Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. YA058299 James R. Brandlin, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Gregory Van Poster, a member of the Inglewood Family Blood gang, challenges his convictions for two counts of murder and one count of attempted robbery. The jury found several enhancements including a gang enhancement true. The jury also found true the special circumstance that Poster was convicted of more than one murder. We find no error and affirm the judgment of conviction.
PROCEDURAL BACKGROUND
Poster (appellant) was charged and convicted of two counts of first degree murder (Pen. Code, § 187, subd. (a)) and one count of attempted second degree robbery (§§ 211, 664). With respect to the murders, the jury found appellant personally and intentionally discharged a handgun causing great bodily injury and death upon Terrence Williams and Leshon Hill (§ 12022.53, subd. (d)). The jury found the murder of Williams was committed during the course of a robbery or attempted robbery (§ 190.2, subd. (a)(17)). The jury found both murders were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)); both were committed while appellant was an active participant in a criminal street gang; and both were carried out to further the activities of the gang (§ 190.2, subd. (a)(22)). The jury further found true a multiple-murder special circumstance (§ 190.2, subd. (a)(3)). With respect to the attempted second degree robbery, the jury found true a gang enhancement (§ 186.22, subd. (b)(1)(C)) and firearm use enhancements (§ 12022.53, subds. (d) & (e)(1)).
Undesignated statutory citations are to the Penal Code.
Terrence is also spelled as Terrance in the record.
The court sentenced appellant to two consecutive terms of life imprisonment without parole. With respect to one count of murder, the court imposed a consecutive 25-year-to-life sentence for the firearm use enhancement and a 10-year term for the gang enhancement. The court imposed a 37-year-to-life sentence for the robbery, consisting of a 2-year term, a 25-year-to-life term for the firearm use enhancement and a 10-year term for the gang enhancement. Appellant timely appealed.
FACTUAL BACKGROUND
Appellant and Lazaro Castro, appellant’s accomplice in the robbery and murder of Williams, were members of the Inglewood Family Blood gang (Inglewood Family), a criminal street gang. Appellant’s monikers included TB, Tiny Bountry and Country. To appellant, Bountry was the same as Country because a member of a blood gang would change the letter “c” into the letter “b.” The primary activities of Inglewood Family included robberies and murders.
1. Attempted Robbery and Murder of Williams
At approximately 3:00 a.m. on March 28, 2004, someone robbed and killed Williams, a pimp. Williams was with a group of men (Group) in a parking lot outside a laundromat. Most of the men were pimps, who frequently carried large sums of money. Appellant, Castro, and another person referred to only as “D” approached the Group. Appellant, Castro, or D said “y’all pimpin” and “ya’ll got money.” One assailant stood near a Cadillac owned by Lanon M. That assailant attempted to reach into Williams’s pocket. Williams struggled with the assailant who attempted to reach into his pocket, but the assailant had a gun. Williams tried to flee, and the assailant with whom he had struggled fatally shot him.
We previously affirmed the conviction of Castro for the first degree murder and attempted robbery of Williams as well as other unrelated convictions. (People v. Castro (Feb. 25, 2010, B210010) [nonpub. opn.].)
The assailant who reached into Williams’s pocket and later shot Williams matched appellant’s characteristics. The assailant was African-American, five feet eight or nine inches tall and approximately 140 or 150 pounds. His hair was braided. In March 2004, appellant was five foot nine, weighed 150 pounds, and wore his hair in braids. Additionally, appellant’s fingerprints were on Lanon’s Cadillac.
Shavante Delarosa, an accomplice who pled guilty, testified that she drove appellant and Castro to the laundromat parking lot, and D followed in a car behind them. Either appellant or Castro told Delarosa to stop there. Delarosa stopped to allow appellant and Castro out of the car, but she never turned off the engine. Before they exited the car, either appellant or Castro said “we’re gonna get these motherfuckers.” Delarosa saw appellant had a gun. A few minutes after appellant and Castro left Delarosa’s car, Delarosa heard gunshots. Shortly after, appellant and Castro ran back to Delarosa’s car.
