Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Orange County, No. 05CF0237, John Conley, Judge.
So’Hum Law Center of Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant, Daniel Ramiro Espinoza.
Robert C. Kasenow II, under appointment by the Court of Appeal, for Defendant and Appellant, Alfonso Javier Sanchez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
SILLS, P. J.
Daniel Espinoza and Alfonso Sanchez appeal from their convictions for first degree murder for the benefit of a gang and street terrorism and from their sentences of 50 years to life in state prison. They assert a variety of errors, collectively and individually, including lack of substantial evidence, prejudicial expert testimony, erroneous instructions, prosecutorial misconduct, and the imposition of cruel and unusual punishment. Finding no error, we affirm the convictions.
FACTS
On January 21, 2005, several members of the Lopers street gang met and “hung out” at an apartment complex in the Lopers neighborhood in Santa Ana. Luis Gutierrez (aka Chubbs), Ricardo Malaga (aka Rambo), and Alvarez Sanchez (aka Minor) came from Sanchez’s house, where they had been drinking beer, and joined Daniel Espinoza (aka Teddy) and Edgar Gomez (aka Felon). Gutierrez was carrying the “gang gun,” a.22 caliber pistol that belonged to the Lopers. They had all chipped in to buy the gun three weeks earlier. Gutierrez explained, “[E]verybody puts money in so that we – everybody could use it. Like if we need it.”
Gomez left the group for about five minutes. When he came back, he told the group he had “hit up” a guy from another gang, the Dawgs, who was walking in Lopers territory. Gutierrez testified that the Dawgs was not a Lopers’ rival, but no other gang members were allowed to walk freely in Lopers’ territory. Gutierrez testified that Gomez said the man, later identified as Alvaro Candelo, “got crazy with him, like wanted to fight him.” Malaga testified that Gomez said Candelo had beaten him up.
The group decided “to go and see what was going on with [Candelo].” Malaga and Sanchez approached Candelo first and asked him why he wanted to fight with Gomez, who was only 14 years old. Candelo said, “‘Nah, I didn’t get crazy. Everything is cool. I hanged around with your friends, with a couple of your friends before, so it’s cool with me and your gang.” Nevertheless, Sanchez and Malaga started fighting with Candelo. Candelo hit Malaga “hard,” and he went down. At that point Espinoza pulled the gang gun from his side and pointed it at Candelo. Gutierrez testified Candelo hit Espinoza’s hand as he pulled the trigger, and the gun shot Malaga, who was still on the ground, in the foot. Espinoza then took a couple of steps back and shot three or four times at Candelo.
Two shots hit Candelo; the fatal bullet entered through his back, traveled through his right lung and trachea, and lodged in his left rib. He died from a massive hemorrhage in his chest cavity. After the shooting, everyone fled the scene.
Malaga was taken to the hospital, where he was arrested. He first told police he had not seen the shooting, but later that night he said he was the shooter and that he was alone when he shot Candelo. But Malaga identified Espinoza as the shooter at trial. Gutierrez and Rafael Pineda were stopped and arrested by the police about nine or 10 o’clock that evening. After Pineda was arrested, he identified Espinoza as the shooter to the police. Pineda testified Gutierrez told him about the shooting and told him that Espinoza was the shooter.
An hour or so before Gutierrez and Pineda were arrested, Espinoza’s older brother, a Lopers member, had told Gurierrez, “[I]f you get busted, don’t say nothing.” This scared Gutierrez because “something could happen to me.” At first, Gutierrez told the police he was not involved in the shooting, but he later admitted he was there. After the police told him they were going to arrest Sanchez, Gutierrez identified Sanchez as the shooter because he “didn’t... want to get [Espinoza] involved in it. Because they didn’t have him involved.” Two days later, the police interviewed Gutierrez again; after they told him Espinoza had been arrested, Gutierrez told them Espinoza was the shooter. Gutierrez also identified Espinoza as the shooter at trial.
Both Gutierrez and Malaga testified at trial after pleading guilty to voluntary manslaughter and receiving the low-term sentence of three years in exchange for giving complete and truthful testimony.
Sanchez was interviewed by the police several times during the few days following the shooting. Initially, he denied any involvement but later admitted he was with the group of Lopers to “back them up.” Sanchez’s girlfriend testified he told her to tell the police “he was with me all the time” during the time of the shooting, even though that was not true.
The prosecution called Gomez as a witness. Gomez refused to be sworn and stated he would not testify. The trial court reminded Gomez he had been given immunity and nothing he said could be used against him, but he still refused to testify. The trial court then ordered him to testify; when he refused, the court held him in contempt and sentenced him to five days in jail. Subsequently, the prosecution introduced evidence that Gomez had been convicted of a murder committed on January 21, 2005, the date Candelo was killed.
Gomez was tried separately and convicted of second degree murder.
Rick Ashby testified as a gang expert on behalf of the prosecution. He testified the Lopers is a “traditional Hispanic street gang” that has existed in Santa Ana at least since the 1980’s. He testified the Lopers have more than 50 documented members, and they identify themselves with “a common name, sign or symbol.” Ashby testified the Lopers gang “probably has six or seven different sects,” but they all identify themselves with the Lopers. Ashby had been investigating gang crimes in Santa Ana for almost 20 years. He investigated Lopers’ crimes as a patrol officer, as an assault detective in the gang unit, and as a homicide detective. He testified some of the Lopers’ primary activities are “assaults with firearms to include murder and auto theft.”
