Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. VA083023, John A. Torribio, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
A jury convicted defendant and appellant David Mariscal (defendant) of one count of first degree murder (Pen. Code, § 187, subd. (a)) (count 1) and one count of discharging a firearm at an occupied vehicle (§ 246) (count 2). The jury found true the special allegations as to both counts that defendant personally discharged a firearm (§ 12022.53, subds. (b)-(d)) (the firearm enhancement) and that defendant committed his crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)) (the gang enhancement). Defendant was sentenced to a total of 90 years to life. On count 1, defendant was sentenced to prison for 50 years to life, consisting of 25 years to life for the murder plus a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). With respect to the gang enhancement, defendant’s sentence on count 1 was enhanced pursuant to section 186.22, subdivision (b)(5), requiring that defendant serve a minimum of 15 calendar years before he is eligible for parole. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) On count 2, defendant was sentenced to a consecutive prison term of 40 years to life, consisting of a mandatory term of 15 years to life pursuant to section 186.22, subdivision (b)(4)(B), plus a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)).
All statutory references are to the Penal Code.
Section 186.22, subdivision (b)(4)(B) provides in relevant part, “Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: . . . [¶] (B) Imprisonment in the state prison for 15 years, if the felony is . . . a felony violation of Section 246 . . . .”
We reverse the gang enhancement on count 2 for insufficiency of the evidence. We also agree with both parties that the firearm enhancement under section 12022.53, subdivision (d) was not properly imposed on count 2 and must be stricken. We remand for resentencing on count 2. In all other respects, we affirm the judgment.
BACKGROUND
A. Factual Background
1. The Prosecution Case
Defendant was a member of the Culver City Boys street gang. Defendant became friends with fellow gang-member Daniel Valencia (Valencia). In 1997, Valencia and defendant were arrested together for attempting to steal a car. Valencia was convicted and sentenced to state prison; defendant, who was a juvenile, was never charged. Based on information in the police report, Valencia believed that defendant had “snitched him out.” Valencia was released from prison in April 1999. Valencia ended his friendship with defendant. After Valencia was released from prison, Valencia went to work in his parents’ taxicab company.
Valencia’s mother knew defendant from the years he and Valencia were friends, but she had not seen defendant since Valencia had been released from prison. In late December 2002, Valencia’s mother saw defendant in front of Valencia’s house in a car with a man later identified as Carlos Diaz, also a member of Culver City Boys. Defendant stopped the car at a stop sign near Valencia’s house and looked toward the house. Defendant drove the car around the block, then passed by the house again, stopping in the same place and again looking toward the house. Defendant repeated this three times. Valencia’s mother went inside and asked Valencia to move her car. Valencia refused, saying, “What do you want? Do you want them to kill me?”
In the early morning hours of December 28, 2002, Valencia was at a strip club with his friend Juan Rodriguez. Valencia mentioned that he was upset with defendant. At approximately 2:00 a.m., Valencia received a telephone call from his uncle, Jesse Rincon, also a member of Culver City Boys. Valencia told Rodriguez that he had to take care of something. They drove to a house in Watts owned by the Cifuentes family. A party was in progress, with approximately 20 people present. Valencia got out of the car to talk to a former girlfriend. At some point, Rodriguez noticed that Valencia was gone. Rodriguez had not seen a gun in Valencia’s possession.
Rincon died prior to trial, but not from this incident.
That same evening, Jesse Rincon was at the Hurricane Bar in Lawndale with Reina Carillo. Steve Haro, another member of Culver City Boys, arrived at the bar with defendant. After the bar closed, Rincon and Reina Carillo drove to the party at the Cifuentes house in Rincon’s SUV. Rincon saw Rodriguez in Valencia’s taxicab and asked where Valencia was. A few moments later they heard two gunshots. A short time afterward, a car sped past.
Rodriguez testified that Rincon and Carillo drove off in pursuit of the car. In contrast, Carillo testified at trial that Rincon was taking her home when “all of a sudden there was a car” and “a lot” of gunshots from the car; Rincon rammed his SUV into the car in self defense, and then fled. Carillo had told police shortly after the incident, however, that she and Rincon chased the car. When Rincon pulled his SUV alongside the car, the driver of the car shot at them. Rincon rammed the car at least twice, causing it to spin out of control. Rincon and the driver of the car got out; the driver shot at them several times. Carillo was hit in the leg. Police later determined that Rincon’s SUV had been shot at least four times. One bullet hit the interior of the driver’s side door, indicating that the door was open when the bullet was fired. No weapons or shell casings were recovered from the SUV.
Valencia was found lying dead in the street a few blocks from the Cifuentes house. He had been killed by two shots to the head, fired from a range of six to 18 inches. His t-shirt was tucked into the front of his pants, and there was no dress shirt found at the scene. No shell casings were found at the scene, but the coroner recovered bullet fragments from Valencia’s skull.
Police found defendant’s Acura Legend approximately one mile from Valencia’s body. The car had significant collision damage. The passenger side interior of the car was splattered with blood and human tissue. DNA analysis determined that the tissue was Valencia’s. Police found one .40 caliber shell casing inside the car and another on the outside of the car in the windshield well, resting near the windshield wiper. Several shell casings were found in the street. Forensic analysis determined that the shells had been fired by the same Beretta semi-automatic handgun as the bullet fragments recovered from Valencia’s body. Police found defendant’s cell phone in the car. Fingerprints belonging to gang members Carlos Diaz and Steve Haro were also recovered from the car. There were no bullet holes in the Acura.
