Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside, Richard T. Fields, Judge. Affirmed as modified with directions. Riverside Super. Ct. No. RIF115272
HUFFMAN, J.
A jury convicted Robert Martin Masiel of second degree murder (Pen. Code, § 187, subd. (a)) and found true allegations that he personally and intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subd. (d)) and committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)). After denying a new trial motion, the trial court sentenced Masiel to prison for indeterminate terms of 15 years to life for the murder and 25 years to life for use of a firearm, both consecutive to the determinate 10-year criminal street gang enhancement.
All statutory references are to the Penal Code unless otherwise specified.
The jury also specifically found that Masiel was not guilty of first degree murder and, in the interests of justice, the trial court granted the prosecutor's motion to dismiss an additional allegation under section 12022.5 that Masiel had personally used a firearm during the crime.
Masiel appeals, contending that there was insufficient evidence to support the jury's verdicts for the second degree murder and the street gang and firearm enhancements, that the trial court erred in failing to instruct the jury on misdemeanor-manslaughter based on brandishing a firearm, and that the 10-year street gang enhancement must be stricken. We concur with the People's concession on this latter point (see People v. Lopez (2005) 34 Cal.4th 1002, 1011) and modify the sentence to delete the 10-year gang enhancement. In all other respects, we affirm.
The trial court is directed to amend the abstract of judgment as modified and to indicate that Masiel "shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22, subd. (b)(5).)
Rather than include our usual "Factual Background," we recite the pertinent facts for each issue with its discussion.
I
SUFFICIENCY OF THE EVIDENCE
Because Masiel challenges the sufficiency of the evidence to support his conviction for second degree murder as well as the true findings on the firearm and street gang allegations, we must view the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment. (People v. Silva (1988) 45 Cal.3d 604, 625; People v. Johnson (1980) 26 Cal.3d 557, 576.) We resolve the issue based upon the entire record and determine whether there is substantial direct or circumstantial evidence of the existence of each element of the convicted offense or allegation found true. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11; Johnson, supra, 26 Cal.3d at p. 577.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of [Masiel's] crime [and the attendant allegation findings] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict [and findings]," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Here the record before the jury, viewed in accordance with these rules, showed that on March 12, 2002, the advanced putrefied body of 15-year-old Jenna L., who had run away from the California Family Life Center group home in Hemet, California (the group home) with several other girls, was discovered along a riverbed near the Soboba Indian Reservation in Riverside County. It was determined that Jenna had died from a single small caliber bullet that had pierced her heart and other vital organs before lodging in her back. Some blue wires were also found underneath her body.
During the subsequent investigation, Riverside County Sheriff's investigators interviewed the other young girls who had run away with Jenna from the group home on March 1, 2002. Two of the girls, also 15 years old at that time, Angel V. and Sandra V., had connections with Hispanic criminal street gangs in Oxnard and Los Angeles, California, respectively, and were girlfriends of members or associates of the Hispanic criminal street gang "San Ja" which claimed the city of San Jacinto, California. It was learned that Jenna, a Caucasian girl not connected to any gang, had stayed with Angel and Sandra at the home of Augustine P. (Auggie), a San Ja associate and Sandra's boyfriend, several days before her death, and that Masiel, who was Angel's boyfriend and whose San Ja moniker was "Dreamer," had also stayed at Auggie's the night before Jenna had died. It was also learned from Sandra that another San Ja member named "Criminal," had threatened to kill both her and Angel if they told the police anything about the disposal of Jenna's body.
As part of the investigation, Riverside County Sheriff's investigators met on March 14, 2002, with Criminal, whose real name is Carlos S. At that time, Criminal was driving a blue Buick Regal without any damage. The investigators also searched Auggie's home and garage and found numerous writings, clothing, photographs and other miscellaneous items showing his involvement, as well as Masiel's, in the San Ja criminal street gang.
That same date, Riverside County Sheriff's homicide detective Bruce Moore contacted Masiel at his home. When Moore first approached Masiel, Masiel told him he knew he was there to talk to him about the "missing girls." A search of Masiel's bedroom uncovered live shotgun shells, which he said he liked to take apart and toss at things.
