang member.
According to testimony from Elizabeth Vargas, she, Autumn, Alain, and Jesse Cruz (no relation to Autumn or Alain) were driving. Autumn, Alain, and Jesse were all members of the Alley Boys, a criminal street gang; Vargas was not but was a “strong associate.” Jesse had a gun, which he later put under the front passenger seat. While they were in the car Coco’s former girlfriend, Joelle O’Balles, called Autumn on her cell phone and told her Coco was going to cheat her with the cell phone scheme.
The four then drove to Coco’s house because Autumn wanted to talk to him. Vargas said Autumn was “worried that Coco was [going] to burn her with her cell phone,” i.e., obtain her personal information and use it in some type of credit fraud. After she parked the car around the corner from the house, Autumn went in alone and returned 10 minutes later. She told the others she had told Coco that she had only one person with her.
Autumn said she wanted to get a computer disk or “something off of [Coco’s] computer” that contained her social security number and other personal information. Autumn discussed a plan to have the others help her do this; they all asked her, “What do I do.” Ultimately only Autumn and Alain approached the house. Autumn took the gun Jesse had put under the seat, claiming she wanted to use it to scare Coco.
According to Vargas, when the two returned to the car 15 minutes later, Autumn had a cell phone she had never seen before but no disk. Alain’s head was cut and his eye was swollen. Autumn said she thought she had shot Coco. There had been a fight and when Coco got on top of Alain and was hitting him, Autumn was afraid and, not knowing what else to do, threw coffee on Coco. When that “didn’t work” she shot Coco. The four then drove to the home of another member of Alley Boys.
O’Balles testified that she had received a cell phone from Coco that was turned off, so he gave her his. On January 5, 2005 she received a telephone call from a woman who was upset and trying to reach Coco. About half an hour later the woman, who identified herself as Autumn, called again. O’Balles called Coco to tell him Autumn was trying to reach him. About an hour later, O’Balles listened to a voice mail message that had recorded a conversation between Autumn and Coco, where Coco was blaming O’Balles for the mix up with the phone. O’Balles was angry and called Autumn and explained that Coco “was burning people for phones.” Autumn replied, “All right. Then that’s all I needed to know.”
Christopher Camden, who rented a room in the house where Coco lived, testified that he answered the door when Autumn arrived, asking to see Coco. He returned to his room and within several minutes or so heard Coco ask Autumn if she was coming out of the bathroom. Ten to fifteen minutes later he heard a “rustling” sound and then “a thud on the wall.” A male voice said, “I’m gonna shoot him,” and he heard a gunshot and a woman scream. When Camden went to the living room a few minutes later there were items strewn around as if there had been a fight and Coco was lying on the floor bleeding.
When an investigator arrived at Coco’s house she found various items on the floor, suggesting a struggle had occurred. She also found Coco on the floor, with a scrape on his shoulder and a bullet hole in his back. An autopsy determined Coco died as a result of being shot. A search of Autumn’s home revealed, among other things, a box on which was written, “Alley Boys” and containing gang-related photographs.
Gang expert David Rondou testified he was familiar with the Alley Boys, which began in the early 1980’s and consisted of about 25 members; and its major rival is the Delhi gang. Alley Boys’s primary activities are robberies and drug sales. Predicate offenses of the Alley Boys were robbery with a knife and kidnapping, a home invasion robbery where the victims were shot at when they followed the gang members, and another robbery with shots fired at the victim who followed. Two occurred in 2004 and one in late 2003. He also testified to three narcotics crimes, one in February 2005, one in March 2003, and the third in July 2002.
Rondou testified about the importance of respect in gang culture; gang members believe if they are feared they will not be disrespected. They gain respect by committing crimes for the gang, and bragging about them is common. Disrespect of an individual member is disrespect for the gang and retaliatory action is required.
Rondou was familiar with Jesse, Autumn, and Alain based on some or all of personal encounters, background checks, review of police reports, and pictures and other documents showing gang affiliation. He was of the opinion all three were current members of Alley Boys. He also testified Vargas was a “strong associate.”