When examining telephone records, police discovered a “considerable” number of telephone calls between defendant’s cell phone and a cell phone belonging to Steve Haro’s girlfriend; Haro’s girlfriend told police that she had loaned the phone to Haro. By tracing the cell relay towers used in transmitting defendant’s telephone calls, police determined that defendant was in the area of Valencia’s murder. Police discovered several short calls just before the murder between Valencia and Rincon, and calls at about the time of the murder between defendant and Rincon, and between Carlos Diaz and Rincon.
Police were unable to locate defendant. Charges were filed against defendant and an arrest warrant issued. Nearly two years later, in November 2004, defendant was arrested near Amarillo, Texas and extradited to California.
2. The Gang Evidence
Officer Michael Johnson of the Los Angeles Police Department testified that he worked in the gang detail for the west Los Angeles area, and was assigned primarily to Culver City Boys. Before that, Officer Johnson had been assigned to the gang detail in the Watts area, where the murder took place.
Officer Johnson testified that there were over 250 members of Culver City Boys and that, as any other organization, internal politics was a factor in determining an individual’s standing within the gang. Of greatest importance was the individual’s reputation. Officer Johnson testified, “The reputation of a gang member is everything to them, and disrespect to him or anything that he is about again is dealt with very severely—discipline, murder, severe repercussions for defaming someone’s reputation.” Within a gang, Officer Johnson testified, “[a] rat or a snitch . . . is probably the most despised person in their eyes. . . . They provided information on a fellow gang member. It’s looked upon probably in greater disdain than a rival gang member. [¶] . . . [T]hey would rather kill a member of Culver City, their own gang, who is a rat, a snitch, an informant. They would rather kill them probably than a rival [gang] member because it’s a cancer within . . . .” A gang member whose reputation has been tarnished by an allegation that he snitched would not rise within the gang because he could not be trusted. Officer Johnson testified that, in the eighteen months prior to trial, three members of the Culver City Boys had been killed by members of their own gang “because, according to other members of the gang, they were viewed as being a rat or a snitch.”
Officer Johnson opined that a killing like the one in this case would be “in furtherance of” or “in association with” the gang. Officer Johnson testified that a gang member accused of being a snitch could rehabilitate his reputation within the gang by “first of all, [doing] everything to show that it’s not true and then show that [he is] violent enough that if anybody calls them that, they’re going to take them out.” Such internal violence also benefits the gang as a whole, Officer Johnson testified, because word of the killing would reach members of rival gangs, people in the gang’s neighborhood, and higher level gang members associated with the Mexican Mafia. It “raises the level of esteem within the gang . . . . [¶] [I]t intimidates rivals as well, showing them that [the gang is] violent enough to take out [its] own members. They are certainly violent enough and ruthless killers that they will take out the rivals as well.”
3. The Defense Case
Defendant testified that, sometime after Valencia was released from prison in 1999, he called defendant to demand that defendant pay him money because Valencia believed that defendant had “snitched him out” on the car theft charge. Defendant refused to pay. Defendant did not speak to Valencia again until the night of the murder.
On the night of the murder, defendant went to the Hurricane Bar with Carlos Diaz and Steve Haro. He saw Rincon there, whom he knew from the neighborhood. Rincon took defendant outside and asked what was “up” with defendant and Valencia, and asked defendant about the police report indicating that defendant had given information to the police. Defendant admitted the police report was accurate. Rincon said he wanted to “deal with” the situation once he had seen the police report himself. When the bar closed, defendant drove Carlos Diaz and Steve Haro to the Cifuentes house. Diaz and Haro went into the house.
When defendant went to park his car, Valencia walked up and got in. He directed defendant to drive for a few blocks. Valencia was wearing a baseball jersey and jeans. When they pulled over, Valencia told defendant to get out of the car. As defendant started to do so, Valencia pulled out a gun. Defendant grabbed the gun and shot Valencia. Defendant pulled Valencia’s body out of the car. He went back to the Cifuentes house “[t]o tell everyone what happened.”
When defendant arrived at the Cifuentes house, Rincon walked up to his car and asked where Valencia was. Defendant said he didn’t know and drove off. Rincon chased defendant in Rincon’s SUV and rammed defendant’s car. Defendant tried to flee, but Rincon rammed his car again. Defendant lost control and crashed the car. Defendant saw Rincon’s SUV “right there, so [he] shot him.” Defendant testified that he was “trying to get him [Rincon] away from me because I figured he [Rincon] was probably going to run up on my car.” Rincon drove away. Unable to start his car, defendant fled on foot.
Defendant spent the next two years traveling to Mexico, Chicago, Detroit, Las Vegas and Texas, doing “little side things” to support himself. On cross-examination, defendant conceded that he had told his cousin, referring to O.J. Simpson and Robert Blake, “If all those mother fuckers beat their shit. If they beat it, I should be able to beat it.” But defendant added, “those guys [O.J. Simpson and Robert Blake] had bad cases and they beat them—I’m not a celebrity. I don’t beat cases like that.”
An expert criminologist, Dr. Lewis Yablonsky, also testified on defendant’s behalf. He testified that the murder was not for the benefit of a gang, based on a set of factors he devised through his research. Dr. Yablonsky concluded that the incident was spontaneous, rather than premeditated; no gang signs were “thrown”; the perpetrator did not announce his gang affiliation; the motive was individual rather than gang related; there was no territorial issue; the incident was not between rival gangs; the gang’s reputation was not enhanced; and the victim and perpetrator were both in the same gang.