Moore then interviewed Masiel at the sheriff's station, where he agreed to talk after waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436. In the interview, which was audio and videotaped, Masiel first told Moore he did not know anything, he was not a snitch, he had left Auggie's before the shooting, but then he slowly changed his story several different times, essentially claiming the shooting of Jenna was an accident and the gun had gone off as he was removing the gun from a bag or putting it away. He claimed he ran off after the shooting because Jenna told him she was okay, he was scared and the other girls had argued with him about calling the police. After first saying he had left the gun at Auggie's house, Masiel told Moore he had dropped the gun in a field as he ran from the home.
Masiel also claimed he did not know Jenna was dead or how her body ended up in a river bed. When he next went by Auggie's house and asked him about Jenna, Auggie told him she was okay. Masiel claimed no knowledge of who "stashed her," explaining he had learned of the location of her body when he read the newspaper, and said, "Now she's gonna . . . rest in peace," and if she lived, she would have had a scar, and "I'll probably end up doing a long time for this."
After the interview, Moore transported Masiel to the field where he claimed he had dropped the gun. Although six investigators searched the field for about two hours, no weapon was ever found. Four days later, firefighters found Criminal's blue Buick on fire near San Jacinto and East First Streets. In a search of the charred remains of the car they also found some blue wire similar to that found under Jenna's body. Arson investigators concluded that the fire had been intentionally set.
In February 2004, a felony complaint was filed in juvenile court charging Masiel with Jenna's murder. After a preliminary hearing, Masiel was found unfit to proceed in juvenile court and bound over for trial as an adult. Jury trial commenced December 2005 on an amended information charging Masiel with the premeditated murder of Jenna committed with a firearm for the benefit of San Ja. The above evidence as well as the following was presented at trial in the prosecution case.
Frances T., who had also run away with Jenna, Sandra and Angel from the group home, testified that the girls first walked to the home of a former staff member who connected them with Monique B., with whom they stayed two nights. At some point Frances voluntarily returned to the group home, but was told by the others that she better not snitch as to where they were going. Frances said she had been concerned that Jenna was going with Sandra and Angel, whom she (Frances) considered "bully" types."
Monique testified that the runaway girls stayed with her several nights and that on the evening of March 3, 2002, she went with Angel, Sandra and Jenna to a party at Auggie's house. When they arrived, several Hispanic males with shaved heads and baggy clothes, using words like "ese" and "homie," were in the garage smoking and drinking. As Angel began making introductions, Sandra introduced one male to the other girls as "one of my homeboys." When one Hispanic male asked Jenna, "Where are you from," Jenna claimed she was from a gang in Palm Springs. Hearing this, Auggie, became angry and upset, walked toward Jenna while waiving his arms and hands and getting close to her, and told her that he was from San Ja and "This is the one true gang." When Jenna, who appeared frightened, repeated that she was from Palm Springs or a gang in Palm Springs, Angel grabbed her arm and escorted her into Auggie's house away from the garage. After Monique overheard another conversation and sensed that Jenna was perceived as a nuisance by Auggie, Sandra and Angel, she told Jenna they needed to leave right away, but Jenna refused. Feeling uncomfortable, Monique left the party, walked down the street and telephoned a family member to come pick her up. Jenna, Sandra and Angel spent the next four nights at Auggie's house.
Sandra and Angel, who were both granted immunity for their testimony, each testified at trial about their connections with Hispanic gangs and San Ja, about running away from the group home, about staying with Monique and then Auggie, and about the events the day of Jenna's death and the disposal of her body. In general, Angel said that Jenna did not fit in from the very start in the garage and conceded that saying you were from some place other than the territory belonging to a gang would be a form of "disrespect," that San Ja had a problem with Jenna and that Criminal had a problem with Jenna because she did not want to be with him.
Angel was given immunity during a break in her testimony when it became clear she may have helped Masiel dispose of the gun and Jenna's body.
