People v. Sirypangno

Full title: THE PEOPLE, Plaintiff and Respondent, v. KONRSAVANH DONALD SIRYPANGNO, et…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Feb 15, 2012

D055015 (Cal. Ct. App. Feb. 15, 2012)

Opinion

D055015

02-15-2012

THE PEOPLE, Plaintiff and Respondent, v. KONRSAVANH DONALD SIRYPANGNO, et al., Defendants and Appellants.

HUFFMAN

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD191585)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill and Bernard K. Revak, Judges. Affirmed as modified.

A jury convicted Konrsavanh Donald Sirypangno and David Phommachanh of first degree murder (Pen. Code,¹ § 187, subd. (a)), attempted murder (§§ 187, subd. (a), 664) and assault with a semiautomatic firearm (§ 245, subd. (b)), and found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In connection with the murder and attempted murder counts, the jury found Phommachanh personally and intentionally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)), and Sirypangno was a principal and a principal personally and intentionally discharged a firearm (§ 12022.53, subd. (e)(1)). In connection with the assault with a semiautomatic firearm count, the jury found Phommachanh personally used a firearm and personally inflicted great bodily injury. (§§ 12022.5, subd. (a), 12022.7, subd. (a).)

1 Statutory references are to the Penal Code unless otherwise specified.

The trial court sentenced Sirypangno and Phommachanh each to prison terms of 75 years to life and seven years.

In his appeal, Sirypangno contends the trial court erred by giving the standard instruction on the natural and probable consequences doctrine of aiding and abetting liability and asserts two other aiding and abetting instructional errors as well. Sirypangno also contends because there was not sufficient evidence that the crimes were committed for the benefit of a street gang, the jury's findings on the gang allegations and the section 12022.53, subdivision (e) allegations must be set aside. Additionally, Sirypangno asserts the cumulative effect of the errors denied him a fair trial.

In his appeal, Phommachanh contends he was denied his constitutional rights to an impartial jury drawn from a fair cross-section of the community, the admission of his gang moniker, "Felon," and rap lyrics he composed deprived him of a fair trial, and the trial court erred by not instructing the jury that in determining the degree of murder, it could consider whether there was provocation (CALCRIM No. 522). Phommachanh also claims the gang enhancement on the murder count must be stricken, and the abstract of judgment does not conform to the court's order at sentencing.²

2 Sirypangno and Phommachanh join in the arguments of each other to the extent that they would benefit thereby. (Cal. Rules of Court, rule 8.200(a)(5).)

FACTS

In 2005, Sirypangno and Phommachanh were documented members of the Oriental Killer Boys (OKB) criminal street gang. Sirypangno's gang moniker was "Reckless"; Phommachanh's moniker was "Felon." Other OKB members included Devin Giraud ("Striker") and Steven Joyce ("Turtle").

On the evening of June 11, 2005, Phommachanh drove his out-of-town cousin, Danny Boualouang, and Judy Rattana to a friend's residence and later to a birthday party for a Cambodian girl. Rattana was Phommachanh's girlfriend and the mother of their daughter.³ Sirypangno, and Joyce and his girlfriend, Melissa Rasasack, drove to these locations in a separate vehicle. OKB member Giraud also was at the Cambodian girl's party. During that party, Rattana learned some of her girlfriends were going to a party in Mira Mesa and decided to accompany them. Rattana left the Cambodian girl's party with her girlfriends. The plan was for Phommachanh to first pick up their daughter at her grandparent's house, take the girl home, then pick up Rattana at the Mira Mesa party and bring her home.

3 Rattana was charged as a defendant in this case, but entered a negotiated guilty plea to voluntary manslaughter and an admission she committed the crime for the benefit of a criminal street gang. As part of the plea agreement, Rattana agreed to testify truthfully at the trial.
Giraud and Joyce also were charged as defendants in this case. Before trial, Joyce entered a negotiated guilty plea to voluntary manslaughter and an admission he committed the crime for the benefit of a criminal street gang. Giraud entered a negotiated guilty plea to being an accessory after the fact and admitted he committed the crime for the benefit of a criminal street gang.

Before Phommachanh went to the Mira Mesa party, he received a call on his cell phone. Boualouang heard Phommachanh tell someone to bring a "strap," which is street jargon for a gun, because there might be "some problems" at the party.