After being presented with a hypothetical that essentially used the facts of this case, he stated a killing such as Coco’s would be gang related. He testified such a murder would be gang related based on Autumn’s belief Coco had disrespected her and she had sought the assistance of other gang members to retaliate. It was in association with the gang because several gang members participated and they had sought to hide out at another member’s home after the killing. Finally, it benefitted the gang because disrespect was “met by a killing” about which the members bragged. Others would know if they disrespected Alley Boys or its members they could be killed. It also boosted the gang’s reputation.
DISCUSSION
1. Evidence of Autumn’s Prior Gang Incident
Part of Rondou’s determination Autumn was an active member of a criminal street gang was an incident involving a confrontation between her and male members of the Delhi gang. It started with words being exchanged and then punches were thrown.
Before the testimony was admitted Autumn’s lawyer objected on the basis of Evidence Code section 352, claiming she did not dispute her gang membership and the only purpose of the evidence was prejudice. The prosecution refused to agree to her proposed stipulation of gang membership. The court noted that the prosecution was required to prove not only membership but active participation in a criminal street gang. The defendant refused its offer to stipulate to count 2, street terrorism, which would also admit the crime was gang related, because she disputed that additional element. The court overruled the objection, stating that participation “in a fistfight is not particularly outrageous . . . [and] is pretty low on the scale of prejudicial acts.”
Defendant’s lawyer then objected on the ground of double hearsay, noting that a Dehli gang member had related this incident to a different officer, there had been no prosecution of the fight, and there was no opportunity to cross-examine. The court overruled the objection, stating that the evidence fell “squarely within the gang expert exception that been carved out by appellate courts.”
A gang expert is allowed to rely on inadmissible hearsay to form an opinion “so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions [citations],” and to testify to that on which he relies. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) Evidence of other gang conduct is commonly used by experts in determining whether a defendant is a gang member. Autumn argues there is no such exception relating to multiple hearsay, but she cites no law to support this. Moreover, nothing in the record shows this was multiple hearsay. There was no testimony to this effect, only the statement of counsel when objecting.
The question is the reliability of the evidence on which the expert relies. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) The court has discretion as to admission of evidence on which the expert bases his opinion. (Id. at p. 619.) “‘[B]ecause an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound judgment.’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 137.) It is common for experts to rely on reports from other officers detailing other gang-related events. (E.g., People v. Gamez (1991) 235 Cal.App.3d 957, 967, disapproved on another ground in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.) We see no abuse of discretion here.
Likewise, the evidence was not inadmissible under Evidence Code section 352. We agree with the trial court that in the scheme of things, particularly the facts of this case, a verbal altercation leading to punches is not unduly inflammatory. The fact that the prosecution wanted to present the evidence rather than accepting a stipulation does not a priori mean the evidence should have been excluded as unduly prejudicial or that the prosecution was using the evidence to prove bad character. As the Attorney General points out, the prosecution is not required “to present its case in a sanitized fashion” and was not required to accept the stipulation (People v. Edelbacher (1989) 47 Cal.3d 983, 1007), even if it did prove the relevant elements. The evidence was not of another crime and it was probative on the issue of Autumn’s active participation in a criminal street gang. Again, Autumn has not shown an abuse of discretion.
We reject Autumn’s characterization of the evidence that it suggested she threw the first punch. The testimony was that she made a derogatory comment to a Delhi gang member and “[t]hat led to punches being thrown.” It is equally if not more susceptible to an understanding that Autumn’s rival punched her first in response to her epithet. Likewise, we reject her speculative characterization of the evidence that she would need little provocation to use force in a public place where children might be present.
2. Evidence of Vargas’s Belief the Gun Was Not Loaded
Vargas was asked by Autumn’s lawyer whether, as the foursome left Coco’s house, Autumn had stated she thought the gun was not loaded. The court sustained a relevancy objection and struck Vargas’s answer, “No.” At a later sidebar defense counsel argued the testimony corroborated Vargas’s earlier statement to the police that Autumn believed the gun was not loaded because Jesse had said so; Vargas heard Jesse make that claim. The court affirmed its original ruling, finding that Vargas’s state of mind was not relevant.
Autumn claims Vargas should have been allowed to answer the question because it corroborated Jesse’s earlier statement that the gun was not loaded. This, she maintains, would show that Autumn believed the gun was not loaded and that it was discharged accidentally. We are not persuaded.