DISCUSSION
A. Jury Instruction Regarding Antecedent Threats
Defendant argues that the trial court erred by failing to instruct the jury with CALJIC No. 5.50.1, which provides that the jury may consider previous assaults or threats of physical harm against a defendant by the victim in considering whether a defendant acted in self-defense. Defendant concedes, however, that he did not request the instruction, and that the trial court had no duty to give the instruction sua sponte. (People v. Garvin (2003) 110 Cal.App.4th 484, 489.) Defendant therefore forfeited the issue. (People v. Marks (2003) 31 Cal.4th 197, 236-237; People v. Weaver (2001) 26 Cal.4th 876, 986; People v. Arias (1996) 13 Cal.4th 92, 171; see also People v. Ramirez (2006) 39 Cal.4th 398, 472-473 [defendant forfeited instructional error when counsel withdrew proposed instruction upon trial court’s request].)
CALJIC No. 5.50.1 states, “Evidence has been presented that on [a] prior occasion[s] the alleged victim [threatened] [or] [assaulted] [or participated in an assault or threat of physical harm upon] the defendant. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed [his] [her] life or physical safety was endangered at the time of the commission of the alleged crime. [¶] In addition, a person whose life or safety has been previously threatened, or assaulted by [another] [others] is justified in acting more quickly and taking harsher measures for self protection from an assault by [that person] [those persons], than would a person who had not received threats from or previously been assaulted by the same person [or persons].”
The substance of CALJIC 5.50.1 is now incorporated in CALCRIM No. 505. (See CALCRIM No. 505 [“[If you find that <insert name of decedent/victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.]”.) Defendant contends that it is thus “no longer necessary . . . to request a separate jury instruction relating antecedent threats to a claim of self-defense . . . .” This is incorrect. As the Bench Notes to CALCRIM No. 505 state, citing People v. Garvin, supra, 110 Cal.App.4th at p. 489, the antecedent threat instruction need be given only “[o]n defense request and when supported by sufficient evidence . . . .”
Defendant argues in the alternative that his trial counsel rendered ineffective assistance by failing to request the instruction on antecedent threats, in violation of defendant’s rights under the United States and California constitutions. The burden is on defendant to demonstrate that he is entitled to relief because of his counsel’s ineffective assistance. (In re Lucas (2004) 33 Cal.4th, 682, 721; see Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) To do so, defendant “ ‘ “ ‘must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” [Citations.] This second part of the Strickland test ‘is not solely one of outcome determination. Instead, the question is “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” [Citation.]’ [Citation.]” (In re Hardy (2007) 41 Cal.4th 977, 1018-1019.) “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland, supra, 466 U.S. at p. 697; In re Scott (2003) 29 Cal.4th 783, 825; In re Ross (1995) 10 Cal.4th 184, 204; see In re Lucas, supra, 33 Cal.4th at pp. 731-736.)
Defendant has failed to establish the required prejudice. First, the jury was instructed on the issues relevant to defendant’s contention that he acted in self-defense. The jury was instructed, per CALJIC No. 5.12, that the killing was not unlawful if defendant “actually and reasonably believe[d]” that he was in “imminent danger” and that it was “necessary under the circumstances for him to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to himself.” The jury was further instructed that defendant’s fear was reasonable if the circumstances were such that “a reasonable person placed in a similar position” (italics added) would have feared death or great bodily injury. No instruction precluded the jury from considering antecedent threats.
Second, defense counsel argued to the jury that defendant feared Valencia and Rincon, and that his fear was reasonable because, inter alia, of the purported antecedent threat made by Rincon. Defendant thus presented his theory of the case to the jury, even in the absence of the instruction.
Third, evidence of the purported antecedent threats by Valencia and Rincon was, at best, equivocal. CALJIC 5.50.1 describes antecedent threats in terms of “an assault or threat of physical harm.” There was no evidence of a prior assault against defendant by anyone. With respect to “threats of physical harm,” defendant contends on appeal that Valencia threatened him in a telephone conversation after Valencia was released from prison. As defendant described the conversation, “He [Valencia] said that he had been out [of prison] and that, because of that incident . . . [¶] . . . he could be like the next time he gets arrested he’d be fighting a three-strikes case. So he wanted me to pay him, and I told him I ain’t giving him nothing. I ain’t paying him.” Defendant did not testify to any overt threat of physical harm in that conversation, and defendant’s trial counsel did not characterize that conversation as a threat in his argument to the jury—defense counsel did not mention the conversation with Valencia at any point in his argument. Furthermore, defendant did not specify when the conversation occurred—it might have occurred at any time after Valencia was released from prison in April 1999, more than three and a half years before the killing. Defendant testified that he did not speak to Valencia again until immediately before the shooting. There was thus no substantial evidence of “an assault or threat of physical harm” against defendant by Valencia.