Angel stated that Masiel had stayed overnight at Auggie's with her on March 5 and 6, 2002. After Auggie left for school on the morning of March 7, 2002, Criminal came by the house and gave Masiel a holster containing a revolver, telling him not to "let these girls get it." After Criminal left, Masiel took the gun out and started playing with it. He walked over to Sandra, pointed it at her stomach and head, laughed and told her to "freeze." Sandra told him to put the gun away. Still laughing, Masiel followed the girls into Auggie's bedroom where he pointed the gun at Angel's face and again at Jenna and Sandra, even brushing the back of Sandra's head with the gun. After Masiel refused to put the gun away even though asked again to do so by Angel and Jenna, Angel played along with him for about 15 minutes before yelling at him to "put that shit away" and going into the adjoining bathroom to take a shower.
Angel said that after being in the shower a few minutes, Jenna came in the bathroom and played around with the shower curtain and that Masiel also came in at one point to talk with her (Angel) without the gun. About 10 minutes later, Angel heard a gunshot, hurriedly got dressed and came out of the bathroom to see Jenna and Sandra standing together near Masiel by the bed in Auggie's room. Sandra was crying, Jenna was gasping for air, and Masiel look scared. When Angel asked Masiel what had happened, he said the gun went off and it was an accident. When Jenna fell to the floor on top of Sandra, Angel followed Masiel to the living room, where he gave her the gun and she took it back to Auggie's room. Angel later gave the gun back to Masiel before he left the house.
Angel also testified that she had talked with Sandra and Masiel about whether to call the police and they decided not to do so. After Masiel had left, Angel waited with Sandra in the living room for Auggie to return from school. When Auggie returned, Angel told him Masiel had shot Jenna and showed him her body. After Auggie checked Jenna's pulse and declared her dead, he made a telephone call. Angel then helped Auggie wrap Jenna's body in a blanket and move her to the garage. Sandra and Auggie then cleaned up blood and vomit from Jenna in Auggie's room.
As the parties note, Angel's as well as Sandra's testimony and their interview statements conflicted in numerous ways concerning any efforts to get help for Jenna. On cross-examination, Angel said that she had taken the phone from Masiel when he tried to call the police before leaving Auggie's house.
About an hour later, Criminal and a couple of other San Ja members, one with "S" and "J" tattooed on his face, arrived in the garage in Criminal's blue Buick. Auggie, Criminal and the other men placed Jenna's body in the trunk of the Buick and drove away. Criminal later told Angel that they had taken Jenna's body to the mountains so that animals would eat it.
In her interview, Angel noted that Auggie had also told her that they had taken Jenna's body to the mountains. Angel's pretrial audiotaped interview, which often varied from her trial testimony, was played for the jury.
Sandra, who had been Jenna's roommate for a time at the group home and considered her a good friend, testified consistently with Monique's and Angel's testimony about the initial events after running away from the group home. Contrary to Monique's testimony, however, Sandra did not remember any conflict or hostility between Auggie and Jenna or any of the men who had been at Auggie's home or in his garage. Sandra's testimony was also basically consistent with Angel's regarding the stay at Auggie's home and the events leading up to the shooting. On that morning, after Criminal had brought the gun to Masiel at Auggie's house and Masiel had played with her and the others with the gun, Sandra said that he began cleaning the top portion of the gun with a rag as Angel showered, and she and Jenna sat in Auggie's bedroom looking at photographs Masiel had in his wallet that she had taken from him in jest. Sandra was sitting on the bed with Masiel as she looked at the photos and Jenna was sitting at a nearby desk. At one point, Sandra saw Masiel pull the hammer of the gun back, twirl it around and again clean it with a rag. While she had her head down looking at another photo, Sandra heard the gun go off. When she looked up, Sandra saw Jenna holding her shirt away from her chest and indicating that she could not breathe. Sandra thought Jenna was playing at first, but then when she went to her and moved her jacket, she saw the small hole in her chest and screamed at Masiel who was panicking and in shock. At some point Jenna fell and within minutes was dead.