At about 11 p.m., Phommachanh, Boualouang and Giraud went to the Mira Mesa party, which was in the backyard of a house at the corner of Lott Point and Santa Arminta Streets. Sirypangno, Joyce and Rasasack went in a separate vehicle.

Access to the party was through a side gate to the backyard; admission cost $2.00. At first, Phommachanh and the others were not allowed to enter because there were too many people at the party. Phommachanh told the two young men who were manning the gate there would be trouble if he and his friends were not allowed inside. Rattana walked up to the young men at the gate and told them to let Phommachanh and the others in to avoid problems. Phommachanh, Boualouang ,Giraud and Rasasack walked into the backyard without paying. Sirypangno and Joyce jumped over the backyard fence.

There were a number of altercations at the party that evening, including at least one before Phommachanh, Sirypangno and the others arrived. While invited guest Hasib Farhan was standing near a young woman, he accidentally blew cigarette smoke in her face and almost burned her hair. An argument ensued, and Julie Nguyen, who was with the young woman, threatened to have Farhan jumped by OKB members if he did not apologize. Nguyen, who is known to her friends as "Mai," is an affiliate of OKB. After Phommachanh and the others entered the backyard, they were greeted by Mai and the young woman.

At one point, some of the invited guests complained that they were uncomfortable because Phommachanh and his group were "mad-dogging" or staring at people at the party.⁴ Farhan, who had played football in high school, and some of his friends who also played football approached Phommachanh and Sirypangno, who were standing next to each other, and told them to calm down or they would have to leave. Sirypangno pulled up his shirt, removed a black semiautomatic gun from his waistband, racked a round and pointed the gun at Farhan. Although Farhan did not hear Sirypangno say "OKB" or "this is OKB" and did not see Phommachanh flash gang signs, others who were present testified they did. Once the gun was displayed, Farhan's friends pushed him back into the house. Sirypangno and Phommachanh jumped over the back fence and onto a sidewalk. In the process, they knocked out one of the wood planks of the fence.

4 Neither the people hosting the party nor the invited guests were gang members.

One of the party hosts, Natasha Richardson, who had gone outside with Farhan, approached Mai, tapped her on the shoulder and asked Mai to have Sirypangno put the gun away. Mai told Richardson not to touch her, yelled "OKB" and punched Richardson in the face.

After Sirypangno and Phommachanh jumped the fence, Sirypangno stayed on the sidewalk behind the backyard of the party house, but Phommachanh did not. Sirypangno became angry when he overheard portions of a conversation between Tylor Thompson⁵and Jeremy Waller, who were standing near the fence. Waller and Thompson were talking about a group of girls who had earlier been fighting and wondered where "the bitches" had gone. From the other side of the fence, Sirypangno said: "Who you guys calling a bitch?" According to Waller's testimony, he and Thompson replied they were not talking to Sirypangno, they did not know him and they did not call him a bitch. Sirypangno threw a piece of wood over the fence and at Waller and Thompson. When Waller and Thompson looked over the fence, Sirypangno pulled up his shirt and displayed the gun in his waistband.

5 Thompson is the victim in the murder count.

Kelly Anderson,⁶ who also was a friend of Thompson, gave a slightly different version of the over-the-fence exchange between Thompson and Sirypangno. Anderson testified that Sirypangno said: "What the fuck did you say?" Thompson replied: "I don't know what you're talking about, I don't even know you, you're tripping" and "I don't know who the fuck you are." Sirypangno said: "You fucking said something, what the fuck did you say, don't be a pussy." Thompson responded: "Fuck you, suck my dick." Anderson testified Sirypangno then said he would catch Thompson outside and threw a piece of wood at them.⁷ After the exchange, Anderson, Thompson, his girlfriend, Krystal Abiva, and Brandon Guaderrama, who went to the party with Thompson, remained in the backyard for between 15 and 20 minutes before leaving to allow tempers to calm down.

6 Anderson is the victim in the attempted murder count.

7 Elexander Noble, a long-time friend of Phommachanh, provided another version of the Sirypangno-Thompson exchange. Noble, who is not a gang member, testified that Thompson said something to the effect that "these guys are not real gangsters[;] they're just bitches." Upon hearing this, Sirypangno responded by saying: "I'm a real fucking gangster[;] you'll see when you get out."