Defendant also argues on appeal that Rincon threatened defendant at the Hurricane Bar earlier on the night of the killing. Again, defendant’s trial testimony is unclear. Defendant testified that he went outside the bar to talk to Rincon. “When we went outside he had asked me what’s up with me and Danny [Valencia]. What’s going on with me and Danny. I told him, ‘What do you mean? What’s going on?’ He was—he was just, like, ‘You know what I’m talking about.’ ‘No. What are you talking about?’ [¶] He mentioned that Danny said he has you on a police report. . . . [¶] . . . So I told him, yeah, he does have that. That did happen like that.” Rincon then told defendant that “he [Rincon] wants to get his hand on that paperwork because he wants to deal with it.” There was no physical altercation between the defendant and Rincon; when asked if the conversation was threatening, defendant answered, “Yeah, it was going that route.” Again, there was no assault or overt threat of physical harm against defendant. The phrase “to deal with it,” which defendant ascribed to Rincon, is inherently ambiguous.
Further, and most important, the jury’s verdict is inconsistent with the conclusion that an instruction per CALJIC 5.50.1 would have altered the outcome. The instruction on antecedent threats in CALJIC No. 5.50.1 concerns whether the defendant’s belief that his life or safety was endangered was reasonable. (People v. Pena (1984) 151 Cal.App.3d 462, 476.) The instruction therefore might influence a jury verdict when the jury has concluded that a defendant actually and subjectively believed himself to be in danger, so that the issue the jury must decide is whether defendant’s belief was reasonable. It is not reasonably likely, however, that the jury in this case ever reached that issue.
The jury convicted defendant of first degree murder. The trial court instructed the jury, per section 189 and CALJIC 8.20, that first-degree murder required “that the killing was preceded by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation . . . [¶] . . . [¶] To constitute deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.” (Italics added.) Had the jury concluded that defendant acted from a subjective but unreasonable fear that he was in danger—that is, that defendant acted in imperfect self-defense—then the jury could not have convicted defendant of willful, deliberate and premeditated murder. “‘Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.’” [Citation.] ‘Imperfect self-defense obviates malice because that most culpable of mental states “cannot coexist” with an actual belief that the lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand. [Citations.]’ [Citation.]” (People v. Randle (2005) 35 Cal.4th 987, 995; see also People v. Curtis (1994) 30 Cal.App.4th 1337, 1363-1364 [conviction of homicide crime requiring malice aforethought necessarily eliminated possibility that homicide was excusable].)
Accordingly, had the jury believed that defendant acted in imperfect self-defense, it could have convicted defendant only of second degree murder or manslaughter. The jury was instructed on both. With respect to manslaughter, the trial court instructed the jury, per CALJIC 5.17, “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder.” (Italics added.) The jury’s findings are thus inconsistent with the conclusion that an instruction on antecedent threats would have altered the outcome.
Finally, defendant’s story was that Valencia pulled a gun on him while the two of them were in defendant’s car, and that defendant wrested the gun away from and shot Valencia in self-defense. Defendant did not testify that he killed Valencia because he was put in fear of his life by antecedent threats from either Valencia or Rincon. The jury’s findings indicate that the jury rejected defendant’s account of the murder. Accordingly, there is no reasonable probability that the result would have been different had the jury been instructed with CALJIC No. 5.50.1.
Concurrent with filing his opening brief on appeal, defendant petitioned for a writ of habeas corpus on the sole ground that petitioner received ineffective assistance of counsel because his trial counsel failed to request a CALJIC 5.50.1 instruction. (In re Mariscal, No. B201051.) We denied defendant’s motion to consolidate the petition with this appeal, stating that we would consider the petition concurrently with the appeal. For the reasons stated in Discussion, Part A of this opinion, defendant’s petition is denied.
B. Jury Instruction Regarding Self-Defense on Count 2
Defendant next argues that the trial court erred by failing to instruct the jury sua sponte on self-defense pursuant to CALJIC No. 5.30 specifically with respect to count 2, which charged defendant with shooting at Rincon’s SUV. Defendant contends that the trial court’s self-defense instruction pertaining to the murder charge in count 1 (CALJIC 5.12) was inadequate with respect to count 2 because, by its terms, it related only to acts of self-defense that result in a killing. The act charged in count 2 did not result in a killing.
We assume, without deciding, that the trial court had a sua sponte duty to instruct the jury on non-homicidal self-defense. We nevertheless conclude that the jury was adequately instructed on that issue. Jury instructions “ ‘ “may not be judged in artificial isolation, but must be viewed in the context of the overall charge’ ” [citation].” (People v. Haskett (1990) 52 Cal.3d 210, 235.) If the entire set of instructions covers the relevant issues, there is no error in the trial court’s failure to give one particular instruction. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1144; People v. Seaton (2001) 26 Cal.4th 598, 664; People v. Wright (1961) 55 Cal.2d 560, 563; People v. Pena, supra, 151 Cal.App.3d at p. 475 [the “adequacy of instructions given . . . will be determined from our examination of the entire charge of the court”]; see also Levenson, California Criminal Procedure (2006-2007 ed.) § 23:56 at pp. 1023-1024.)
CALJIC No. 5.30 states, “It is lawful for a person who is being assaulted to defend [himself] [herself] from attack if, as a reasonable person, [he] [she] has grounds for believing and does believe that bodily injury is about to be inflicted upon [him] [her]. In doing so, that person may use all force and means which [he] [she] believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.” The instruction thus communicates two distinct concepts: (1) fear of injury—that is, a person who honestly and reasonably believes he or she is in danger of bodily injury may defend him- or herself; and (2) reasonable force—that is, the person endangered may use such force as is reasonably necessary to prevent the injury.