Sandra then said Angel came out from the bathroom and they argued with Masiel about whether to call the police or an ambulance. Sandra testified that before Masiel ran from Auggie's home, he kissed Angel and told the girls just to wait there until Auggie came home from school, and "please don't rat on me." Sandra waited in the living room for Auggie's return and again during the time he and the other men removed Jenna's body from Auggie's garage. Criminal told her they were "getting rid of the evidence" and that he would kill her if she talked.
A neighbor of Auggie's testified for the prosecution that Masiel had run from Auggie's house across the street from his home on March 7, 2002, and had asked for a ride to the Soboba Indian Reservation. At that time, Masiel, who had a gunpowder burn on the palm of his hand, told the neighbor that he had encountered some people who had shot at him, that he had shot back, but did not know if he had hit anyone because the gun had "messed up," and that he wanted to get away so he would not be hurt. Masiel then handed the neighbor a gun in a velvet pull bag and asked him to hold it until he returned. The neighbor refused to take the gun but allowed Masiel to hide it under a wheelbarrow near the side of the house before he and a friend drove Masiel to the reservation. Later that day, the neighbor told Auggie where Masiel had hidden the gun.
During Investigator Moore's testimony, Masiel's audio and videotaped interviews were played for the jury. In addition to admitting in the interviews that he was a San Ja gang member, was familiar with guns and knew the gun in question was loaded, as noted earlier, Masiel gave several different stories about how Jenna had died. During the course of his various denials and versions of what happened, Masiel claimed he would not have harmed Jenna because she was a girl, but then agreed he was capable of doing something like this because he was a "gangster." Masiel additionally noted that Angel and Sandra were also "gangsters" and could have killed Jenna who was white and not a gangster because they had gotten "tired of her." He also suggested that Auggie may have killed Jenna. Although he eventually conceded he had been holding the gun when it went off, Masiel claimed it was an accident that occurred when he was taking the gun out of its bag or when he was putting it back into the bag and holding the trigger guard.
Besides discussing the interviews and investigation, Moore also answered questions on cross-examination about his 10 years of experience and training with firearms, explaining the difference between a revolver and a semiautomatic weapon and how they are fired. When asked whether based upon his training and experience he had ever heard of a revolver that had its hammer pulled back fire or go off if it were dropped, Moore said he had "never heard of one going off." When he was then asked whether based on his training and experience he was "aware of any situations where a revolver has fired without the trigger being pulled," Moore said, "No."
On redirect, Moore explained that when the trigger on a revolver is pulled, the cylinder rotates and aligns the cartridge, allowing it to strike the firing pin. If the hammer is accidentally released without someone pulling the trigger, or if the hammer is pulled back and the trigger is accidentally caught, the gun will not fire because the cylinder has not rotated and delivered a new bullet. In other words, one has to pull the trigger all the way through in one smooth motion in order for a revolver to fire.
Moore stated that although Masiel adamantly denied having his finger on the trigger during most of the interview, at one point he conceded he might have had his finger on the trigger as he was putting the gun away. Masiel also told Moore that anyone who did have his finger on the trigger would be "stupid."
Hemet Police Detective Takashi Nishida testified in the prosecution case as a criminal street gang expert. Nishida, who had formerly worked with gangs in San Jacinto, testified about the general Hispanic gang culture and philosophy of "Mi Vida Loca," meaning "my crazy life," which signified the object of living for the moment and committing crimes without getting caught. By committing crimes, gang members instilled fear in the community and in members of other gangs to gain respect. Nishida also generally explained the terms and signs that Hispanic gangs use, like "ese," "homey" and "homeboy, "and noted that male Hispanic gang members would often have relationships with females of other gangs as long as the males were in their own territory and the females respected them. A gun used by a gang member was a symbol of power and its use would make a member appear crazy and instill fear in members of the community thereby enhancing the respect of the member and the gang's reputation.
Nishida further testified about the significance of a gang member asking someone "where are you from?" and how a person's response could be considered a form of "disrespect" to the gang member and the entire gang. He noted that retaliation for a showing of "disrespect" could range from an exchange of words, to assault and murder.