Ashby testified that traditional Hispanic street gangs generally have a turf, which consists of the neighborhood most of the members live in. “They actually look at these neighborhoods as owning them or the neighborhood belonging to them, they see themselves as soldiers of these neighborhoods or protectors of those neighborhoods, that is why it is important to them.”
Ashby explained the term “hit up”: “If a gang member sees an individual he doesn’t recognize as a homeboy or a member of the gang he belongs to in his neighborhood and he wants to identify that person, he will go and do a hit up, basically ask the guy where are you from, who do you claim?” Gang members generally arm themselves before hitting up someone “because they often expect that individual to be armed....”
Ashby explained that assaulting a gang member would be a sign of disrespect to the gang. “It wouldn’t even matter if the individual was a gang member from another gang; it could be anybody.” If an individual has “disrespect[ed]” a gang member, the gang will retaliate with force “that is equal to or greater to the disrespect that was received.” He testified that gang members shoot to kill rather than wound because “you don’t get any points or respect for scaring somebody. You get the respect when you kill an enemy or you kill a rival.”
Ashby explained that a “gang gun” is normally purchased by the gang “or taken in a burglary or some other kind of crime,” and is available for use by the gang members. “Typically it is not allowed to be used by anybody that is not a member of the gang because you got a trust factor there. They are not going to loan a gun that is owned by the gang to somebody who is not actually a member of that gang, somebody they can’t trust.” Ashby testified it would be uncommon for a gang member to be armed without telling the rest of his group. “Say you got a car full of four or five gang members, one of them is armed. He didn’t tell the other three or four gang members that he had a gun. And they get pulled over by the police, well, because of the way the gang laws are in this state, all of them will get arrested for possession of that gun.... If the guy that is armed doesn’t tell the other[s], it is disrespectful to the other four because they would have an opportunity to not get in the car or not let him in the car or to at least know about the gun and run when they get pulled over by the police.” Furthermore, “[t]he individual who has got a gun is expected to tell everybody that he has got a gun for the purposes in case something happens, somebody else can retrieve that gun and use it or run with it so the police don’t get it or get arrested with it, they lose that gun.”
Ashby explained that a notice under the Street Terrorism Enforcement and Prevention Act (STEP notice) is issued to an individual whom the police identify as an active participant in a gang. The STEP notice names the individual and his criminal street gang and explains the penalties involved with being an active participant in a criminal street gang. (Pen. Code, § 186.32.) “We’re actually putting that person on notice and informing him he has been identified as either an associate or active participant of that particular gang, and that his gang has been identified as a criminal street gang, and that they... have been documented as committing certain crimes....” The STEP notice also includes an in-depth field interview card on which the police officer documents his or her contact with the individual, including statements made. The officer also describes identifying information such as tattoos, vehicles he was driving or riding in, and other individuals he was associated with at the time.
All statutory references are to the Penal Code unless otherwise indicated.
Ashby opined that Gutierrez, Malaga, and Gomez were active participants of the Lopers on January 21, 2005. Gutierrez admitted so to the police when he was arrested and when he testified in court. Malaga also admitted he was a Lopers member to several police officers, including one who interviewed him at the hospital the night of the shooting. Gomez admitted he was a member of Lopers to police when he was arrested the day of the shooting. Ashby’s opinion that Gomez was an active participant of the Lopers was also based on Gomez’s “convict[ion] of the murder in this case and... the gang enhancements that go along with that were also charged in that case. He was actually found to be an active participant in the Lopers criminal street gang by the jury in that case.”
Ashby opined that Sanchez was an active participant of the Lopers on January 21, 2005, based on two or three police reports where “he’s either been associating with Loper gang members or claiming membership in the Lopers gang. He has been served with five [STEP notices], where... in one of those forms he claimed to have been with the Lopers criminal street gang his entire life, and that he walked into the gang.” Also, police searched Sanchez’s residence as part of the investigation of this case and seized “a box out of his house which had Loper gang writing on [it]” and “a drawing... that contained the two monikers... Mr. Sanchez uses....” Gutierrez testified that he was jumped into the Lopers by Sanchez.
Ashby testified there are different ways a person can join a criminal street gang. “The most prevalent way of getting into a gang is what they call... jumping in.... [A prospective member of a gang] is directed to fight... other gang members.... [¶] [I]t is basically a way of proving yourself....” Other ways are “walking in,” automatic membership based on the respect and reputation of a relative of the prospective gang member, or “criming in,” membership gained by committing certain crimes.
Ashby opined that Espinoza was an active participant in the Lopers gang at the time of the shooting because he had an older brother that was a member of Lopers and he frequented the area where the shooting took place. Furthermore, both Gutierrez and Malaga testified that Espinoza was a member, he was in possession of the Lopers’ gang gun, and he fired it at Candelo.
The jury found Espinoza and Sanchez guilty of first degree murder with enhancements because death was caused by the vicarious discharge of a firearm by a gang member and because the crime was committed for the benefit of a gang. (§§ 187, subd. (a), 12022.53, subds. (d) & (e)(1), 186.22, subd. (b)(1).) The jury also found them guilty of street terrorism. (§ 186.22, subd. (a).) The trial court sentenced each defendant to a term of 25 years to life on the murder count, with a consecutive term of 25 years to life for the firearm enhancement, for a total term of 50 years to life in state prison.