Both of those concepts were communicated to the jury. The first concept (fear of injury) was communicated to the jury in the trial court’s instruction pursuant to CALJIC No. 5.51. The trial court instructed, in relevant part, “If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.”
The second concept (reasonable force) was communicated to the jury in the trial court’s instruction pursuant to CALJIC No. 5.50. The trial court instructed, in relevant part, “In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge.” These instructions are clarifying instructions that restate and expand upon the concepts included in CALJIC No. 5.30. The jury was thus instructed regarding the legal concepts that defendant contends were relevant to his claim of self-defense with respect to count 2, and both the prosecutor and defense counsel argued the issue to the jury. These instructions were not limited to any specific count.
In any event, even if the trial court erred in failing to instruct the jury pursuant to CALJIC No. 5.30, the error was harmless under the test set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Randle (2005) 35 Cal.4th 987, 1003; People v. Blakeley (2000) 23 Cal.4th 82, 93.) As noted above, the jury was apprised of the legal concepts relevant to self-defense, defendant presented his claim of self-defense with respect to count 2, and both parties argued that claim to the jury. (See People v. Gonzales (1992) 8 Cal.App.4th 1658, 1664 [failure to instruct on antecedent threats harmless when, inter alia, both parties “thoroughly aired this subject in argument”].) Further, as communicated to the jury with respect to count 1, defendant’s use of deadly force against Rincon would have been justified only if defendant actually and reasonably believed that Rincon posed an imminent danger of death or great bodily injury at the time defendant fired the shots at Rincon. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; In re Christian S. (1994) 7 Cal.4th 768, 783.) Defendant’s theory on appeal is that defendant believed that Rincon was a threat because he was going to ram defendant’s car with his SUV, which constituted a “deadly weapon” under the circumstances. The trial evidence was not consistent with that theory, however, nor did defense counsel argue that theory to the jury. It was undisputed at trial that one of the bullets fired by defendant hit the interior of the driver’s side door of Rincon’s SUV, and that all of the bullets that hit the SUV were traveling at an angle from left to right and from the back of the SUV toward the front. This indicates that Rincon’s SUV was angled away from and with its rear toward defendant when defendant fired the shots, and that the driver’s side door of the SUV was open. This is inconsistent with the notion that Rincon was preparing to ram defendant’s vehicle.
Furthermore, defendant did not testify that he actually and subjectively believed that Rincon was about to ram him. Instead, defendant testified on cross-examination that he “thought he [Rincon] was going to run up to my car and probably shoot me or something. That’s when I shot at him like that.” (Italics added.) “I thought he [Rincon] was going to walk up to me. I thought he was probably going to kill me or something.” Defendant also testified that he had not seen Rincon with a gun. Accordingly, there was not substantial evidence that defendant actually or reasonably feared imminent death or great bodily injury when he fired four shots at Rincon’s SUV. It is not reasonably probable that, had the trial court instructed the jury pursuant to CALJIC No. 5.30, the jury would have concluded that defendant’s use of deadly force against Rincon was justified.
C. Cautionary Instruction Regarding Defendant’s Out-of-Court Statements
Defendant next argues that the trial court erred by failing to give the jury a cautionary instruction pursuant to CALJIC No. 2.71, with respect to an out-of-court statement by defendant offered as an admission by the prosecutor. During cross-examination, the prosecutor and defendant engaged in the following colloquy:
CALJIC No. 2.71 provides, “An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [¶] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]”
“Q. [PROSECUTOR] You think you can beat this case, don’t you?
“A. [DEFENDANT] No. The case is what it is. I take responsibility for my actions, but I don’t think it’s the way you are trying to make it out to be.
“Q. Didn’t you tell your cousin Ruben that you can beat this case?
“A. Well, I mean anything is possible.
“Q. Didn’t you tell them that you can be just like O.J. and Robert Blake?
“A. No. I mean—what I meant by that is reasonable doubt as far as, you know, the jury goes. If these guys had bad cases and they beat them—I’m not a celebrity. I don’t beat cases like that.
“Q. Didn’t you say if—referring to O.J. and Robert Blake, ‘If all those mother fuckers beat their shit. If they beat it, I should be able to beat it’?
“A. I probably said that. I say a lot of crazy things sometimes.”
The prosecutor offered, without objection from the defense, a transcript and audio recording of defendant’s conversation containing the statement about O.J. and Robert Blake. The trial court excluded the transcript and recording on its own initiative, however, on the ground that defendant admitted to making the statement.
Defendant contends that the transcript was distributed to the jury before the court ordered it excluded. The record is unclear. Immediately after offering the transcript, the prosecutor asked for its return because she had “handed out the wrong one.” The trial court instructed that copies of the transcript be returned and remarked that “[j]ust one of them was given out.” During a subsequent sidebar conference relating to a different subject, there was some confusion over whether the transcript had been distributed. Even if we assume that the jury saw the transcript of the excluded conversation, defendant identifies no prejudice given that defendant admitted that he “probably” made the statement in question.
Generally, a trial court has a sua sponte duty to give a cautionary instruction when the jury is presented with evidence of an out-of-court admission by the defendant. (People v. Carpenter (1997) 15 Cal.4th 312, 392; People v. Beagle (1972) 6 Cal.3d 441, 455.) An admission is “any extrajudicial statement—whether inculpatory or exculpatory—‘which tends to prove [a defendant’s] guilt when considered with the rest of the evidence.’” (People v. Mendoza (1987) 192 Cal.App.3d 667, 676; People v. Brackett (1991) 229 Cal.App.3d 13, 19-20.) “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.]” (People v. Beagle, supra, 6 Cal.3d at p. 456.) Thus, a cautionary instruction should not be given when the statement has been recorded and the recording is played for the jury. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200; People v. Mayfield (1997) 14 Cal.4th 668, 776.)