Meanwhile, Phommachanh, Rattana and Boualouang decided to leave the party and go home. As the trio started walking to the car, Giraud called out Phommachanh's name and asked him to return. Phommachanh and Boualouang walked back to see what Giraud wanted while Rattana continued walking to the car. A visibly upset Sirypangno then approached Phommachanh and told him about his exchange with Thompson. According to Boualouang, Phommachanh told Sirypangno not to worry about it and tried to calm him down. While Sirypangno and Phommachanh were talking, Rattana drove up to the house. As Phommachanh stepped into the front passenger seat, Sirypangno handed him the gun. When Rattana asked Phommachanh about the gun, he replied he was just holding it. Phommachanh then put the gun inside the glove compartment. Rattana drove away and headed home.

Within five minutes, Phommachanh received a cell phone call to come back and pick up Sirypangno. When they returned, Phommachanh put a bandana over his face, removed the gun from the glove compartment and stepped out of the car. Phommachanh waved the gun and shouted "who wants it"; he then joined Sirypangno, Joyce and Giraud, who were lined up in front of the house waiting for Thompson to emerge from the backyard. When Thompson came out, Sirypangno approached him, said "you the fool that fucking told me to suck your dick," and punched or tried to punch him the face. Guaderrama then tackled Sirypangno and Joyce joined the fight as well. Anderson tried to get Thompson to stop fighting and pull him away.

Phommachanh pointed the gun at Thompson, who put his hands up and said "no." When the gun did not fire, Phommachanh cleared an unfired round from the chamber by racking back the slide of the gun. He then fired five shots, striking both Thompson and Anderson. Thompson and Anderson struggled to get up and run away, but collapsed.

Phommachanh, Sirypangno, Joyce and Boualouang got into the car and Rattana drove away. The group discovered Joyce had been shot in the foot. Phommachanh gave the gun to Sirypangno, who told Rattana to drive to Giraud's house because they needed to hide "the strap." Rattana dropped off Phommachanh and Sirypangno at Giraud's house, where the gun was hidden in a rice bin.⁸ Rattana then drove home with Joyce and Boualouang. Phommachanh phoned Rattana and told her to get rid of Boualouang's clothes, which had blood on it from Joyce's wound. When Phommachanh returned home, he tried to clean the blood from his car. He also told Rattana and Boualouang to say he was at home that night if anyone asked. Phommachanh also phoned Noble (see fn. 7, ante), who had witnessed the shooting, and told him not to tell anyone what had happened.

8 During a search of Giraud's residence, police located the firearm, which was a .45 caliber semiautomatic handgun. Ballistic tests showed the gun fired the shell casings that were found at the crime scene. Testing of the DNA collected from the gun was a mixture of three possible DNA contributors: Phommachanh, Sirypangno and a third person.

Thompson bled to death. He had two gunshot wounds to the left side of his body that could have been caused by the same bullet. One wound was to the left arm; the other wound was to his left flank. The bullet that entered the left flank severed the iliac artery and vein.

Anderson had gunshot wounds to her abdomen and right hip. Anderson had surgery to remove her appendix, which had burst, and half of her colon. She was in the hospital for five days.

Detective Daniel Hatfield of the San Diego Police Department's gang unit testified that at the time of the shooting, OKB was an Asian criminal street gang with 106 documented gang members. Hatfield said OKB engaged in a pattern of criminal gang activity and the gang's primary activities were serious assaults, burglaries, automobile thefts and murders.

Hatfield also discussed gangs in general and explained that reputation and respect are of upmost importance to gangs because they enable a gang to instill fear among rival gangs and people who live in the community. People who live in the community often are reluctant to testify against gang members because they fear retaliation from the gang. Gang members gain respect by committing violent crimes and by backing up their fellow gang members in fights.

Hatfield also testified that disrespect to a gang member is considered disrespect to the entire gang. Such disrespect can take many forms, including a person looking at a gang member in the "wrong way." Gang fights easily escalate into violence. When gang members are involved in crimes, including murder, the gang's reputation for violence increases and the community's fear of and intimidation by the gang increases.