DISCUSSION
Evidence of Premeditated Murder
Espinoza contends there is insufficient evidence to support the jury’s finding that he committed first degree murder because there is no evidence that he harbored a premeditated and deliberate intent to kill. We disagree.
Each appellant joins in the other’s arguments to the extent they apply. (Cal. Rules of Court, rule 8.200(a)(5).)
On a claim for sufficiency of the evidence in a criminal case, we review the record for evidence on which a rational trier of fact could find guilt beyond a reasonable doubt. “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, internal citations omitted.)
“All murder which is perpetrated by means of a... willful, deliberate, and premeditated killing... is murder of the first degree.” (§ 189.) A premeditated murder is one that occurs as a result of thought or reflection rather than rash impulse. (People v. Stitely (2005) 35 Cal.4th 514, 543.) But reflection does not necessarily require an extended period of time. “‘[T]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) There are three factors used to evaluate the sufficiency of the evidence to support premeditation and deliberation: “motive, planning activity, and manner of killing.” (People v. Stitely, supra, 35 Cal.4th at p. 543.) “These factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.] However, ‘[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.’ [Citation.]” (Ibid.)
The evidence here supports all three factors. Ashby testified a gang is strongly motivated to confront someone who disrespects the gang by encroaching on its territory and displaying hostility towards a gang member. Such a confrontation often leads to violence, and a gang member is motivated to kill his victim because it earns him great respect in the gang community. Candelo was not only in the Lopers’ claimed territory, he had exchanged hostile words or blows with Gomez. The evidence shows the Lopers gang members intended to exact retribution for these transgressions. Although it is not clear how the gang gun was transferred from Gutierrez to Espinoza, Espinoza had the gun, an inherently deadly weapon, with him at the scene, indicating he was planning to kill Candelo if violence ensued. And the manner of shooting shows it was no accident. Espinoza shot once, mistakenly hitting Malaga, then took several steps back and fired three or four shots directly at Candelo. There is sufficient evidence to support the finding of premeditation and deliberation.
Instructions on Natural and Probable Consequences of Disturbing the Peace
The trial court explained to the jury that a person may be guilty of a crime if he directly committed it or if he aided and abetted someone else who committed it. The court then instructed the jury that a person can be found guilty of murder if (1) he aided and abetted the crime of disturbing the peace, (2) the murder occurred during the commission of the crime of disturbing the peace, and (3) “[u]nder all of the circumstances a reasonable person in the defendant’s position would have known that the commission of the murder... was a natural and probable consequence of the commission of disturbing the peace.” The court instructed that “any person who unlawfully fights in a public place or challenges another person in a public place to fight is guilty of disturbing the peace.”
Espinoza contends the natural and probable consequences doctrine violates his constitutional rights because it allows him to be convicted of first degree murder based on the foreseeability of harm, i.e., a negligence standard, rather than his actual intent to commit the act. This contention has been definitively rejected by the California Supreme Court: “[W]e reject the premise of [defendant’s] argument that the application of the natural and probable consequences doctrine in capital cases unconstitutionally predicates murder liability on mere negligence. Liability as an aider and abettor requires knowledge that the perpetrator intends to commit a criminal act together with the intent to encourage or facilitate such act; in a case in which an offense that the perpetrator actually commits is different from the originally intended crime, the natural and probable consequences doctrine limits liability to those offenses that are reasonably foreseeable consequences of the act originally aided and abetted.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108.)
Espinoza next attacks the natural and probable consequences doctrine as creating an unconstitutional presumption that an aider and abettor to a first degree murder acted with malice without requiring the prosecution to prove that state of mind beyond a reasonable doubt. But the California Supreme Court has also rejected this argument. “The mens rea of an accomplice is ‘not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator’s purpose be facilitated thereby, he is a principal and liable for the commission of the offense.... It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense....’ [Citation.]” (People v. Richardson (1989) 47 Cal.App.4th 746, 778.)
Espinoza contends the trial court erred in failing to instruct the jury sua sponte that it could find an aider and abettor liable for a lesser crime even though it found the perpetrator guilty of first degree murder. He cites People v. Woods (1992) 8 Cal.App.4th 1570, in support of his contention.
In Woods, the jury asked the trial court during deliberations if an aider and abettor could be found guilty of second degree murder if the perpetrator was found guilty of first degree murder. The trial court said no. On appeal, the court held this was error. “[U]nless the trial court has a duty to inform the jury that an aider and abettor may be convicted of a crime less than the ultimate offense committed by the perpetrator when the evidence raises a question whether the greater offense is a reasonably foreseeable consequence of the act aided and abetted but establishes that a lesser offense is such a consequence, the jury would be provided with an unwarranted all-or-nothing choice with respect to the aider and abettor.” (People v. Woods, supra,8 Cal.App.4th at p. 1588.)