In the last seven years, Nishida had met about 100 San Ja members, whose common signs were "S.J.," "First Street," "Calle Primera," and "C.P." He explained that the primary criminal activities of San Ja ranged from petty thefts to murders. Although the parties stipulated that San Ja is a criminal street gang within the meaning of section 186.22, subdivision (f), Nishida specifically testified about two predicate offenses committed by San Ja members involving a robbery in 2002 of a female victim and a 2001 mayhem conviction involving another young female. When given hypothetical situations consistent with the facts of this case, Nishida opined that the crime was committed for the benefit of the San Ja criminal street gang and explained the basis for his opinions.
A forensic pathologist rounded out the prosecution case, testifying that the single bullet that killed Jenna entered her mid-chest at such an angle as to perforate her heart, liver, spleen, and stomach before lodging in her back He opined that Jenna died within two to six minutes.
The Defense Case
James Shaw, a Ph.D. in education, who had worked with teenagers, including gang members, in juvenile hall detention centers in California for numerous years, testified as a gang expert in Masiel's defense. Shaw stated that there was a code of behavior among male Hispanic gang members regarding great respect for women and that if there were a need to discipline a female member or non-member of the gang, the males generally left that discipline to other female gang members. In other words, Shaw believed it was an exception when a male Hispanic gang member would harm any female. He also did not believe that a gang member would invite a female into his home if the gang member had perceived that he had been "disrespected" by that female.
Given a hypothetical situation based on portions of the facts in this case, Shaw opined that a male gang member chasing girls around inside a house with a gun while laughing and pointing the gun at them would not be conduct that benefited a criminal street gang, but instead would be a "fantasy that's played out [with] no direct purpose that the gang leader has identified as being served." Assuming that a shooting within the range of the evidence in this case was accidental or initiated by a gang member without authorization of the head of the gang, Shaw further opined the shooting would not benefit either the gang member or the gang.
The gist of the defense closing argument was that Masiel was merely charged in this case because he was an admitted San Ja gang member and that he was either not guilty because the shooting was an accident, or he was guilty at most of involuntary manslaughter for killing Jenna because he was criminally negligent in his handling of the gun at the time it went off and hit her. Defense counsel argued there was simply no evidence to support a finding that Jenna's death was an intentional killing or that it was a gang killing.
The prosecutor argued that the direct shot to Jenna's chest and heart by Masiel, who was a San Ja gang member admittedly experienced with guns, and the totality of facts in this case, including that he had obtained the gun from another gang member less than a week after a San Ja party where the victim Jenna had perceivably "disrespected" an associate of San Ja, were sufficient to show express malice for first degree murder, that the gun was intentionally used and that the crime was committed for the benefit of San Ja.
After due deliberation, during which the jury requested the reviewing of Masiel's interviews, rereads of a portion of Sandra's testimony from the time the gun arrived at the house until it was fired, and Monique's testimony, as well as a clearer definition of the intent required for first degree murder, the jury returned its verdict finding Masiel guilty of second degree murder and finding true he had personally and intentionally used a firearm within the meaning of section 12022.53, subdivision (d), and had committed the murder for the benefit of a criminal street gang.
On appeal, Masiel contends there was insufficient evidence to support either the jury's verdict or its enhancement findings. As we explain, we conclude substantial evidence supports both the verdict and the findings.
A. Second Degree Murder
Because Masiel was convicted of second degree murder, we must determine, as already noted, "whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (People v. Malfavon (2002) 102 Cal.App.4th 727, 735.) "The elements of second degree murder are: (1) an unlawful killing; (2) accomplished with malice aforethought, whether express or implied. [Citation.]" (Ibid.) Malice is "express when the defendant manifests 'a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.]" (People v. Lasko (2000) 23 Cal.4th 101, 107.) A defendant acts with implied malice "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) Malice is implied " 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life' [citation]." (Lasko, supra, 23 Cal.4th at p. 107.) Because there is rarely direct evidence of a defendant's intent, it usually must be inferred from all the circumstances of the crime and the defendant's actions. (People v. Smith (2005) 37 Cal.4th 733, 741.)