Delarosa pled guilty to two counts of voluntary manslaughter in exchange for a 12-year prison sentence and her agreement to testify truthfully. Delarosa also pled guilty to a count of grand theft.
Delarosa drove appellant and Castro to her home. Delarosa initially testified that after they arrived at her home, when both Castro and appellant were present, either appellant or Castro said “somebody had grabbed Country’s [appellant’s] arm.” Either appellant or Castro further explained that as a result of someone grabbing appellant’s arm, they fired shots. Casings found in the parking lot near the laundromat matched the gun Delarosa saw appellant holding, which later was recovered from her house.
Delarosa eventually changed her testimony and denied remembering whether both appellant and Castro were present during the conversation in which one of them admitted to having fired shots as a result of someone grabbing appellant’s arm. During cross-examination, Delarosa denied seeing appellant with a gun and denied knowing why appellant and Castro exited the car.
2. Murder of Hill
On July 6, 2004, someone shot and killed Leshon Hill. Hill’s then-girlfriend, Ebony G., and Anthony B. were present at the shooting, which occurred in territory claimed by Inglewood Family. More specifically, the shooting occurred outside Ebony’s friend Danielle’s house. Prior to shooting Hill, the shooter said “fuck crabs.” The term “crabs” referred derogatorily to a member of the Crips gang, which was a rival gang to Inglewood Family. The shooter pointed the gun at Hill and fired twice.
At trial, both Ebony and Anthony identified appellant as the shooter. Prior to trial, Anthony had identified appellant from a six-pack photo lineup (six-pack) and indicated that he was 75 percent certain of his identification. Ebony also had identified appellant as the shooter multiple times, but her story was not always consistent as described in more detail in the discussion part, post. Ebony testified that the day after the shooting, she overheard appellant tell Danielle, “Don’t mention anything about what happened last night.”
3. Defense Evidence
Appellant admitted that he was a member of Inglewood Family. Appellant testified and denied shooting Hill or Williams. He claimed that he was at a birthday party at his ex-girlfriend’s house the night Hill was shot. Appellant further testified that he saw D shoot at one of the member of the Group.
DISCUSSION
Appellant argues that (1) his counsel had a conflict of interest; (2) trial on the murder of Hill should have been separate from trial on the murder of Williams; (3) the gang enhancement was not supported by substantial evidence; and (4) hearsay evidence was improperly admitted. The Attorney General disputes each contention. We discuss each issue seriatim. As explained below, we find no error.
1. Alleged Conflict of Interest
Appellant argues that his convictions must be reversed because his counsel was a “material witness” and therefore had a conflict of interest. Appellant also argues that the trial court failed to inform appellant of his right to representation free from conflicts. We reject these claims.
A. The Record
Ebony knew appellant as TB. When asked by police shortly after the incident, Ebony denied knowing the identity of the shooter. At trial, Ebony explained that her initial reluctance to identify appellant was because she was afraid of “snitching” or revealing the identity of a gang member who committed a crime. In gang culture, someone who reports on a gang member may be violently attacked or killed. Ebony further testified that notwithstanding her fear, the day after the shooting she told Detective Dorian Burton that TB was the shooter. She subsequently identified appellant in a six-pack and at trial.
Prior to trial, when appellant’s defense counsel interviewed Ebony she denied seeing the shooter. That interview took place after appellant’s aunt found Ebony on the street, working as a prostitute, and offered to help her. Appellant’s aunt bought Ebony dinner and asked Ebony for her assistance. Specifically, appellant’s aunt asked Ebony to allow appellant’s defense counsel to interview her. Ebony consented to the interview with defense counsel. Ebony assumed that appellant’s aunt wanted her to say appellant did not shoot Hill.
In a video-recorded interview, played for the jury, Ebony told defense counsel, she was not able to see the person who shot Hill because it was too dark. She also stated that she was focused on the gun, not on the shooter’s face. Ebony denied knowing the identity of the shooter and denied revealing the shooter’s identity to Detective Burton.