Here, the trial court did not specifically prohibit the jury from finding Espinoza guilty of a lesser crime as an aider and abettor. Rather, it explained that in order to find Espinoza guilty under a natural and probable consequences theory, it first had to find the crime of murder, voluntary manslaughter or involuntary manslaughter was committed, then “[u]nder all the circumstances, a reasonable person in the defendant’s position would have known that the commission of the murder, voluntary manslaughter, or involuntary manslaughter was a natural and probable consequence of the commission of disturbing the peace.” Thus, the jury could not have convicted Espinoza of first degree murder as an aider and abettor unless it found he should have expected that crime to be committed.
Furthermore, even if the jury had been specifically instructed that it could find Espinoza liable for second degree murder or manslaughter as an aider or abettor notwithstanding the commission of first degree murder by the perpetrator, it is not reasonably probable that the outcome would have been more favorable to Espinoza. (People v. Watson (1956) 46 Cal.2d 818, 836.) There was ample evidence that Espinoza was the perpetrator, not an aider and abettor, based on testimony by Gutierrez, Malaga, and Pineda.
Substantial Evidence that Murder was a Natural and Probable Consequence of Disturbing the Peace
Sanchez contends there was insufficient evidence that murder was a foreseeable consequence of the target crime of disturbing the peace; thus, his conviction for first degree murder as an aider and abettor must be reversed. We disagree.
An aider and abettor is liable under the natural and probable consequences doctrine if an objective person in the defendant’s position should have known that the act aided and abetted would lead to the charged offense. (People v. Nguyen (1993) 21 Cal.App.4th 518, 535.) This determination is made by the jury in light of all the factual circumstances of the case. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1376.) We will uphold the jury’s determination if it is supported by substantial evidence. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
The jury had before it evidence that Gomez told the group of Lopers he had been harassed by a member of the Dawgs, who was walking in the territory claimed by the Lopers. The gang expert, Ashby, testified that a gang like the Lopers takes its territory very seriously and the members feel the streets within the territory belong to the gang. The group set out with Gomez to find the offender, confront him (i.e., hit him up), and back each other up in the expected fistfight. The gang gun had been carried by Gutierrez earlier in the day; somehow it found its way to Espinoza. According to Ashby, it was common for gang members to be armed when hitting up another gang member because the other gang member would probably be armed and it was likely that violence would ensue. He also testified an armed gang member would typically tell his companions he had a gun. This constitutes ample evidence from which the jury could conclude that a person in Sanchez’s position should have foreseen that the confrontation with Candelo would lead to murder.
The cases cited by Sanchez do not persuade us otherwise. In People v. Gonzales (2001) 87 Cal.App.4th 1, three young gang members confronted and fought with two members from a rival gang. One gang member shot and killed one of the rivals; he was convicted of first degree murder as the shooter, and his two companions were convicted of first degree murder as aiders and abettors. The evidence was in conflict regarding whether the companions knew the shooter was armed. Rejecting a substantial evidence challenge, the court affirmed the convictions. “[T]he prosecutor was not required to present evidence that either [of the two companions] knew [the shooter] intended to use a gun. Rather, the issue was whether it was reasonably foreseeable under the circumstances that the gun would be used to commit a criminal act other than the target offense of assault.” (Id. at p. 10.) The court also rejected the companions’ argument that “the trial court had a sua sponte duty to instruct that an aider and abettor must have known that the shooter was armed or would use a firearm to be subject to liability based on the natural and probable consequences doctrine.” (Id. at p. 11.)
In People v. Montes (1999) 74 Cal.App.4th 1050, the defendant was convicted of attempted murder as an aider and abettor during a gang confrontation, where the defendant’s fellow gang member shot at the victim. The defendant argued he could not be liable for the attempted murder because he did not know the shooter had a gun. The court rejected that argument and affirmed the conviction. “When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them. Given the great potential for escalating violence during gang confrontations, it is immaterial whether [the defendant] specifically knew [the shooter] had a gun. [Citations.]” (Id. at p. 1056.)
Likewise, in People v. Olguin, supra, 31 Cal.App.4th 1355, the court upheld the jury’s determination that a shooting during a confrontation between gangs was the natural and probable consequence of the initial fistfight. The aider and abettor was a loyal gang member and knew the shooter was angry over having his graffiti defaced, and all three gang members displayed hostility towards the victim, who reciprocated. “[E]scalation of this confrontation to a deadly level was much closer to inevitable than it was to unforeseeable, so there is little room to quarrel with the jury’s conclusion.” (Id. at p. 1376.)
Sanchez argues the foregoing cases are distinguishable from this one because here there is no evidence the Dawgs and the Lopers were rival gangs and there is no evidence he knew one of his fellow gang members was armed. He claims his conviction, if upheld, establishes an erroneous presumption that all participants in a gang confrontation preceded by a “hit up” must reasonably foresee that someone will be killed. He is wrong.
Although Gutierrez testified the Dawgs and the Lopers were not rival gangs, the evidence is clear that this shooting resulted from a hostile confrontation between members of the two gangs and the group of Lopers went in search of the Dawgs member to confront him. One of the group of Lopers was carrying the gang gun around all day, and the gang expert testified the rest of the group most likely knew about it. Whether a killing is a reasonably foreseeable consequence of a gang confrontation depends on the facts of each case, not on a presumption. The facts here support the jury’s conclusion.