In this case, defendant’s statement was recorded, but the recording was not played for the jury because, in the trial court’s opinion, defendant’s testimony that he “probably said that” was a testimonial admission that he made the statement. Because there was no question about whether defendant actually made the statement, the cautionary instruction was unnecessary.
As an alternative basis, failure to give a cautionary instruction “does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (People v. Beagle, supra, 6 Cal.3d at p. 455.) When evidence of a defendant’s extrajudicial admission is uncontroverted—that is, defendant introduced no evidence that the statement was not made, was fabricated, or was inaccurately reported—there is no probability that the jury would have reached a result more favorable to defendant had the cautionary instruction been given. (People v. Dickey (2005) 35 Cal.4th 884, 906; People v. Edwards (1991) 54 Cal.3d 787, 843-844; People v. Pensinger (1991) 52 Cal.3d 1210, 1268; People v. Stankewitz (1990) 51 Cal.3d 72, 94.) In this case, rather than controvert the statement, defendant admitted that he “probably said that.” Defendant was not prejudiced by the trial court’s failure to give the cautionary instruction.
D. The Gang Enhancement
Defendant attacks the sufficiency of the evidence supporting the jury’s finding that his crimes were 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).) Specifically, defendant contends that the opinion of the prosecution’s gang expert, Officer Michael Johnson, that the murder benefited the Culver City Boys gang was mere speculation, and that the record contains no evidence that defendant committed his crimes with the “specific intent” “to promote, further, or assist in any criminal conduct by gang members[.]” (Ibid.) We disagree with defendant with respect to count 1, but find the evidence insufficient to sustain the gang enhancement with respect to count 2.
Section 186.22, subdivision (b)(1) provides, in relevant part: “. . . [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as [specified].”
“‘In determining the sufficiency of the evidence, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]’” (People v. Kelly (2007) 42 Cal.4th 763, 787-788.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) We will reverse for insufficient evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the conviction or enhancement. (People v. Manriquez (2005) 37 Cal.4th 547, 577.) This standard of review applies to gang enhancement findings. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508; People v. Villalobos (2006) 145 Cal.App.4th 310, 322-323.)
1. Count 1
To establish a violation of section 186.22, subdivision (b)(1), the prosecution must establish that (1) the defendant’s crime was committed for the benefit of, at the direction of, or in association with any criminal street gang, and (2) defendant had the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Villalobos, supra, 145 Cal.App.4th at p. 323.) With respect to the first element, “specific intent to benefit the gang is not required.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1197.) Evidence that a crime would enhance the gang’s status or reputation, or would intimidate rival gangs or potential witnesses within the gang’s territory, is sufficient to support a finding that the crime was “for the benefit of” the gang. (See People v. Garcia (2007) 153 Cal.App.4th 1499, 1504-1506, 1511-1512 [crime of carrying a loaded unregistered weapon benefited gang because “the gang’s status would increase if defendant were reputed to possess a firearm”]; see also People v. Morales, supra, 112 Cal.App.4th at p. 1197 [gang expert testimony that the “crime would benefit the individual gang members with notoriety among the gang, and the gang with notoriety among rival gang members and the general public”].) Further, evidence that a crime was committed “in association” with the gang will suffice even if there is no showing that the crime was for the benefit of the gang. (People v. Morales, supra, 112 Cal.App.4th at p. 1198). Although a perpetrator’s mere membership in the gang does not suffice to establish that the crime was committed “in association with” the gang (People v. Albarran (2007) 149 Cal.App.4th 214, 227; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199), a “jury [can] reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (People v. Morales, supra, 112 Cal.App.4th at p. 1198 .)
The evidence with respect to count 1 was sufficient to support a finding that defendant murdered Valencia “for the benefit” and “in association” of the Culver City Boys gang. The evidence established, and defendant does not contest, that Culver City Boys is a criminal street gang, and that defendant was a member. In response to a hypothetical question, Officer Johnson opined that a killing similar to the killing in this case would benefit not only the individual gang member seeking to rehabilitate his reputation, but would also be “in furtherance of the gang.” Word that members of the gang are “cold-blooded killer[s]” would spread to rival gangs, people in the gang’s neighborhood, and higher level gang members associated with the Mexican Mafia. “It raises the level of esteem of the gang as well that they are a violent gang and they’re taking out their own members.” This “intimidates rivals” because if the gang is violent enough to take out its own members then it is “violent enough and ruthless killers that they will take out the rivals as well.” Although Officer Johnson’s conclusion might seem counterintuitive—the benefit to the gang would be easier to see if the accused snitch were the victim rather than the perpetrator—defendant does not challenge Officer Johnson’s qualifications as an expert or the admissibility of his expert opinion, and we have no basis to reject his testimony as a matter of law. There was thus sufficient evidence to support the jury’s conclusion that defendant murdered Valencia “for the benefit” of the gang.