With regard to the second degree murder conviction, Masiel's only assertion is that there was insufficient evidence of implied malice to support such verdict based upon his summary of the evidence in the light most favorable to himself. However, as we have set out at great length above, the jury also had before it abundant evidence in the prosecution case from which it could reasonably infer malice to support its verdict. In addition to the absence of facts showing any provocation by Jenna before she was shot, the prosecution evidence included Monique's testimony about the events at the purported San Ja gang party in Auggie's garage; evidence that Jenna had rejected Criminal's advances; evidence that a San Ja gang member (Criminal) had brought a gun to Auggie's house and handed it to Masiel less than a week after the garage party; Masiel's statements in his interviews with Moore from which a reasonable jury could infer that Masiel was aware of the dangers involved in pointing the gun and playing with it as he cleaned it with a rag, i.e., he knew of the danger of a gun discharging while it was being cleaned with a rag, of having his fingers on the trigger of a loaded firearm, and of pointing the gun at people; Masiel's actions of pointing the loaded gun at Sandra, Angel, and Jenna while laughing and then ignoring the girls' repeated pleas to put the gun away, conduct from which the jury could conclude Masiel had an "extreme indifference to human life" (see People v. Summers (1983) 147 Cal.App.3d 180, 184-185); Moore's testimony that the trigger of the gun had to be pulled all the way through before a revolver would fire; and the physical evidence of a shot squarely in Jenna's chest. This evidence, together with Masiel's failure to seek medical help for Jenna, his flight from the scene, his disposal of the gun, and his false and contradictory statements to Moore, was all evidence from which the jury could infer Masiel's guilt (People v. Kimble (1988) 44 Cal.3d 480, 495-498). The jury could also consider the fact that the fatal shot was fired while Angel was in the shower and Sandra had her head down looking at photographs, evidence from which the trier of fact could infer that Masiel was waiting for an opportune moment to shoot Jenna, fully supports the inference that Masiel either acted with the intention of killing Jenna or that he acted with actual knowledge of the risk of death to her and willfully disregarded that risk.
Masiel's reliance on conflicting evidence in this record to argue otherwise is to no avail. We do not resolve credibility or evidentiary conflicts when the sufficiency of the evidence is challenged on appeal; we merely look for substantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 403.) It is the exclusive province of the trier of fact to determine the credibility of witnesses and "the truth or falsity of the facts upon which a determination depends. [Citation.]" (Ibid.) In other words, we do not reweigh the evidence.
The trial court here properly instructed the jury on murder, involuntary manslaughter, and accident. The jury rejected Masiel's theory that the shooting was an accident or that he was merely negligent in the shooting of Jenna. The jury was not required to accept one of his theories of the case and could have easily rejected them based on the totality of the evidence. In sum, ample evidence supported the jury's finding that Masiel acted with express or implied malice and that the shooting of Jenna was no accident.
B. Section 186.22, subdivision (b)
Although Masiel stipulated that San Ja is a criminal street gang within the meaning of section 186.22, subdivision (f) and that he was a member of San Ja at the time of the murder, he asserts on appeal that there was insufficient evidence to support the jury's true finding on the criminal street gang enhancement because there was no showing Jenna's murder was committed for the benefit of San Ja with the specific intent to promote its gang-related conduct. We conclude substantial evidence also supports the jury's finding under section 186.22, subdivision (b).
To establish a criminal street gang enhancement, the prosecution must prove the underlying crime was "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. . . ." (§ 186.22, subd. (b)(1).) A finding of specific intent for this enhancement requires a subjective desire to benefit the gang in committing the offense. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 5, p. 204.) It is not enough that the crime is based on personal reasons; it must be "gang related." (Gardeley, supra, 14 Cal.4th at p. 622.) The gang enhancement elements may be established through expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.)
By his stipulation, Masiel conceded that San Ja "(1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in [section 186, subdivision (a)]; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period. [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); § 186.22, subd. (f).)
Here, Masiel again relies only on the evidence in support of his position, specifically that of his own gang expert, and attacks the credibility of the prosecution witnesses and the general portion of the prosecution's gang expert's testimony. As noted above, we do not reweigh the evidence. Although the jury could have concluded the shooting was merely an accident or the result of Masiel's negligence unrelated to any gang activity consistent with the testimony of the defense expert, it was not required to do so.