Sufficiency of the Evidence to Support Gang Counts and Enhancements
Sanchez contends there is insufficient evidence to support the gang counts and gang enhancements because the prosecution did not establish that the Lopers is a criminal street gang or that Sanchez was an active participant. As we explain, the record supports the jury’s finding. (See People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
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 one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) Sanchez first argues there is insufficient evidence that all Lopers members recognize one common sign or symbol. He points to Ashby’s testimony that Lopers has several different sects and several different names.
But Ashby also testified that all the sects identify themselves with Lopers. And there was evidence that three or more gang members in this case did so: Gutierrez and Malaga testified they were members of Lopers, and Espinoza and Gomez told police they were members of Lopers. “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.)
Sanchez next contends there is insufficient evidence that one of the Lopers’ primary activities is the commission of one or more of the requisite crimes. Although Ashby testified that “assaults with firearms to include murder and auto theft” were some of the primary activities of Lopers, Sanchez argues this testimony was not supported by a reliable foundation.
Expert testimony can establish a gang’s primary activities. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Ashby qualified as a gang expert based on his extensive training and experience in gang investigations, which was not challenged by the defendants. He investigated Lopers’ crimes during his entire 21-year career, as a patrol officer, an assault detective, and a homicide detective. He testified specifically that the Lopers’ primary activities included assaults with a firearm, murder, and auto theft. These criminal acts are enumerated in section 186.22, subdivision (e)(1), (3) and (10).
Sanchez cites In re Alexander L. (2007) 149 Cal.App.4th 605, in support of his argument. There, this court found a gang expert’s testimony insufficient to show a pattern of gang activity where he testified as follows: “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) The expert did not explain the source of his information or the circumstances surrounding his acquisition of it. Neither did he testify specifically that some of the gang’s primary activities were the commission of crimes. (Id. at pp. 611-612.) Here, however, Ashby investigated the Lopers for decades and specifically identified some of their primary activities. This evidence is significantly more reliable than the expert testimony in Alexander L. and adequately supports the finding that a primary activity of the Lopers is the commission of criminal acts. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.)
Sanchez also argues there is insufficient evidence to show he was an active participant of Lopers at the time of the crime or that he knew about the gang’s pattern of criminal activity. We find there is substantial evidence in the record.
“Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.” (§ 186.22, subd. (a).) “‘[P]attern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [enumerated offenses] provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons....” (§ 186.22, subd. (e).)
Sanchez correctly points out that mere membership in a gang is not enough to satisfy the statutory requirement of active participation. Involvement must be “‘more than nominal or passive,’” and it must be “at or reasonably near the time of the crime.” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.) Ashby opined, however, that Sanchez was an active participant in the Lopers at the time of the crime based on police records showing his long history of claiming Lopers membership and associating with Lopers members. Gutierrez testified Sanchez was a current Lopers member. And on the day of the shooting, Sanchez was hanging out with other Lopers members and went with the others to back them up during the confrontation with Candelo.
There was also sufficient evidence that Sanchez knew about the criminal activities of the Lopers. He was issued five STEP notices between August 2000 and October 2004, which notified him that he was associated with a criminal street gang. Furthermore, his active involvement in the gang, including his participation in the Candelo murder, allowed the jury to infer he was aware of the gang’s criminal activities. (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.)
Instructions on Gang Counts and Enhancements
The trial court instructed the jury that to find Sanchez guilty of participating in a criminal street gang, it must find the gang had the commission of assault with a firearm, murder, and auto theft as one or more of its primary activities. Although he did not request it, Sanchez contends the trial court committed prejudicial error because it failed to instruct the jury sua sponte on the elements of assault with a firearm, murder, and auto theft. No such instruction was necessary. The elements of the crimes which constituted some of the Lopers’ primary activities would not have been helpful to the jury because they were not asked to make a factual finding that those crimes had been committed. Ashby named the crimes rather than describing the group’s actions, and no contradictory evidence was presented. There is no sua sponte duty to give unnecessary and potentially confusing instructions.
Sanchez argues the evidence does not support the trial court’s inclusion of murder as one of the potential primary activities of Lopers because Ashby testified the primary activities included “assaults with firearms to include murder.” He claims an assault with a firearm to include murder is not listed in section 186.22, subdivision (e). A fair reading of the record supports the trial court’s conclusion that Ashby named three separate crimes.
Sanchez also contends the trial court should have instructed the jury that it had to reach unanimous agreement on which of the listed crimes constituted the Lopers’s primary activity. But “[a] unanimity requirement generally applies to acts that could have been charged as separate offenses, and a unanimity instruction must be given ‘“‘only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.’”’ [Citation.]” (People v. Seaton (2001) 26 Cal.4th 598, 671.) And jurors do not need to reach a unanimous agreement on which legal theory underlies a conviction so long as they agree the defendant committed the charged offense. (Ibid.) “[J]urors need not unanimously agree on a theory of first degree murder as either felony murder or murder with premeditation and deliberation.” (People v. Nakahara (2003) 30 Cal.4th 705, 713.) Here, the jury had to agree that the Lopers was a criminal street gang; it did not have to agree on which crime constituted the gang’s primary activity.
Admission of Expert Testimony that Gang Members Shoot to Kill
Espinoza contends Ashby’s testimony that gang members shoot to kill, not wound, was inadmissible because it constituted an expert opinion that Espinoza possessed the specific intent to kill. Although an expert opinion can “embrace[] the ultimate issue to be decided by the trier of fact,” an expert cannot express “his general belief as to how the case should be decided.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) We find Ashby’s testimony was proper.