In any event, even if the murder was not “for the benefit” of the gang, there was sufficient evidence to support a finding that defendant murdered Valencia “in association with” the gang. The evidence was undisputed that Carlos Diaz and Steve Haro were both gang members. Valencia’s mother testified that, a few days before the murder, she saw defendant and Carlos Diaz drive slowly by Valencia’s house at least three times, looking at the house. Valencia refused to go outside when asked by his mother, afraid that he might be killed. The fingerprints of both Diaz and Haro were found in defendant’s car after the murder. The jury heard evidence of phone calls between defendant and Haro the night of the murder, and phone calls between defendant and Rincon and Diaz and Rincon at about the time of the murder. A reasonable jury could infer that Diaz and Haro assisted defendant in locating Valencia knowing of defendant’s intent to harm Valencia, and that Diaz assisted defendant in attempting to prevent Rincon from taking retribution against defendant for Valencia’s murder. The involvement of Diaz and Haro is supported by defendant’s own testimony that, after he killed Valencia, he did not flee or call police or call for medical assistance (even though defendant had his cell phone with him in the car), but instead drove back to the Cifuentes house to tell his fellow gang members in person what he had done. Defendant testified that he “drove off” without doing so when Rincon saw defendant pulling up to the house and asked where Valencia was.
With respect to the specific-intent element, evidence that defendant’s own criminal conduct was gang related (People v. Hill, 142 Cal.App.4th 770, 774), or that defendant committed a crime in concert with known gang members, is sufficient to support a finding that defendant intended to promote, further, or assist in any criminal conduct by gang members. (People v. Villalobos, supra, 145 Cal.App.4th at p. 322; People v. Romero (2006) 140 Cal.App.4th 15, 20; People v. Morales, supra, 112 Cal.App.4th at pp. 1198-99). Contrary to defendant’s suggestion, section 186.22, subdivision (b)(1) does not require proof that defendant had the specific intent to promote, further, or assist other, additional criminal conduct by the gang. (People v. Hill, supra, 142 Cal.App.4th at p. 774.) Rather, the plain language of section 186.22, subdivision (b)(1) requires specific intent “to promote, further or assist any criminal conduct by gang members.” (§ 186.22, subd. (b)(1), italics added.)
Defendant relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, holding that section 186.22, subdivision (b)(1) requires specific intent to further other, additional crimes by gang members. The holding in Garcia, however, has been rejected by the California courts as a misinterpretation of California law. (People v. Romero, supra, 140 Cal.App.4th 15, 19; People v. Hill, supra, 142 Cal.App.4th at p. 774.)
Defendant’s murder of Valencia was itself gang-related criminal conduct by a gang member that defendant specifically intended to “promote, further or assist.” Defendant does not challenge the sufficiency of the evidence supporting the jury’s conclusion that the murder was deliberate and premeditated. There is also sufficient evidence to support the conclusion that the crime was related to gang activities. Officer Johnson testified that a gang member accused of being a snitch could rehabilitate his reputation and enhance his standing within the gang by killing his accuser. Officer Johnson’s testimony is consistent with defendant’s testimony that, after shooting Valencia, he immediately went to tell his fellow gang members what he had done. As noted above, “specific intent to benefit the gang is not required.” (People v. Morales, supra, 112 Cal.App.4th at p. 1197.) There was thus sufficient evidence to support the jury’s finding on the gang enhancement with respect to count 1.
2. Count 2
Defendant argues that there was no evidence whatever to support the gang enhancement with respect to count 2. The People do not concede the point, but offer no argument to the contrary. We agree with defendant that the evidence was insufficient. The evidence with respect to count 2 was that defendant shot at Rincon’s SUV after Rincon pursued defendant and twice rammed defendant’s car. There was no evidence or jury finding that the crime was planned or premeditated, or that defendant acted in concert with other gang members. Officer Johnson offered no evidence or opinion with respect to count 2, and the prosecutor offered no argument to the jury regarding the gang enhancement specific to count 2. Accordingly, we reverse the gang enhancement as to count 2. Because the trial court imposed the mandatory sentence of 15 years to life on count 2 pursuant to section 186.22, subdivision (b)(4)(B), and did not select a base determinate term, we must remand for resentencing on count 2.
E. The Firearm Enhancement on Count 2
On count 2, the trial court sentenced defendant to an additional and consecutive prison term of 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d). The jury’s verdict form on count 2, however, contained no finding of a violation of subdivision (d) of section 12022.53. Rather, the jury found on count 2 that defendant violated section 12022.53, subdivisions (b) and (c). The parties agree that the sentence pursuant to subdivision (d) was improper and must be stricken.
The People urge us to modify the judgment to impose an additional and consecutive prison term of 20 years on defendant’s sentence for count 2 based on the jury’s finding that defendant violated section § 12022.53, subdivision (c). (See § 12022.53, subd. (f).) This we cannot do because, unlike subdivision (d), subdivisions (b) and (c) do not apply to convictions under section 246. Subdivisions (b) and (c) apply only to the crimes specified in section 12022.53, subdivision (a). Section 246 is not among the crimes specified in subdivision (a). Further, because we reverse the gang enhancement on count 2, defendant will be sentenced on remand to a determinate term on count 2 rather than the indeterminate life sentence required by section 186.22, subdivision (b)(4)(B). (§ 246.) Count 2 thus no longer qualifies as a “felony punishable by death or imprisonment in the state prison for life” under section 12022.53, subdivision (a)(17). Accordingly, all enhancements pursuant to section 12022.53 must be stricken with respect to count 2.