When the evidence is viewed most favorably in support of the enhancement finding, it shows that Auggie, in the company of other San Ja members, had a confrontation with Jenna when they were introduced and that at some point during her stay at Auggie's Jenna rejected the advances of Criminal, another San Ja gang member. Based on Monique's and Angel's testimony and that of the prosecution expert concerning what constitutes "disrespect" in the San Ja gang culture, a reasonable jury could have concluded that Jenna's claiming Palm Springs when introduced, and later rejecting Criminal's advances, showed "disrespect" to Auggie, Criminal and the San Ja gang. A jury could then reasonably infer that such incidents were communicated to Masiel, an admitted San Ja gang member, when he stayed several nights at Auggie's house with Angel and that the gang was still upset with Jenna when Criminal stopped by to give the gun to Masiel, who was experienced with firearms. Although Masiel's gang expert believed that Hispanic male gang members in general would not harm a female who had disrespected the gang, the prosecution expert testified about two predicate crimes committed by male San Ja gang members against female victims which showed otherwise. Based on the totality of the evidence, the jury could have reasonably concluded, consistent with the opinion of the prosecution gang expert, that the shooting of Jenna directly in her heart was gang-related and was committed with the specific intent to enhance or benefit the reputation of the San Ja gang by showing it would not tolerate Jenna's disrespectful conduct which effectively insulted the gang as a whole.
Contrary to Masiel's reliance on In re Frank S. (2006) 141 Cal.App.4th 1192, where the court found that reliance solely on an expert's opinion about "gangs in general" was not sufficient to support a gang enhancement (id. at p. 1199), both gang experts in this case specifically discussed the San Ja gang in particular as well as gangs in general. The jury may reasonably rely on such expert testimony about gang culture and habits to reach a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.) Further, as noted above, there was more than just expert testimony regarding the gang connections in this case. The jury was entitled to reject Masiel's gang expert's opinion based on the evidence that the shooting had nothing to do with the San Ja gang and to accept that of the prosecution's gang expert based on the same evidence that the murder was committed for the benefit of San Ja. Sufficient substantial evidence supports the jury's gang enhancement finding under section 186.22, subdivision (b).
C. Section 12022.53, subdivision (d)
Section 12022.53, subdivision (d) provides in part: "Notwithstanding any other provision of law, any person who, in the commission of a [specified] felony . . . personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in state prison for 25 years to life." Murder is one of the specified felonies to which this section applies. (§ 12022.53, subds. (a)(1) & (d).) By finding the section 12022.53, subdivision (d) enhancement allegation true, the jury necessarily determined that Masiel fired the gun and caused Jenna's death. Masiel contends that this finding must be set aside because there was insufficient evidence of "any intentional shooting or any conduct intended to benefit [Masiel's] gang." We disagree.
As already noted above, there was overwhelming evidence that Masiel was the actual shooter of the gun, via his own testimony and that of Sandra, and sufficient evidence from which the jury could infer that the firing of the gun was intentional. As Masiel concedes in his reply brief, subdivision (d) of section 12022.53 does not require that the shooting be committed for the purpose of a gang; only subdivision (e) of that section, with which Masiel was not charged, has a gang offense requirement.
In sum, substantial evidence also supports the jury's finding under section 12022.53, subdivision (d).
II
CLAIMED INSTRUCTIONAL ERROR
In a somewhat related, alternative contention, Masiel claims that if this court finds there was sufficient evidence to show implied malice to support the second degree murder conviction then the trial court prejudicially erred in failing to sua sponte instruct the jury on misdemeanor involuntary manslaughter for brandishing a firearm. We disagree.
During jury instruction discussions, after the parties agreed on the instructions to be given, Masiel's counsel asked the court to also instruct on the lesser related offense of grossly negligent discharge of a firearm (§ 246.3). The court ruled that based on People v. Birks (1998) 19 Cal.4th 108, it was not inclined to do so. The next day, Masiel's counsel again brought up the subject of instructing on section 246.3, stating that she thought it really was a lesser included offense rather than a lesser related offense. However, because her research showed that under People v. Robertson (2004) 34 Cal.4th 156, 166-169, if Masiel waived the statute of limitations that had run on such offense, the instruction on section 246.3 would trigger the felony-murder rule and merger doctrine, counsel was making a tactical decision to expressly withdraw the request for a lesser included instruction based on section 246.3.