An expert may properly testify on matters that are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) “[T]he culture and habits of criminal street gangs... meets this criterion.” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) In Gardeley, the court allowed the expert to testify that the type of assault which occurred in the case was a classic gang-related activity because “criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold,” even though the ultimate issue was whether the attack was committed for the benefit of the gang. (Id. at p. 619.)
Here, Ashby testified about the importance of respect in the gang culture. He explained that killing someone would earn more respect than merely scaring or intimidating him because “[y]ou don’t get any points or respect for scaring somebody. You get the respect when you kill an enemy or you kill a rival.” Ashby did not express an opinion about the mental state of the shooter in this case; he merely assisted the jury by testifying about matters beyond common experience. “It is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes ‘respect.’” (People v. Olguin, supra, 31 Cal.App.4th at p. 1384.)
Reasonable Doubt Instruction
Sanchez contends that the Judicial Counsel of California Criminal Jury Instructions (CALCRIM) No. 220, the reasonable doubt instruction, impermissibly lowers the prosecution’s burden of proof from that embodied in section 1096, thereby violating his right to due process. We disagree.
CALCRIM No. 220 reads in relevant part as follows: “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....” Section 1096 defines reasonable doubt as “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 jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
Sanchez contends that section 1096 allows the trier of fact to overlook only one mere possible doubt before finding guilt beyond a reasonable doubt, whereas CALCRIM No. 220 allows the jury to overlook more doubt by instructing that it need not eliminate all possible doubt before finding guilt beyond a reasonable doubt. In other words, Sanchez argues, “[a] reasonable juror will understand this instruction [CALCRIM No. 220] to mean that they may properly overlook more doubt than they might overlook in the section 1096 instruction, since telling a jury that the evidence does not have to ‘eliminate all possible doubt’ is a more forgiving standard for the People....”
A conviction violates a defendant’s right to due process if it is not supported by proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) “The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’ [Citation.]” (Victor v. Nebraska (1994) 511 U.S. 1, 5.)
We discern no significant difference between the elimination of all possible doubt and the presence of a mere possible doubt when used to elucidate the meaning of reasonable doubt. Courts have acknowledged that the plain meaning of the words “reasonable doubt” are well understood by jurors despite the efforts of the judicial system to refine them. (People v. Mayo (2006) 140 Cal.App.4th 535, 552.)
Admission of Expert Testimony regarding Gomez’s Conviction
Citing Evidence Code section 352, Sanchez contends the trial court should have exercised its discretion to exclude Ashby’s testimony about Gomez’s conviction of the same murder in a separate trial because it was more prejudicial than probative. “The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason.” (People v. Olguin, supra, 31 Cal.App.4th at p. 1369.) We find no abuse of discretion.
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The fact that Gomez had been convicted of the murder of Candelo and of committing the murder for the benefit of Lopers strongly supported Ashby’s opinion that Gomez was an active participant of Lopers on the date of the murder. In turn, Ashby’s opinion that Gomez was an active participant of Lopers on the date of the murder strongly supported the conclusion in this trial that Candelo’s murder was a gang-related crime.
Sanchez argues Ashby’s testimony about Gomez’s conviction was unnecessary because the prosecution had already introduced evidence of two predicate offenses by members of Lopers. These, together with the potential convictions of Espinoza and Sanchez for murder, were sufficient to show a pattern of gang activity under section 186.22, subdivision (a), thus supporting the charges against Espinoza and Sanchez for the crime of street terrorism. Sanchez argues the evidence was prejudicial because it “hammer[ed] home the fact that another jury sworn to hear evidence relating to the alleged murder of the victim in the instant case found that a murder had been committed and, furthermore, that the ‘gang’ enhancements and charges were true.”
The prejudicial effect of Ashby’s testimony was minimal. The jury had already been told about Gomez’s conviction, and it had seen Gomez refusing to testify and being held in contempt of court. As Sanchez points out, there was ample evidence to support the gang charges and enhancements without Ashby’s testimony. The trial court was well within its discretion in determining that the probative value of Ashby’s testimony was not outweighed by its prejudicial effect.
Dismissal of Sick Juror
On the fourth day of trial, during the presentation of the prosecution’s case, a juror called in sick. The trial court announced that fact to counsel and to the jury and seated an alternate juror. There was no objection. Sanchez contends the trial court abused its discretion in doing so because it failed to place any information on the record regarding the nature of the juror’s illness or when he or she might be able to continue jury service.
Section 1089 provides: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.” The decision to discharge a juror and seat an alternate is within the discretion of the trial court, and we will not disturb its decision unless that discretion is abused. (People v. Smith (2005) 35 Cal.4th 334, 348-349.)
Sanchez cites People v. Roberts (1992) 2 Cal.4th 271, to support his argument that the trial court must place its reasons for discharging a juror on the record. There, the trial court replaced an ill juror during deliberations after asking the remaining jurors for advice. The court commented, “The court’s discretion is not unbounded: it must determine whether good cause exists to discharge the juror, and its reasons for discharge must appear in the record as a demonstrable reality.” (Id. at p. 325.) Here, the court reported that the juror was ill, which section 1089 defines as good cause to seat an alternate. It was relatively early in the trial. The parties and witnesses were present and ready to proceed. There was no objection. Sanchez makes no claim of prejudice. We find no abuse of discretion.