First, Vargas would have testified that Autumn did not make such a statement, so the evidence would not have corroborated anything. Secondly, even if Vargas had thought the gun was not loaded, her state of mind says nothing about Autumn’s. There was no error.
3. Evidence of and Instruction on Robbery and Attempted Robbery
The prosecution put on evidence and argued felony-murder based on the robbery or attempted robbery to prove the first degree murder charge. The jury returned a verdict of first degree murder, finding it was committed during the commission of a robbery.
Autumn claims there was insufficient evidence of robbery and attempted robbery to support the felony murder conviction or special circumstance, and, because attempted robbery was not charged, it cannot be the basis for either. In a separate section she also challenges the jury instructions on attempted robbery on related grounds, which we shall discuss here. Alain argues the evidence did not show he committed robbery or attempted robbery or aided and abetted commission of those crimes. Although Autumn and Alain also challenge the sufficiency of the evidence of burglary, because the jury found it not true that the murder was committed in the course of a burglary, we do not address it.
a. No Allegation of Attempted Robbery
The indictment alleged a special circumstance that Autumn murdered Coco while committing robbery and cited sections 211 and 212.5. During closing argument the prosecution essentially relied on attempted robbery of the computer disk, conceding there was no evidence Autumn obtained it. The jury was instructed with robbery and attempted robbery as the basis for felony-murder and the special circumstance of murder during the commission of a felony, and it found true that Autumn murdered Coco while committing robbery “as alleged in the [s]pecial [c]ircumstance allegation pursuant to . . . section 190.2(a)(17)(A).”
Autumn argues that the robbery special circumstance cannot be upheld because the indictment never charged attempted robbery. She points to section 190.4, subdivision (a), which provides that “[w]henever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved . . . .” She asserts that, if the prosecution wanted to rely on attempted robbery as the basis for the special circumstance, it was required to plead it in the indictment. She claims that failure to plead attempted robbery is a due process violation of her right to be given notice of the charges against her. We disagree.
“When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecution’s intent to prove all the elements of any lesser necessarily included offense. Hence, the stated charge notifies the defendant, for due process purposes, that he [or she] must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information. [Citations.] The statutory law of California explicitly provides that the defendant may be found guilty ‘of any offense, the commission of which is necessarily included in that with which he is charged.’ (§ 1159, italics added.)” (People v. Birks (1998) 19 Cal.4th 108, 118.) Thus the indictment gave Autumn notice she needed to defend against robbery and attempted robbery on the special circumstance charge.
Autumn argues this rule should be different for special circumstance pleadings, in her case that the prosecution should be required to specifically allege attempted robbery, but cites no substantiating authority. The cases she does cite are inapt. Some, such as People v. Wolcott (1983) 34 Cal.3d 92, deal with sua sponte jury instructions, as Autumn’s brief, with one of many instances of commendable candor, acknowledges. There the court held that enhancement allegations, such as robbery, could not be “consider[ed] . . . as part of the accusatory pleading for the purpose of defining lesser included offenses . . . .” (Id. at p. 101.) But that is not the issue here. Autumn was not convicted of the substantive crime of attempted robbery.
People v. Reed (2006) 38 Cal.4th 1224 is also inapposite. That case considered the accusatory pleading test for lesser included offenses and held it did not apply when determining whether a defendant could be convicted of multiple offenses arising from a single course of conduct. (Id. at p. 1229.) Again, that is not the issue here. But in so doing, the court also stated that when a defendant is convicted of an uncharged crime, due process is satisfied so long as it was a necessarily included lesser offense of the charge crime. (Id. at p. 1227.)
We reject Autumn’s claim that because only robbery was alleged in the indictment as the special circumstance crime, the prosecution made “a clear election” to prove only that crime. Thus, the that fact attempted robbery was not specifically listed as the crime in the indictment is not a basis for striking the special circumstance finding.
Additionally, the court did not err in instructing based on attempted robbery. For the reasons stated above, Autumn had notice that attempted robbery could be the basis of the special circumstances claim and there was no due process violation.