At trial, Ebony testified that she changed her story because appellant’s “aunt made [her] feel real comfortable, and she told [her] she [would] take care of [her].” Appellant’s aunt told Ebony that she needed Ebony’s help. Ebony felt pressured into changing her story because appellant’s aunt had asked her to help appellant. Ebony thought that the only way to help appellant was to say appellant did not commit the crime, and Ebony “drew the conclusion” that appellant’s aunt was requesting she lie.
Ebony further testified that defense counsel told Ebony she would not have to go to court again if she agreed to be interviewed. Ebony testified that counsel “made it seem like... lying would be a lot easier than... telling the truth.” Counsel did not tell Ebony to change her story; appellant’s aunt pressured Ebony to do that. Appellant’s aunt was present during the interview. Neither appellant’s aunt nor defense counsel testified at trial. Appellant’s aunt was excluded during Ebony’s testimony because appellant’s counsel represented to the court that he intended to call her as a witness.
B. Analysis
The right to effective assistance of counsel, guaranteed by both the state and federal Constitutions, includes the correlative right to representation free from conflicts of interest. (People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin); Wood v. Georgia (1981) 450 U.S. 261, 271.) “‘It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.’ [Citation.] ‘As a general proposition, such conflicts “embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or his own interests. [Citation.]”’” (Doolin, supra, at p. 417.)
A criminal defendant asserting a conflict of interest must show that the conflict of interest “adversely affected his counsel’s performance.” (Mickens v. Taylor (2002) 535 U.S. 162, 173-174; see also Doolin, supra, 45 Cal.4th at p. 421 [adopting the standard set forth in Mickens].) Except in a circumstance involving counsel’s multiple concurrent representation, a criminal defendant asserting a conflict of interest must also show prejudice. (Doolin, supra, at pp. 428-430.) Specifically, the defendant must show “‘“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”’” (Id. at p. 430, quoting Mickens, supra, at p. 166.) Appellant demonstrates neither a conflict of interest nor prejudice.
We do not discuss several cases relied on by appellant because our Supreme Court disapproved them. (Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [disapproving among other cases People v. Sanchez (1995) 12 Cal.4th 1, 47; People v. Kirkpatrick (1994) 7 Cal.4th 988 & People v. Mroczo (1983) 35 Cal.3d 86].) Appellant’s argument that the alleged error constituted a structural error is not supportable in light of Doolin’s general requirement that a criminal defendant asserting a conflict of interest demonstrate prejudice from the alleged conflict. (Doolin, supra, at p. 430.)
i. No Conflict of Interest
Appellant states that the alleged conflict of interest occurred because “defense counsel tried to get [Ebony] to [lie] and change her story.” Further, according to appellant, defense counsel improperly acted as both an advocate and a witness.
Appellant’s argument is based on incorrect factual assertions. First, Ebony testified that appellant’s aunt, not counsel, pressured her to change her story. Appellant’s aunt was present at trial and could have been called to testify. Second, counsel did not testify. He acted as an advocate but not as a witness. Authority holding that an attorney who acts as both an advocate and a witness diminishes his effectiveness is inapposite because counsel did not testify as witness. (Cf. Comden v. Superior Court (1978) 20 Cal.3d 906, 912 [interpreting former Rules Prof. Conduct, rule 2-111 holding that an attorney who testifies as a witness diminishes his effectiveness as advocate].) For the same reason, appellant’s assertion that the court had a duty to inquire “[o]nce it became apparent that trial counsel was a potential witness” is based on the incorrect premise that counsel testified as a witness in this case.