Arguments by the Prosecutor
Espinoza contends the prosecutor deprived him of a fair trial during closing argument by improperly arguing that all gang members always shoot to kill with premeditation and deliberation and that Espinoza was fundamentally different from the jurors’ children. We are not persuaded that misconduct occurred.
“‘“‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.] [¶] ‘“‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets....”’” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.)
After explaining the concept of premeditation and deliberation to the jury, the prosecutor said: “In this case, ladies and gentlemen, these men were educated. They were schooled, as Corporal Ashby testified. They have been schooled on murder. They all know why you possess a gun. It’s not just to flash it, show and tell. It’s to be used on the street in response to disrespect. [¶] That’s why gang members have guns. It’s not because [they’re] gun enthusiasts. It’s because they wait for the opportunity to be able to use one. It’s the ultimate medal of honor. When they choose that lifestyle, the lifestyle of violence, ladies and gentlemen, they are indoctrinated into a world of premeditation and deliberation. [W]e call it in the law... premeditation and deliberation. Our slang is P and D. And gang members have what I call P and D to go. It’s always there. It’s always there. They have weighed and considered the consequences of murder. Those consequences for them are good. In a world that they have devoted their life to, murder is a good thing.”
Espinoza argues the prosecutor went beyond the evidence by arguing that gang members always shoot with premeditation and deliberation. Ashby had testified that gang members generally shoot to kill because that is how they earn the most respect. The prosecutor’s argument that gang members have already considered the consequences of using a gun when they shoot was a fair inference drawn from the evidence of gang culture. The prosecutor went on to argue that Espinoza knew a violent confrontation was likely, he knew he was armed with a gun, and he knew the gun would kill if he shot it. She further argued that Espinoza then picked up the gun and shot it. Thus, the jury was told that it needed to consider not only the general gang culture but the specific facts of this case.
During rebuttal argument, the prosecutor responded to the defense argument: “[Espinoza’s counsel] keeps referring to his client as this poor 14-year-old boy. And makes it seem[] as though [the detectives] are these big bullies. [¶] Yeah, they were talking with him sternly. But this isn’t your 14-year-old boy. It’s not my son. This is a gangster who has been schooled on the art of talking to the police. He is smirking, he is yawning. Completely disrespectful.” Espinoza claims this argument “vilified” and “dehumanized” him, denying him a fair trial. But the prosecutor was merely arguing that Espinoza was different from a 14-year-old boy who was not in a gang and that his behavior should be evaluated accordingly. This was not reprehensible or devious behavior and did not infect the proceedings with unfairness.
Cruel and Unusual Punishment
Both Espinoza and Sanchez assert that their sentences of 50 years to life are unconstitutionally disproportionate to their crimes and therefore cruel and unusual punishment in violation of both the California Constitution and the Eighth Amendment of the United States Constitution. Espinoza and Sanchez were 14 and 20 years old, respectively, at the time of the crime. Espinoza had one prior conviction for possession of methamphetamine and was on probation; Sanchez had prior misdemeanor convictions for throwing a rock at his brother’s car and for loitering. As we explain, we find neither defendant’s sentence is cruel and unusual punishment.
“Cruel or unusual punishment may not be inflicted or excessive fines imposed.” (Cal. Const., art. I, § 17.) “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., 8th Amend.)
A sentence is constitutionally disproportionate only in the rarest of circumstances, and a state Legislature’s sentencing guidelines are given great deference under both state and federal law. “The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense.’” (Robinson v. California (1962) 370 U.S. 660, 676.) The California Supreme Court reiterated this high standard of legislative deference by asserting that “a punishment may violate the California constitutional prohibition if, ‘although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Dillon (1983) 34 Cal.3d 441, 478.) “Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
To determine proportionality, California courts examine “‘the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.’ [Citation.]” (People v. Dillon, supra, 34 Cal.3d at p. 479.) In reviewing the nature of the offense, a court must consider the totality of circumstances surrounding the offense, including such factors as motive, the method by which the act was committed, the extent of the defendant’s involvement, and the consequences of his acts. (Ibid.) A court must consider the “nature of the offender” because the prescribed sentence may be constitutionally impermissible, even for violent crimes, if it is disproportionate to the individual defendant’s culpability. (Id. at p. 480.) Factors for the court to consider include age, prior criminality, personal characteristics, and state of mind. (Ibid.)
Sanchez argues his sentence is grossly disproportionate because he had only a minor criminal record before this incident and he played an insignificant role in the crime, yet received a sentence equivalent to the most culpable offender. But Sanchez’s role was not insignificant. He was part of a group of gang members who were committed to defending their claimed territory against intrusion by other gangs. The group shared a gun. Sanchez was one of the two gang members who confronted Candelo, who was outnumbered and unarmed, and decided to initiate the violence that led to Candelo’s murder.
Murder is indisputably a serious crime, “and the use of a gun by a gang member in the commission of a crime present[s] a significant degree of danger to society.” (People v. Em (2009) 171 Cal.App.4th 964, 972.) The Legislature has recognized that danger and “has chosen to severely punish aiders and abettors to crimes by a principal armed with a gun committed in furtherance of the purposes of a criminal street gang.” (People v. Gonzales, supra, 87 Cal.App.4th at p. 19.) Sanchez’s sentence does not constitute cruel and unusual punishment.