The fact that the verdict form shows that Autumn murdered Coco while committing a robbery likewise does not defeat the special circumstances finding based on attempted robbery. Here, as shown below, the evidence supported a finding of attempted robbery, a lesser included offense of robbery. Furthermore, attempted robbery properly supported a felony-murder conviction. Felony murder is “murder . . . committed in the perpetration of, or attempt to perpetrate, . . . robbery . . . .” (§ 189, italics added.) As we now discuss, there was sufficient evidence of attempted robbery.
b. Sufficient Evidence of Attempted Robbery
Both defendants argue there was insufficient evidence of robbery and attempted robbery. The Attorney General is relying only on attempted robbery and the evidence supports the verdicts on that basis.
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) To convict Autumn of attempted robbery the prosecution had to prove she intended to commit a robbery and took steps to accomplish it. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)
Where there is a claim of insufficient evidence, “we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) “Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Valdez (2004) 32 Cal.4th 73, 104; see People v. Marks (2003) 31 Cal.4th 197, 230-231 [circumstantial evidence sufficient to prove attempted robbery].)
Here the record contains such evidence. Vargas testified Autumn expressed her intent to have someone enter Coco’s house, through a window, and beat up Coco to retrieve a computer disk or information on his computer that contained her personal information. To accomplish that she had Alain accompany her and took a gun to scare Coco. Autumn and Alain did enter the house, Alain inferentially through the bathroom window, and engaged in a physical fight with Coco, who was shot to death. When Autumn returned to the car she stated that she shot Coco. These facts satisfy all of the elements of attempted robbery.
Defendants claim some or all of this evidence was speculative and that the verdict was based on assumptions and possibilities. For example, Autumn claims there was no evidence the force used related to taking anything. But it was reasonable for the jury to infer the fight was the force used to attempt to obtain the disk. She also points to Camden’s testimony that he heard a male voice say, “I’m gonna shoot him” and a female scream after the shot. But contrary evidence or other inferences the jury could have drawn from testimony do not defeat the substantial evidence supporting the crime. (People v. Thomas (1992) 2 Cal.4th 489, 514.) Autumn also claims there was no evidence of an intent to permanently deprive Coco of his property, but her statement she was going into Coco’s house to obtain the disk suffices.
We also reject Autumn’s argument she was only seeking to take what was hers, i.e., personal information, and thus had no intent to take another’s property or had a claim of right to take it. “‘[A] bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. . . . Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he [or she] has a right or claim to it.’” (People v. Tufunga (1999) 21 Cal.4th 935, 943.) “‘Whether a claim is advanced in good faith does not depend solely upon whether the claimant believes he was acting lawfully; the circumstances must be indicative of good faith.’” (People v. Stewart (1976) 16 Cal.3d 133, 140.)
Autumn did not testify so there is no direct evidence whether she actually and in good faith believed the disk was hers. Rather, she relies on Vargas’s testimony that Autumn said she wanted to take a disk or something from Coco’s computer that contained some personal information about her. She feared Coco would “burn her” by using that information. But that the disk might contain her personal information does not prove the disk was hers. Moreover, the fact Autumn took a gun and an accomplice into Coco’s house to scare or force him to give her the disk is evidence she did not believe the property belonged to her. There were jury instructions as to intent to take another’s property and the defense of claim of right, and Autumn argued the defense. The jury chose to disbelieve her claim. There was sufficient evidence for it to conclude Autumn did not own the disk, even if it contained her personal information. We will not second guess it.
This evidence plus Vargas’s testimony diffuse Alain’s argument aiding and abetting the robbery was not proven because there is no evidence he knew of Autumn’s unlawful intent to take property that was not hers. (People v. Hill (1998) 17 Cal.4th 800, 851 [aider and abettor must have knowledge of perpetrator’s unlawful purpose].) Because there was evidence the disk belonged to Coco and not Autumn, and the jury could reasonably infer Alain knew that.