By its terms, section 12022.5., subdivision (d) applies to felony convictions under section 246 when great bodily injury or death results.
DISPOSITION
The gang enhancement pursuant to section 186.22, subdivision (b)(1) is reversed as to count 2 only. The trial court is instructed on remand to enter an order striking the firearm enhancement allegations pursuant to section 12022.53, subdivisions (b), (c) and (d) as to count 2 only. The matter is remanded for resentencing on count 2. In all other respects, the judgment is affirmed.
I concur: ARMSTRONG, J.
Turner, P. J.
I respectfully dissent from the reversal of the count 2 Penal Code section 186.22, subdivision (b)(1)(A) gang enhancement. I agree with my colleagues that there is substantial evidence to support the gang enhancement as to count 1—the shooting of Daniel Valencia. But I believe that there is likewise substantial evidence to support the jury finding that the gang enhancement applies equally to the events that occurred immediately after Mr. Valencia was killed—the chase and shooting at the green Denali driven by Jesse Rincon in which Reina Carillo was riding as charged in count 2. The statutory test is whether the chase and shooting at the green Denali was committed for the benefit of the gang at issue and to promote criminal conduct by gang members. (Pen. Code, § 186.22, subd. b)(1)(A).)
Juan Rodriguez testified he was at the gathering at Michelle Cifuentes’s grandmother’s residence. Mr. Rodriguez accompanied Mr. Valencia to Ms. Cifuentes’s grandmother’s residence. Mr. Valencia left Mr. Rodriguez. Prior to the murder, there were a number of cellular telephone calls between Mr. Valencia, the decedent, and Mr. Rincon. While at Ms. Cifuentes’s grandmother’s residence, Mr. Rodriguez heard two shots. Mr. Rodriguez looked at Mr. Rincon and thought, “[T]his isn’t good.” Mr. Rodriguez immediately began to try to contact Mr. Valencia via cellular telephone. Mr. Rodriguez saw “a car speed by” and Mr. Rincon “take off after” the speeding automobile. Mr. Rincon, who was driving the green Denali, immediately began to pursue the speeding car. Ms. Carillo was interviewed by Detective Mitch Robison. According to Detective Robison: Ms. Carillo stated that after she heard the shots, a compact car sped by; she got into the green Denali with Mr. Rincon; Mr. Rincon chased the compact car; Mr. Rincon caught up to the speeding compact; the driver of the compact shot at Mr. Rincon and Ms. Carillo while they were in the green Denali; Mr. Rincon then rammed the compact; the compact then sped off again; Mr. Rincon then rammed the compact causing it to spin out of control; Mr. Rincon and the driver of the compact got out of their respective cars; and the driver of the compact then once again shot at Mr. Rincon and Ms. Carillo, striking her.
Mr. Valencia’s body was found within one block of Ms. Cifuentes’s grandmother’s house. It was the fatal shots fired at Mr. Valencia which commenced the high speed chase and shooting. The chase between the Acura containing defendant and the green Denali driven by Mr. Rincon in which Ms. Carillo was the passenger lasted about one mile. The green Denali was found near the intersection of Central Avenue and Century Boulevard and was undriveable after the second collision. After the shootout at Central Avenue and Century Boulevard, defendant drove the Acura back towards Ms. Cifuentes’s grandmother’s residence and crashed into a fence near 97th Street and Beach Avenue.
Officer Michael Johnson testified that defendant was a member of the gang at issue. Officer Johnson testified a gang member’s reputation for violence was everything. Officer Johnson explained how a gang member enhances his reputation: “You have to do what’s called putting in work. You have to be on the street, earning your bones, if you will, they call it, making a reputation as a gang member for that particular gang. [¶] You have to be out there committing shootings. “ The primary activities of defendant’s gang were murder, drive-by shootings, assaults with deadly weapons, and narcotics sales.
Based on the foregoing, there is substantial evidence to support the count 2 Penal Code section 186.22 gang enhancement. As my colleagues explain, there is substantial evidence the count 1 murder of Mr. Valencia was carried out by defendant to further the gang’s purposes. Where I disagree with my colleagues is I believe there is also substantial evidence the count 2 offense, which occurred as defendant drove away from the shooting of Mr. Valencia, was also gang related. The proximity of the two circumstances is demonstrated by the fact that Mr. Rodriguez, Mr. Rincon, and Ms. Carillo all heard the shots that killed Mr. Valencia. The shooting, as demonstrated by exhibit 3, occurred within one block of where the gang members were gathered at Ms. Cifuentes’s grandmother’s residence. Defendant was chased by the green DeNali while fleeing the scene of the gang related killing of Mr. Valencia. Defendant had driven only a block from Mr. Valencia’s dead or dying body when the high speed chase commenced. Defendant shot from his car during the chase and after the second collision at the occupants of the green DeNali. The jury could reasonably find that defendant fired the shots as part of his effort to flee from the scene of the fatal shooting on 93rd Street. In other words, given the temporal and spatial proximity of the conduct, the jury could reasonably conclude the killing of Mr. Valencia and the immediately ensuing chase were part of the same course of gang related conduct. Additionally, the jury could reasonably conclude the chase and shootout involving Mr. Rincon and Ms. Carillo were in and of themselves conduct that fall within the ambit of Penal Code section 186.22 given Officer Johnson’s testimony about the role of shootings in the gang environment.