Espinoza bases his constitutional challenge on his young age. He characterizes the crime as an “impetuous, thoughtless killing” committed “by a teenager only loosely associated with a gang....”
“When considering whether a sentence is cruel or unusual punishment, the defendant’s age matters.” (People v. Em, supra, 171 Cal.App.4th at p. 976.) In Em, this court held that a sentence of 50 years to life for aiding and abetting a gang-related robbery and for a conviction of murder under the felony-murder doctrine was not unconstitutionally excessive for a 15-year-old defendant. The defendant and two other gang members came across the victim “alone in his car... and decided to rob him and steal his car.” One of the other gang members “demanded [the victim’s] money and car keys, and then shot him multiple times.” (Id. at p. 975.) The defendant did not have an extensive criminal record, but had been convicted of possession of a concealed dirk or dagger. He was on probation for that crime and had many probation violations. His probation officer opined he was “‘obviously immature.’” (Ibid.) Notwithstanding, the court stated, “[w]hen balanced against the seriousness of the crime, defendant’s active participation in [the victim’s] robbery and murder, the senseless and cold-blooded nature of the murder, defendant’s prior gang-related criminal history, and the danger he presents to society, we hold defendant’s sentence was not disproportionate to the crime for which it was imposed....” (Id. at p. 976.)
The defendants’ ages were also a consideration in People v. Gonzales, supra, 87 Cal.App.4th 1. There,the three defendants were all young gang members, 14 and 16 years old, driving in their car, when they observed the victims appear to flash gang signs. The defendants got out of their car, the 14-year-old openly wielding a gun. After a short fistfight, the 14-year-old shot the victim in the head. All three defendants were convicted of first degree murder, the shooter as the perpetrator and the other two for aiding and abetting. They each received a sentence of 50 years to life. The court upheld all three sentences against a cruel and unusual punishment challenge. With respect to the 14-year-old shooter, the court stated, “While [the defendant’s] youth and incidental criminal history are factors in his favor, they are substantially outweighed by the seriousness of the crime and the circumstances surrounding its commission.... The lack of a significant prior criminal record is not determinative in a cruel and unusual punishment analysis. [Citation.] [The defendant] poses a great danger to society.” (Id. at p. 17.)
Here, as in Gonzales and Em, Espinoza was involved in a gang-related murder involving a firearm. He was carrying the gun during the confrontation and chose to shoot it. There was no evidence that Candelo was directing deadly force at any of the Lopers, let alone at Espinoza. Rather than revealing his acts to be thoughtless and impetuous, we think the record indicates Espinoza shot because he had the opportunity to kill someone, thereby gaining the respect of his fellow gang members. Contrary to Espinoza’s assertion that he was “loosely connected” to the Lopers, there was strong evidence that he was an active participant. Both Gutierrez and Malaga testified he was a member, and his older brother was also a member. Furthermore, he was hanging out with Lopers members, one of whom entrusted him with the gang gun.
In In re Nunez (2009) 173 Cal.App.4th 709, this court granted a petition for habeas corpus by a petitioner who had received a sentence of life imprisonment without the possibility of parole for kidnapping for ransom. The petitioner was 14 years old at the time of the offense, and no one was killed or injured during the crime. The petitioner presented evidence that he had “a slender history of criminality and... compelling evidence of a vulnerable and defensive state of mind, here precipitated by a tragic, unrebutted posttraumatic stress disorder condition.” (Id. at p. 732.) In contrast, Espinoza received 50 years to life, with the possibility of parole, for a first degree murder in which he was the shooter. Furthermore, Espinoza presented no evidence of his background or character that demonstrated the sentence was grossly disproportionate in his unique circumstances.
For the reasons discussed above, the sentences of Sanchez and Espinoza do not violate the United States Constitution. “The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” (Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.) The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. (Id. at p. 995.) In Ewing v. California (2003) 538 U.S. 11, the Supreme Court held that a sentence of 25 years to life under the “Three Strikes Law” was not disproportionate in violation of the Eighth Amendment, even for a non-violent crime, when imposed on a defendant who stole three golf clubs priced at $399 apiece and had prior convictions for a myriad of offenses. (Id. at pp. 17-18, 30.)
Espinoza points to United States Supreme Court decisions which hold it is unconstitutional to impose the death penalty on minors. (Roper v. Simmons (2005) 543 U.S. 551; Thompson v. Oklahoma (1988) 487 U.S. 815.) But the death penalty is subject to “‘a series of unique substantive and procedural restrictions’ that do not apply to lengthy terms of imprisonment.” (People v. Demirdjian (2006) 144 Cal.App.4th 10, 14.)
In a related argument, Espinoza contends the prosecutor’s decision to try him as an adult violated federal due process. He argues this court should follow the reasoning of the dissent in Manduley v. Superior Court (2002) 27 Cal.4th 537, 598-599 (dis. opn. of Kennard, J.). This reasoning was rejected by the majority in Manduley, which we are bound to follow under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgments are affirmed.
WE CONCUR: BEDSWORTH, J.FYBEL, J.