DISCUSSION

I

SIRYPANGNO'S APPEAL

Sirypangno was convicted of first degree murder, attempted murder and assault with a semiautomatic firearm as an aider and abettor. Sirypangno raises three instructional assignments of error dealing with his liability as an aider and abettor. Accordingly, we first review general principles of aiding and abetting liability.

"Aider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him carry out the offense." (People v. Miranda (2011) 192 Cal.App.4th 398, 407.) In considering whether one is an aider and abettor, relevant factors include presence at the scene of the crime, companionship, and conduct before and after the offense. (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)

Aider and abettor liability can also be found under the natural and probable consequences doctrine, which provides "an aider and abettor is guilty of not only the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the actual perpetrator. The defendant's knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. [Citation.] The elements of aider and abettor liability under this theory are: the defendant acted with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) the defendant by act or advice aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (People v. Miranda, supra, 192 Cal.App.4th at pp. 407-408.)

The jury was instructed on general aiding and abetting theory and on the natural and probable consequences doctrine with the following standard jury instructions: CALCRIM Nos. 400, 401 and 403. CALCRIM No. 400 presents the general principles of aiding and abetting liability. CALCRIM No. 401 sets forth the elements of aiding and abetting when the intended crime is the charged crime. CALCRIM No. 403 is given when the prosecution is asserting aiding and abetting liability under the natural and probable consequences doctrine and only the nontarget offense is charged.

A. Applicability of Instruction on Natural and Probable Consequence Doctrine

Sirypangno contends the trial court erroneously instructed the jury on the natural probable consequence theory of aiding and abetting (CALCRIM No. 403) because there was not substantial evidence that Phommachanh, as perpetrator of the murder and the other charged crimes, participated in the target offense of gang-motivated battery.⁹ The contention is without merit.

9 CALCRIM No. 403 as given by the trial court read in pertinent part: "To prove that defendant Konesavahn Donald Sirypangno is guilty of Counts 1, 2 or 3 by a Natural and Probable Consequence Theory, the People must prove that: [¶] 1. Defendant Konesavanh Donald Sirypangno is guilty of Gang Motivated Battery; [¶] 2. During the commission of the Gang Motivated Battery, a co-participant in that crime committed the crimes of Murder, Attempted Murder, and Assault with a Semi-Automatic Firearm; and [¶] 3. Under all of the circumstances, a reasonable person in defendant Sirypangno's position would have known that the commission of any or all of the crimes charged was a natural and probable consequence of the commission of the Gang Motivated Battery. [¶] A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the crimes charged were committed for a reason independent of the common plan to commit the Gang Motivated Battery, then the commission of the crimes charged were not a natural and probable consequence of that crime." (Italics added.)

It is clear under the evidence that Phommachanh was the perpetrator of the murder of Thompson, the attempted murder of Anderson and the assault with a semiautomatic firearm. The question posed by Sirypangno is whether, under CALCRIM No. 403 -- particularly, the language italicized in footnote 9, ante -- Phommachanh participated in the gang motivated battery of Thompson, which was the target offense. If there was not substantial evidence of such participation, Sirypangno claims the instruction was not applicable and should not have been given. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.)

The problem with Sirypangno's assignment of error is that there is substantial evidence that Phommachanh participated in the gang motivated battery of Thompson. In determining the propriety of an instruction on a particular theory of guilt, the test is whether there is substantial evidence to support the theory. (Campbell, supra, 25 Cal.App.4th at p. 408.) In such an endeavor, we must resolve all conflicts in the evidence and reasonable inferences in favor of the judgment. (Id. at p. 409.)

We conclude there was substantial evidence that Phommachanh was an aider and abettor of the gang motivated battery. Sirypangno and Phommachanh were fellow members of the OKB gang who attended a party together. During his heated over-the-fence exchange with Thompson, Sirypangno believed he and his gang were grossly insulted and he did not want to leave those insults unanswered. Sirypangno told Phommachanh about the insults and gave him the .45 caliber semiautomatic handgun. A jury could have reasonably inferred that Phommachanh intended to return to the party with the gun and provide backup to Sirypangno when he took on Thompson. That is in fact what occurred. Further, Detective Hatfield, the prosecution's gang expert, testified that acts of disrespect to a gang or gang member are not left unanswered. Verbal insults can constitute an act of disrespect, and such verbal exchanges often escalate into violent confrontations. Fellow gang members typically provide backup to a disrespected gang member.