Although appellant’s premise that counsel acted as a witness is incorrect, the remaining question is whether counsel should have testified and withdrawn as counsel. Rules of Professional Conduct, rule 5-210 prohibits an attorney from acting as an advocate and witness in a jury trial. It applies to situations in which the attorney “knows or should know that he or she ought to be called as a witness in litigation in which there is a jury.” (Rules Prof. Conduct, rule 5-210, Discussion.) Whether an attorney ought to testify requires evaluation of all pertinent factors, including the significance of the matters to which the attorney might testify, the weight the testimony might have in resolving such matters, and the availability of other witnesses or evidence. (People v. Dunkle (2005) 36 Cal.4th 861, 915, disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
Rules of Professional Conduct, rule 5-210 provides: “A member shall not act as an advocate before a jury which will hear testimony from the member unless: [¶] (A) The testimony relates to an uncontested matter; or [¶] (B) The testimony relates to the nature and value of legal services rendered in the case; or [¶] (C) The member has the informed, written consent of the client. If the member represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the member is employed and shall be consistent with principles of recusal.” The Discussion to rule 5-210 provides: “Rule 5-210 is intended to apply to situations in which the member knows or should know that he or she ought to be called as a witness in litigation in which there is a jury. This rule is not intended to encompass situations in which the member is representing the client in an adversarial proceeding and is testifying before a judge. In non-adversarial proceedings, as where the member testifies on behalf of the client in a hearing before a legislative body, rule 5-210 is not applicable. Rule 5-210 is not intended to apply to circumstances in which a lawyer in an advocate’s firm will be a witness.”
Counsel could not have shed light on whether appellant shot Hill as he was not a percipient witness to the shooting. Nor was counsel a necessary witness to impeach Ebony’s in-court identification of appellant. Instead, counsel had memorialized Ebony’s prior inconsistent statements on videotape, which was shown to the jury. In short, counsel’s testimony that Ebony made prior inconsistent statements would have added nothing to her video-recorded statements.
Defense counsel’s only potentially relevant testimony concerned Ebony’s asserted motivation to change her story. Specifically, Ebony testified that defense counsel had assured her she would not be required to testify if she consented to the video-recording. Appellant assumes that Ebony’s testimony was false, but the record contains no support for his assumption. If such assurances had not been made, appellant’s aunt could have testified as she was present both during the interview and during trial. The appellate record contains no evidence that appellant was denied the right to present impeaching evidence through the testimony of his counsel. (People v. Goldstein (1982) 130 Cal.App.3d 1024, 1031-1032 [holding that trial court erred in refusing to allow defense counsel to testify that material witness made prior inconsistent statements].) Under these circumstances, there is no evidence that defense counsel (or the court) knew or should have known that defense counsel would be needed as a witness.
ii. No Prejudice
Even if he could show counsel labored under a conflict of interest, reversal would not be warranted because appellant demonstrates no prejudice from the conflict of interest. (Doolin, supra, 45 Cal.4th at pp. 428-430.) Appellant claims that he was prejudiced because the jury could reject Ebony’s recorded statements and believe her trial testimony. Appellant claims that counsel could have “persuad[ed]” the jury to reject Ebony’s in-court identification of appellant and prior out-of-court identifications of appellant. There is no support for the claim that counsel’s testimony would have substantially bolstered Ebony’s videotaped statements in light of her multiple identifications of appellant, whom she recognized. Moreover, Ebony’s testimony identifying appellant as the shooter was corroborated by Anthony’s identification of appellant in a six-pack and in court. In short, appellant fails to demonstrate “‘“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”’ [Citations.]” (Id. at p. 430.)
2. Joint Trial of Both Murders
Appellant argues that his convictions must be reversed because he was denied the right to due process when the trial court refused to try the two murder charges separately.
A. The Record
Prior to trial, defense counsel moved to sever trial on the two murders. Defense counsel argued that severance was appropriate because jurors may use evidence of one murder to support an inference that appellant participated in a second murder. Counsel, however, acknowledged that there was no specific evidence that would cause appellant to suffer prejudice if the crimes were tried together. The court found appellant would suffer no prejudice by having a single trial and denied appellant’s motion to sever.