Autumn asserts the jury was misled as to her claim of right when the prosecutor argued the defense was unavailable if it found she was engaged in unlawful activity, i.e. “the dealing and receiving of stolen phones.” She asserts the court erred in overruling her lawyer’s objection to the statement and maintains that the jury instruction on this defense, while not an issue on appeal, was not specific enough to overcome the argument and “the judge’s approval” of it. Whether or not the jury believed Autumn was engaged in dealing stolen phones, in light of the other evidence we do not believe this one statement by the prosecutor or the court’s overruling of the objection so misled the jury as to become the basis for the its verdict (People v. Samayoa (1997) 15 Cal.4th 795, 841, 842-843) or resulted in an unfair trial (People v. Hardy (1992) 2 Cal.4th 86, 173).
Alain piggybacks on the claim of right defense, arguing that the evidence shows he believed the disk belonged to Autumn and he merely accompanied her to retrieve her personal property. Alain does not cite nor did we find any authority allowing an aider and abettor to rely on a claim of right defense. It applies only to those who assert a lawful claim to the property. (People v. Tufunga, supra, 21 Cal.4th at p. 943.) But even if the defense applies to an aider and abettor, since the evidence of his knowledge was the same as that relevant to Autumn’s state of mind, he fails to show any basis for a different result as to him.
4. Premeditated Murder
Both Alain and Autumn contend there is insufficient evidence of premeditated murder. For our purposes, because the evidence supports the finding of felony murder, that is sufficient and we need not discuss this claim. (People v. Kelly (2007) 42 Cal.4th 763, 789.)
5. Sufficient Evidence of Gang Charge and Allegation and Gun Enhancement
Autumn and Alain both assert there was insufficient evidence of the substantive crime and enhancement pursuant to street gang statutes. (§ 186.22, subds. (a) & b(1).) Autumn also argues there was insufficient evidence of the gang special circumstances under section 190.2, subdivision (a)(22) while Alain separately challenges the evidence of the gun enhancement under section 12022.53, subdivisions (d) and (e)(1). We disagree with all of these claims.
a. Street Terrorism
To be convicted of street terrorism a person must “actively participate[] in a[] criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and . . . willfully promote[], further[], or assist[] in any felonious criminal conduct by members of that gang . . . .” (People v. Castenada (2000) 23 Cal.4th 743, 746.) A criminal street gang is defined as “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 [murder, robbery, narcotic sales, and many other enumerated felonies], 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.” (§ 186.22, subds. (f) & (e)(2), (3) & (4).)
Alain raises four issues which he claims defeat the conviction: the gang had no common name or symbol; there was insufficient evidence of the gang’s primary activities; there was insufficient evidence he was an active participant; and there was no evidence he knew the gang engaged in a pattern of criminal conduct. None of these claims have merit.
(1) Common Name or Symbol
Rondou testified that Alley Boys also used “A.B.,” “Alley Boys Rifa,” “Alley Boys Rifamos,” “Alley Boys Rules,” and A.B.R.” Alain claims there was no evidence they had one name common to all of them and thus the statute was not satisfied. Not so. “The association of multiple names with a gang satisfies the statute’s requirement so long as at least one name is common to the gang’s members.” (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1001.) Use of Alley Boys or its initials is common to all of the foregoing appellations. That they used more than one name does not mean they did not have one common name.
(2) Gang’s Primary Activities
The primary activities element may be proven by expert testimony that the criminal street gang “was primarily engaged in . . . statutorily enumerated felonies. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Relying on In re Alexander L. (2007) 149 Cal.App.4th 605, Alain claims Rondou’s testimony about the gang’s primary activities was insufficient because there was no foundation. But Alexander L. is distinguishable. There the expert merely testified “he ‘kn[e]w’ that the gang had been involved in certain crimes. . . . He did not directly testify that criminal activities constituted [the gang’s] primary activities.” (Id. at pp. 611-612.)
Here, to the contrary, Rondou testified he began working in the gang detail in 1995, and had investigated Alley Boys members and was familiar with them. He testified as to when the gang started, its membership, its territory, its biggest rival, and its crimes he had investigated. He had had conversations and contacts with and had done background checks of various members and had read reports of other officers about the gang. This was sufficient foundation. (People v. Gardeley, supra, 14 Cal.4th at p. 620 [similar information sufficed to support expert testimony as to primary activities]; see also People v. Sengpadychith, supra, 26 Cal.4th at p. 324].)