The jury was subsequently instructed on first and second degree murder, on involuntary manslaughter and on Masiel's main defense that the shooting was an accident. In his new trial motion, Masiel essentially asserted there was a lack of evidence to support his second degree murder conviction and that it should be reduced to voluntary manslaughter, alternatively claiming it was error for the court not to have instructed on voluntary manslaughter. The court denied the motion, specifically noting there was no evidence in the record whatsoever of provocation, sudden quarrel, heat of passion or unreasonable but good faith belief in the need to act in self-defense. Now, for the first time on appeal, Masiel claims the court had a sua sponte duty to instruct on involuntary manslaughter occurring in the course of committing the misdemeanor of brandishing a firearm under section 417, subdivision (a)(2).
Although under appropriate circumstances, a homicide committed while a person is brandishing a firearm may be misdemeanor involuntary manslaughter and require sua sponte instructions on that theory (see People v. Lee (1999) 20 Cal.4th 47, 61-62), the evidence in this case did not warrant such additional lesser offense instructions. Even though the facts reveal that Masiel may have been "skylarking" or brandishing the gun before Angel went into the bathroom to take a shower, no evidence suggests that he continued to do so after that time and right before the actual shooting. In none of his interview versions was he doing anything with the gun other than taking it out of its bag, cleaning it with a rag, trying to uncock its hammer, or putting it back in its case. According to Sandra's and Angel's testimony, which are consistent with portions of Masiel's interview statements, both Sandra and Jenna were sitting in Auggie's bedroom looking at photographs from Masiel's wallet at the time Angel went into the bedroom and Masiel started to clean the gun as he sat on the bed. At one point he even went into the bathroom to talk with Angel without the gun. Sandra further testified that although Masiel talked with her about the photos, he did not say anything to Jenna during that time. Because these surrounding circumstances provide no substantial evidence to support the theory that Masiel was merely brandishing a gun at the time he shot Jenna, which would require he was exhibiting it "in a rude, angry, or threatening manner" or displaying it in a fight or quarrel (§ 417, subd. (a)(1)), the trial court had no duty to instruct the jury on that lesser misdemeanor theory of involuntary manslaughter. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Moreover, as the People point out, our Supreme Court in People v. Nieto Benitez (1992) 4 Cal.4th 91, 110, found that the classification of an offense as a misdemeanor such as brandishing a firearm or deadly weapon does not preclude a jury from finding that the resulting death is murder rather than involuntary manslaughter. In such case the court noted that the pertinent inquiry is not whether the brandishing of the gun or weapon in the abstract was a dangerous act, but rather whether the circumstances surrounding the fatal act rendered the defendant's conduct inherently dangerous. (Id. at p. 108.) In Nieto Benitez, as here, the jury had convicted the defendant of second degree murder. (Ibid.) Thus, to the extent Masiel is claiming that his conduct was merely misdemeanor "skylarking" conduct at most that would not support the sufficiency of the evidence for his second degree murder conviction, his argument again fails under the rationale set out in Nieto Benitez.
Because we conclude that the trial court had no sua sponte duty to instruct on the theory of misdemeanor involuntary manslaughter based on the lesser offense of brandishing a firearm, we do not engage in a discussion of the numerous miscellaneous issues Masiel has included to argue prejudicial instructional error.
We do not glean from Masiel's briefing, as the People have, that Masiel is claiming error because the trial court failed to instruct on misdemeanor involuntary manslaughter based on the lesser offense of section 246.3.
DISPOSITION
The sentence is modified to strike the 10-year enhancement imposed under section 186.22, subdivision (b)(1)(C), and to impose the 15-year parole eligibility minimum under section 186.22, subdivision (b)(5) in its place. The trial court is directed to modify the abstract of judgment accordingly and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.