The trial court did not err by giving CALCRIM No. 403. Accepting Sirypangno's premise that he was the perpetrator of the target offense of gang-motivated battery, there was substantial evidence that Phommachanh was an aider and abettor who participated in the battery by backing up Sirypangno with fire power.

B. Failure to Specify Degree of Murder in Natural and

Probable Consequence Instruction

Sirypangno contends his first degree murder conviction must be reversed because the jury instruction on the natural probable consequences doctrine of aiding and abetting referred to "murder" and not to first degree murder.¹⁰ In other words, the instruction referred to murder without noting that, in order to convict Sirypangno of first degree murder under the natural and probable consequences doctrine, the jury would have to find that first degree murder was a natural and probable consequence of the target offense of gang-motivated battery.

10 See footnote number 9, ante. In the paragraph numbered 2, the instruction reads: "During the commission of the Gang Motivated Battery, a co-participant in that crime committed the crimes of Murder, Attempted Murder, and Assault with a Semi-Automatic Firearm."

There is a split of authority on the issue in the Courts of Appeal, and the question is currently before the California Supreme Court. (See People v. Favor (2010) 190 Cal.App.4th 770, review granted March 16, 2011, S189317; People v. Hart (2009) 176 Cal.App.4th 662 (Hart) [reference to degree required]; People v. Cummins (2005) 127 Cal.App.4th 667[reference not required].)

Assuming, without deciding, that the instruction properly should have referenced first degree murder, we find such an error would be harmless. It is not reasonably likely that had the instruction been given with the reference to degree of murder a more favorable result for Sirypangno would have ensued. (People v. Prince (2007) 40 Cal.4th 1179, 1267; People v. Breverman (1998) 19 Cal.4th 142, 165 [failure to instruct on lesser included offense in a noncapital case is subject to the People v. Watson (1956) 46 Cal.2d 818, 836 standard of harmless error.

Sirypangno handed the .45 caliber semiautomatic handgun to Phommachanh, and there was at least a tacit agreement that Phommachanh would return to the party and provide backup support. Sirypangno then positioned himself to encounter Thompson as he emerged from the backyard. When Thompson did so, Sirypangno identified him as the target by saying "you the fool who told me to suck your dick." Under these circumstances, the evidence supports a finding that a reasonable person in Sirypangno's position would have known that a premeditated murder was likely to occur from the gang-motivated battery of Thompson that he initiated. When a gang member arms a fellow gang member with a semiautomatic handgun in anticipation of a fight to avenge disrespect to the gang, a reasonable inference is the gang members planned to use the gun in the fight. Regardless of whether the degree of murder was referenced in the instruction, we conclude the jury was likely to find the murder was deliberate and premeditated -- that is, first degree.

C. "Equally Guilty" Language in Instruction

Sirypangno contends the trial court erred when it instructed the jury, pursuant to CALCRIM No. 400, that a perpetrator of a crime and the aider and abettor of the crime are "equally guilty." Sirypangno complains the language improperly tied his mental state to that of Phommachanh where "the evidence does not clearly show any active aiding and abetting by appellant."

CALCRIM No. 400 is the standard introductory instruction to the series of instructions on aiding and abetting. At the time of the trial, the instruction read: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." In other words, both the perpetrator and the aider and abettor are principals. (§ 31.)

Generally, a person who is found to have aided another person to commit a crime is "equally guilty" of that crime. (§ 31; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, pp. 122-123.) However, in certain cases, an aider and abettor may be found guilty of a greater or lesser crime than the perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1114-1122 [aider and abettor might be found guilty of first degree murder even if shooter is found guilty of manslaughter on unreasonable self-defense theory]; People v. Woods (1992) 8 Cal.App.4th 1570, 1577-1578 [aider and abettor might be guilty of lesser crime than perpetrator where ultimate crime was not reasonably foreseeable consequence of act aided, but a lesser crime committed by perpetrator during the ultimate crime was a reasonably foreseeable consequence of the act aided].) In People v. Nero (2010) 181 Cal.App.4th 504, 513 (Nero), the Court of Appeal concluded that the Supreme Court in McCoy also suggested that an aider and abettor may be guilty of lesser homicide-related offenses than those committed by the actual perpetrator as well. The Court of Appeal noted that the "equally guilty" sentence in CALCRIM No. 400 "can be misleading" and suggested modification. (Id. at p. 518.)¹¹