We reject Alain’s claim Rondou’s testimony “shows nothing more than occasional criminal acts . . . .” Rondou testified about three robberies within 15 months of the crime at issue and three narcotics arrests within two and a half years. Rondou was specifically asked for “examples” of the gang’s primary activities, not an exhaustive list. The statute does not require a certain number of crimes, as Alain seems to suggest. Moreover, the crime that is the basis for Alain’s conviction also provides evidence of the gang’s activities. (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) While not the most overwhelming evidence, viewing it most favorably to the prosecution, there was enough for the jury to reasonably infer commission of the statutorily enumerated crimes was a primary activity of Alley Boys.
(3) Active Participation
Active participation is defined as “involvement with a criminal street gang that is more than nominal or passive.” (People v. Castenada, supra, 23 Cal.4th at p. 747.) It does not require that “a person devot[e] ‘all[] or a substantial part of his time and efforts’ to the gang. [Citation.]” (Id. at p. 752.)
Rondou was of the opinion Alain was an active participant in Alley Boys at the time of the crime. He testified he had reviewed notes from an interview of Alain conducted by detective Echavarria five years prior to Coco’s murder where Alain admitted being a gang member, having been brought in by his brother. He had been in fights with Delhi members and had backed up Alley Boys members. He also knew the gang sign. Another report revealed Alain had hit someone in the face who had disrespected him. Alain also appeared in several of the photographs recovered in Autumn’s home in the box marked “Alley Boys”; there were other gang members in the photos. Finally, there’s Alain’s participation in the crime itself backing up a fellow gang member who was retaliating for perceived disrespect.
Alain asserts this evidence is insufficient, primarily because most of it was from three or four years before this crime. We disagree. Rondou’s opinion and Alain’s participation in the crime at issue together with other gang members were sufficient to support to prove this element. (See People v. Martinez (2008) 158 Cal.App.4th 1324. 1331.)
(4) Knowledge of Pattern of Gang Activity
Alain contends there was insufficient evidence that he knew of the pattern of Alley Boy’s gang activity. Alain’s gang involvement discussed above supports a contrary inference and satisfies the statutory requirement.
(5) Willful Furtherance of the Gang
While acknowledging that the proof for the three gang-related charges is different, Autumn’s attack on them is combined, making some of her claims unclear. As to the substantive crime under section 186.22, subdivision (a), she seems to argue the evidence did not support a finding she willfully furthered a criminal street gang. However the statute only requires that she willfully further any criminal conduct by gang members. Here Autumn did so by perpetrating the murder with other members of Alley Boys. “An active gang member who directly perpetrates a gang-related offense ‘contributes’ to the accomplishment of the offense . . . .” (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.)
b. Street Terrorism Special Circumstance and Enhancement
Autumn and Alain both contend there was insufficient evidence to support the gang enhancement under section 186.22, subdivision (b)(1). Autumn also challenges the sufficiency of the evidence of the gang special circumstance under section 190.2, subdivision (a)(22).
The gang special circumstance requires proof that Autumn “intentionally killed” Coco while she “was an active participant in [Alley Boys] . . . and the murder was carried out to further the activities of the . . . gang.” (§ 190.2, subd. (a)(22).) The elements of a gang enhancement are that the murder 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).)
As to the enhancement and special circumstance findings, Autumn focuses on the requirement that the crime be carried out in furtherance of gang activities. Rondou testified to the element, relying on Autumn’s retaliation for disrespect.
Autumn contends the alleged disrespect relied on by the prosecution was Rondou’s misinterpretation that Coco was going to “burn” Autumn as meaning he was going to rat her out or turn her into police. She asserts that when O’Balles testified about Coco burning Autumn, she explained “burn” meant he was going to cheat her. Autumn concludes from this there was no evidence of disrespect. But this misses the obvious fact that Coco cheating Autumn would be an incident of disrespect that she could not let pass.
Autumn also argues this evidence showed the dispute with Coco was personal, not in furtherance of the gang. A personal grudge is not mutually exclusive of a gang issue. As Rondou testified, Coco’s personal disrespect of her would reflect poorly on the gang. Therefore, Autumn’s retaliation against him protected the respect of the gang and thus furthered its purpose.