B. Analysis
i. Legal Principles
Joinder of charges is “preferred” because it promotes efficiency. (People v. Hartsch (2010) 49 Cal.4th 472, 493 (Hartsch).) “A defendant, to establish error in a trial court’s ruling declining to sever properly joined charges, must make a ‘“clear showing of prejudice to establish that the trial court abused its discretion....”’ [Citations.] A trial court’s denial of a motion to sever properly joined charged offenses amounts to a prejudicial abuse of discretion only if that ruling ‘“‘“‘falls outside the bounds of reason.’”’”’ [Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).)
To determine whether the trial court abused its discretion in denying appellant’s motion to sever, “[f]irst, we consider the cross-admissibility of the evidence in hypothetical separate trials. [Citation.] If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges. [Citation.] Moreover, even if the evidence underlying these charges would not be cross-admissible in hypothetical separate trials, that determination would not itself establish prejudice or an abuse of discretion by the trial court in declining to sever properly joined charges. [Citation.]” (Soper, supra, 45 Cal.4th at pp. 774-775, italics omitted.) If a reviewing court determines the evidence underlying properly joined charges would not be cross-admissible, it then considers “‘whether the benefits of joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ [Citations.] In making that assessment, [the reviewing court considers] three additional factors, any of which-combined with [the] earlier determination of absence of cross-admissibility-might establish an abuse of the trial court’s discretion: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case.” (Id. at p. 775, italics omitted.) The reviewing court then balances the potential for prejudice to the defendant from a trial of properly joined charges against the countervailing benefits to the state, bearing in mind that the state’s interest in joinder gives a trial court broader discretion to deny a motion to sever properly joined charges than it has to admit evidence of uncharged offenses in a separate trial. (Id. at p. 775 & fn. 7.)
“[T]he complete absence of cross-admissibility does not by itself, demonstrate prejudice from the failure to order a requested severance.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221.) It is not necessary that the evidence be cross-admissible as to all charges. Section 954.1 provides: “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.”
ii. Application
At the time the trial court made its ruling to deny appellant’s motion for severance, the decision was well within the court’s discretion. (Hartsch, supra, 49 Cal.4th at p. 493 [reviewing court considers the record before the trial court when it made its ruling].) Assuming the correctness of appellant’s argument that the evidence of the two murders was not cross-admissible, the crimes were of the same class and were properly joined. (§ 954.1) More significantly, no other relevant factor supported severance. Neither murder involved facts particularly egregious or likely to inflame the jury against appellant. Instead, the crimes were similar. In each, appellant walked up to the victim and shot the victim at close range. The defense in each murder was mistaken identity, and the evidence that appellant was the shooter in each case was strong. Stated otherwise, neither case when compared to the other was likely to bolster the other. As defense counsel acknowledged in the trial court, no specific evidence in one case prejudiced appellant in the other. Finally, the prosecutor did not seek the death penalty as a result of the joinder of the two murders. Appellant fails to show the trial court abused its discretion in trying the two murders together.
Even if, as here, a trial court’s ruling on a motion to sever is correct at the time it was made, the reviewing court must consider whether joinder “resulted in gross unfairness depriving the defendant of due process of law.” (Soper, supra, 45 Cal.4th at p. 783.) In Soper, the high court found no due process violation when the evidence of each crime was “straightforward and distinct, ” ample evidence supported the convictions, the “facts pertaining to each crime, compared to the other, were not likely to unduly inflame the jury[, ]” and the evidence of one crime was not significantly weaker than the other. (Id. at p. 784.)
This case is indistinguishable from Soper. The evidence of each crime was straightforward and distinct. On the Hill murder, it consisted primarily of eyewitness testimony. On the Williams murder, it consisted of eyewitness testimony as well as accomplice testimony. Ample evidence supported the conviction of both crimes. As explained above, neither murder was substantially more inflammatory and neither was significantly weaker than the other. In short, joinder of the two murder charges did not deny appellant his due process rights.
3. Sufficiency of the Evidence: Gang Enhancement
Appellant argues that there was insufficient evidence to support the finding that the crimes were committed for the benefit of a criminal street gang. We disagree.