Rondou testified that once a crime is committed in retaliation, it is important for the gang members to brag to further the gang’s activities. On cross-examination he stated that the reports he reviewed contained no evidence of Autumn bragging. She relies on this to support her argument that the element the crime done to further the gang was not satisfied. But bragging is not the only way this element is satisfied. Although not in connection with the hypothetical question, Rondou did testify that retaliation for disrespect itself is necessary to protect the gang. The jury could reasonably infer from Autumn’s membership, expert testimony regarding respect, and use of other gang members to assist in the crime that it was to further gang activities in satisfaction of section 190.2, subdivision (a)(22).
Autumn also asserts there was no evidence she “personally harbored a specific intent . . . that her actions further gang activity.” She points to evidence that Coco was not a gang member and there were no “signals or shouts” showing this was gang activity. But these are not the only things that can prove this element. Here the crime was committed with other gang members. That alone supports the gang enhancement, which requires only that the crime be committed “in association with” a criminal street gang. (§ 186.22, subd. (b)(1); People v. Martinez, supra, 158 Cal.App.4th at p. 1332.)
Autumn also maintains the court erred in sustaining a prosecution objection to her lawyer’s statement during closing argument that he misstated the law. Defense counsel said the jury instructions provide that in addition to gang membership, the criminal act must be to further and for the benefit of the gang. She argues the objection should have been overruled because those are elements of the gang charges and the jury was misled “to convict where the evidence was insufficient.” We disagree. The jury was instructed as to each of the gang-related charges, which required sufficient evidence, and we presume it followed the instructions. (People v. Cline (1998) 60 Cal.App.4th 1327, 1336.)
c. Gun Enhancement
Alain’s sole ground for challenging the enhancement based on a principal’s use of a firearm causing death is the insufficiency of the evidence that Alley Boys is a criminal street gang. We have already disposed of this claim above.
6. No Cumulative Error
Autumn maintains the alleged errors discussed above constitute cumulative error. Because we find no error, this argument also fails.
7. Jury Instructions
a. CALCRIM No. 337
CALCRIM No. 337 as given states: “When Elizabeth Vargas and Joelle O[’]Balles testified, they were in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness’s testimony according to the instructions I have given you.” Autumn claims the court committed prejudicial error when it gave this instruction because it removed the fact of Vargas’s custody from the jury’s consideration and was misleading as to her.
Vargas was arrested in connection with the murder and entered into an agreement whereby she would be charged only as an accessory after the fact in exchange for her testimony. During three interviews with police she gave some conflicting information about Autumn’s plan, whether the gun was loaded, and Autumn’s statement about whether she had shot Coco. Vargas was cross-examined extensively about the changes in her statements.
We reject Autumn’s characterization that CALCRIM No. 337 prohibited the jury from considering Vargas’s custody. Rather it stated that was not the only factor to be considered but allowed the jury to evaluate that custody as in combination with all other factors. It did not keep the jury from considering Vargas’s potential bias based on the agreement with the prosecution and her desire to be released from custody as quickly as possible.
In addition, the jury was given CALCRIM No. 226, which told the jury that, in evaluating a witness’s credibility, it could consider many enumerated items, including whether the “testimony [was] influenced by a factor such as bias or prejudice, . . . or a personal interest in how the case is decided,” whether a witness had made prior inconsistent statements, the reasonableness of the testimony in the context of other evidence, and “anything that reasonably tends to prove or disprove the truth or accuracy of [the] testimony.” The court also gave CALCRIM No. 316, which instructed the jury it could consider whether a witness had committed a crime in determining credibility and the weight given to the testimony. These instructions together provided the jury with all that was required to evaluate Vargas’s testimony, including her custody.
b. CALCRIM No. 220
Alain claims CALCRIM No. 220 does not properly instruct about reasonable doubt and the presumption of innocence and thus his constitutional rights were violated.