A. The Record
Appellant admitted to being a member of Inglewood Family and admitted that he had numerous tattoos identifying him as a member of that gang. Castro also was a member of Inglewood Family. Members of Inglewood Family committed various crimes including robberies, shootings, and murders. They also wrote graffiti, sold and transported narcotics, and shot police. Inglewood Family members intimidated residents in the neighborhoods they claim as their territory. Crips were rivals to Inglewood Family.
When given a hypothetical with facts similar to the robbery and shooting of Williams, Officer Kerry Tripp opined that the crimes were committed in association with a gang because there were multiple members of a gang involved. He also opined that the robbery was committed for the benefit of a gang because robbery is a method to obtain money for the gang. In addition, individual gang members obtain status in their gang by committing robberies and shootings. According to Tripp, gang members discuss their criminal plans and identify targets. Tripp explained that a pimp was a good target because he was unlikely to report the gang member to the police.
Officer Tripp also opined that a crime similar to the killing of Hill was committed for the benefit of a gang. Killing a rival gang member benefits the gang because gangs are “at war” with their rivals. Gang members often make an announcement related to their gang membership prior to committing a crime. For example, yelling “fuck crabs” is a common statement by a member of a blood gang because it is directed toward the rival crip gang.
B. Analysis
Section 186.22, subdivision (b)(1) provides an enhanced sentence for any person who is convicted of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” The gang enhancement requires proof of two elements: (1) that the felony was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (2) that the defendant harbored the requisite intent. Expert testimony may be used to prove the elements of the gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) “‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The same standard applies to assess the sufficiency of a gang enhancement. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) As we explain, substantial evidence supported both elements of the gang enhancement.
i. First Element
Ample evidence shows the crimes were committed for the benefit of or in association with appellant’s gang. Appellant’s exclamation “fuck crabs, ” prior to shooting Hill supported a reasonable inference that appellant intended to benefit his gang by killing a perceived member of a rival gang. (See People v. Margarejo (2008) 162 Cal.App.4th 102, 109 [criminal defendant’s use of gang signs while committing crime supported finding that defendant intended to instill fear in community members and crime was committed for benefit of gang].) With respect to the Williams robbery and shooting, appellant committed the crime in association with Castro, another Inglewood Family gang member. (People v. Williams (2009) 170 Cal.App.4th 587, 625 [jury could infer crimes were gang related based on fact that defendant committed crimes in association with fellow gang members].) Additionally, the jury could have credited Tripp’s testimony (1) that pimps were a common target of gang members because they were less likely to call the police than persons not involved in criminal conduct and (2) that committing robbery benefits the gang because it brings money into the gang.
ii. Second Element
Appellant argues that the section 186.22 gang enhancements for both murders and the robbery were not supported by substantial evidence because there was no evidence he harbored the specific intent to assist gang members in the commission of crimes other than the crimes that were the subject of the prosecution.
This court has uniformly held that section 186.22, subdivision (b)(1) “requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members, ’ rather than other criminal conduct.” (People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354 (Vazquez); People v. Hill (2006) 142 Cal.App.4th 770, 774.) As explained in Vazquez, there are no statutory requirements that the criminal conduct committed be distinct from the charged offense. (Vazquez, supra, at p. 354.)
The Ninth Circuit has interpreted section 186.22 to require evidence that a defendant intended to promote, further or assist in other conduct by gang members. (Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1078; Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.) The Ninth Circuit has recognized its disagreement with the California appellate courts and certified questions for the California Supreme Court. (Emery v. Clark (9th Cir. 2010) 604 F.3d 1102.) The same issue is pending in the Supreme Court in People v. Albillar (2008) 162 Cal.App.4th 935, review granted August 13, 2008, S163905.
There was substantial evidence appellant intended to promote, further or assist in criminal conduct by gang members. Shootings were a primary activity of the Inglewood Family. In the Hill shooting, a reasonable juror could conclude that appellant promoted gang activity by shooting after yelling “fuck crabs.” With respect to the Williams murder, appellant or Castro announced that they would “get” the pimps in the parking lot and proceeded to attempt to rob one. When the intended victim resisted, appellant shot him. This evidence creates a reasonable inference that appellant had the specific intent to further the robbery and killing of Williams. (Vazquez, supra, 178 Cal.App.4th at pp. 353-354; People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Because we find the gang enhancements were supported by substantial evidence, we need not consider appellant’s derivative claims that if the gang enhancements were reversed other enhancements would no longer apply.
Appellant’s reliance on People v. Albarran (2007) 149 Cal.App.4th 214 is misplaced. The Albarran court considered whether a new trial on the substantive charge was warranted when the trial court dismissed the gang enhancement after gang evidence had been admitted. The sufficiency of the evidence was not at issue, and Albarran does not support appellant’s claim that the evidence in this case was insufficient.
4. Alleged Improper Admission of Hearsay Evidence
Appellant’s final contention is that the court erred in admitting evidence that he or Castro said that someone grabbed Country’s arm and thereby triggered the shootings. We find no error and conclude that even if we assume the evidence was improperly admitted, the error did not prejudice appellant.
As previously summarized, Delarosa initially testified that both appellant and Castro were present when one of them said that someone grabbed Country’s arm and, as a result, they fired shots. Later, she testified that she could not remember if both appellant and Castro were present. Based on her later testimony, appellant argues that the court improperly admitted evidence of the adoptive admission because there was no foundation for it. The crux of appellant’s argument is that the prosecution did not prove he was present when those statements were uttered. Appellant does not dispute that if he had been present, the evidence would have been properly admitted as an adoptive admission. We conclude that even though there was conflicting evidence, an adequate foundation existed to admit the statement under the adoptive admission exception to the hearsay rule.
The prosecution’s theory was that even if appellant himself did not make the statement it was admissible as an adoptive admission because appellant failed to deny or explain the statement made by Castro.
Evidence Code section 1221 exempts adoptive admissions from exclusion under the hearsay rule. It provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” When the admissibility of evidence depends on a foundational fact, “[t]he existence of conflicting evidence d[oes] not inexorably prevent a finding that an adequate foundation existed.” (People v. Hinton (2006) 37 Cal.4th 839, 891 [record supported trial court’s finding of sufficient evidence of preliminary fact even though conflicting evidence existed].)
The record supported the trial court’s finding that an adequate foundation had been established. Specifically, Delarosa initially testified that both Castro and appellant were present when one of them uttered the statement. The trial court properly instructed the jury that in order to find appellant admitted the statement, it must find that “the statement was made to the defendant or made in his presence” and that the “defendant heard and understood the statement....” We presume that the jury followed this instruction. (People v. Coffman (2004) 34 Cal.4th 1, 44.) Appellant has not shown the court erred in admitting the evidence even though there was conflicting evidence with respect to the foundation.
Because we find sufficient foundation to admit the evidence, we need not consider whether the statement was admissible as a statement in furtherance of a conspiracy. Nor are we required to consider appellant’s argument that without the evidence there was insufficient evidence to support the finding that (1) he personally discharged a firearm causing death and that (2) he was the actual killer of Williams.
Finally, even if the admission of the statement was error, appellant does not demonstrate prejudice. In addition to the statement that someone grabbed appellant’s arm and they fired shots, there was ample other evidence of appellant’s role in the robbery and murder. Appellant admitted to being present, and Delarosa placed him at the scene. Delarosa testified that she saw him with the same gun that was recovered at her house. Casings from that gun were found at the scene. Appellant’s description matched that of the shooter, and his fingerprints were found on a Cadillac near where the shooter stood. Prior to exiting the car, either appellant or Castro said “we’re gonna get these motherfuckers” and the two proceeded to the Group together. There is no reasonable probability that the result would have been different if the evidence had been excluded. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526 [“‘When the court abuses its discretion in admitting hearsay statements, we will affirm the judgment unless it is reasonably probable a different result would have occurred had the statements been excluded’”].) Therefore, even if the evidence were erroneously admitted, reversal would not be required.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J. O’CONNELL, J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.