The challenged portion of CALCRIM No. 220 as given reads: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt . . . . [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”
Alain claims this instruction is inconsistent with section 1096 that defines reasonable doubt as follows: “‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’”
Alain argues that because section 1096 refers to “a” reasonable doubt as not being a mere possible doubt, it leaves to the jurors to decide what to do if they have “multiple ‘possible doubts’” after they have considered and compared the evidence. Because CALCRIM No. 220 states that the “evidence need not eliminate all possible doubt,” he asserts, the jury will understand it can “overlook more doubt than [it] might overlook [using] the section 1096 instruction . . . .” In other words, he claims CALCRIM No. 220 “is a more forgiving standard for the People . . . . ” (Ibid.) We disagree.
The California Supreme Court and appellate courts in every district have rejected challenges to the language regarding reasonable doubt in CALCRIM No. 220. (People v. Campos (2007) 156 Cal.App.4th 1228, 1239 and cases cited therein.) Those cases dealt with the “abiding conviction” language, not the identical claim as raised here. However we agree with their underlying rationale that CALCRIM No. 220 sufficiently and correctly explains reasonable doubt. “The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. [Citation.]” (People v. Flores (2007) 153 Cal.App.4th 1088, 1093.)
Alain’s argument is hypertechnical and borders on hair splitting. Jurors do not engage in such analysis but understand instructions in the context of everyday language. (See People v. Kelly, supra, 42 Cal.4th at p. 791; People v. Warren (1988) 45 Cal.3d 471, 488.) The instruction is consistent with section 1096 and allowed the jury to properly apply the reasonable doubt standard.
8. No Cruel or Unusual Punishment
“‘“A tripartite test has been established to determine whether a penalty offends the prohibition against cruel . . . [or] unusual punishment. First, courts examine the nature of the offense and the offender, ‘with particular regard to the degree of danger both present to society.’ Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the ‘totality of the circumstances’ surrounding the commission of the offense. [Citations.]” [Citation.]’ [Citations.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.) A defendant has a “considerable burden” to show a punishment is cruel and unusual (People v. Wingo (1975) 14 Cal.3d 169, 174) and “[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Alain argues his sentence is constitutionally improper and disproportionately harsh because his role in the crime was not significant, instead he was “the least culpable offender,” his intent was only to scare Coco and he “didn’t mean for it to happen like that,” he believed the gun was not loaded and he did not fire it, he “apologize[d] from the bottom of [his] heart,” and he had no prior record. He also compares his sentence of 16 months plus two, 25-year-to-life terms to that of Autumn’s which was life without parole plus 40 years, and notes he will be almost 75 years old before he is entitled to parole, making his sentence the equivalent of a life sentence.
Alain “has made no showing that the challenged penalty is far in excess of that imposed in California for more serious crimes or for the same offense in other jurisdictions” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1391), so we analyze only the first prong of the test, the nature of the offense and the offender. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1230.)
Alain is convicted of committing a murder during an attempted robbery in which a principal used a firearm. Autumn was a member of the same gang as Alain and he willingly accompanied her into the house after hearing her plan to take a disk, using force or fear as necessary. “The victim’s resulting death was precisely the event sought to be deterred by the felony-murder rule . . . .” (People v. Rose (1986) 182 Cal.App.3d 813, 819.)
That Alain had no prior convictions is not determinative; he was a member of a gang, one of whose primary activities was robbery. His claim he intended only to scare Coco does not mitigate against the facts of the crime. That after the fact he was sorry and had not meant for it to turn out the way it did are not relevant factors in our analysis. Alain’s sentence was not cruel and unusual.
9. Striking Gang Enhancement and Staying Sentence for Street Terrorism
Autumn contends the court violated section 654 by imposing a consecutive 16-month term on the substantive street terrorism charge (§§ 186.22, subd. (a)) and that the consecutive 15-year term for the gang enhancement (§ 186.22, subd. (b)(1)) does not apply because she was sentenced to life without parole (People v. Lopez (2005) 34 Cal.4th 1002, 1004). The Attorney General concedes these points. Therefore, we order that the abstract of judgment be corrected to stay the 16-month sentence and strike the 15-year term.
DISPOSITION
The judgment against appellant Alain Cruz is affirmed. The judgment against appellant Autumn Cruz is modified to strike the 15-year term and stay the 16-month sentence and is otherwise affirmed. The clerk of the superior court is ordered to prepare a corrected abstract of judgment reflecting these modifications and to forward a copy of it to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: SILLS, P. J., O’LEARY, J.