11 Nero, supra, 181 Cal.App.4th 504, is readily distinguishable from this case. In Nero, at page 507, the jury inquired during deliberations whether an aider and abettor must be found guilty of the same level of homicide (e.g., second degree murder) as the perpetrator, or whether an aider and abettor may be found guilty of a lower level. Without consulting counsel, the trial court reinstructed the jury pursuant to former CALJIC No. 3.00 which, like former CALCRIM No. 400, also contained the "equally guilty" language. The appellate court concluded: "[W]here, as here, the jury asks the specific question whether an aider and abettor may be guilty of a lesser offense, the proper answer is 'yes,' she can be. The trial court, however, by twice rereading [former] CALJIC No. 3.00 in response to the jury's question, misinstructed the jury." (Id. at p. 518.) Here, the jury did not ask whether Sirypangno may be guilty of a lesser offense than Phommachanh, and there was no rereading of former CALCRIM No. 400.

In April 2010, CALCRIM No. 400 was rewritten and the "equally guilty" sentence was eliminated. CALCRIM No. 400 now provides, in relevant part: "A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." The bench notes to CALCRIM No. 400 currently provide, in relevant part: "An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state." (Judicial Council of Cal. Crim. Jury Instructions (2011) Bench Notes to CALCRIM No. 400, p. 167.)

Assuming without deciding the "equally guilty" language in the instruction given was erroneous, we find such an error would have been harmless in this case. The applicable prejudice test is the Chapman standard because it omits or inaccurately describes an element. (Chapman v. California (1967) 386 U.S. 18, 24; Nero, supra, 181 Cal.App.4th at pp. 518-519.) Under Chapman, an appellate court may find an error harmless only if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Nero, supra, at p. 519.)

Here, the error is harmless beyond a reasonable doubt because any factual question posed by the potentially confusing instruction was necessarily resolved adversely to Sirypangno under other instructions. (Hart, supra, 176 Cal.App.4th at pp. 673-674; People v. Stewart (1976) 16 Cal.3d 133, 141.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the courts instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

The court instructed the jury under CALCRIM No. 401 as follows:

"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] (1) The perpetrator committed the crime; [¶] (2) The defendant knew that the perpetrator intended to commit the crime; [¶] (3) Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] and (4) the defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
"If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. [¶] However, the fact that a person is present at the scene of a crime or fails to prevent the crime, does not by itself make him or her an aider and abettor."

Thus, the jury was told that aiding and abetting liability would not attach unless the aider and abettor knew of the direct perpetrator's intent in committing the crime and shared that same intent, and the aider and abettor aided, facilitated, promoted, encouraged or instigated the perpetrator's commission of the crime. Under CALCRIM No. 401, the jury must independently assess the mental state of the aider and abettor.

Further, the jury was instructed pursuant to CALCRIM No. 521 as follows:

"If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree.
"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.
"On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"All other murders are of the second degree.
"The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."

Thus, the jury was told that if it was not satisfied beyond a reasonable doubt that Sirypangno was guilty of first degree murder, it could find him guilty of a lesser crime.

To the extent Sirypangno argues that, absent the "equally guilty" language, the jury might have convicted him of second degree murder or manslaughter, we disagree. The evidence was undisputed that (1) Sirypangno handed Phommachanh the murder weapon, (2) Phommachanh planned to return and/or was summoned back to the party site, (3) before he got out of the car, Phommachanh donned a mask and retrieved the .45 caliber semiautomatic handgun from the glove compartment, and (4) after Phommachanh returned, Sirypangno identified Thompson as the person who had insulted him and the gang. In short, there was overwhelming evidence that Sirypangno not only aided and abetted a murder, but aided and abetted a first degree murder because it was willful, deliberate and premeditated and perpetrated by repeatedly firing a semiautomatic weapon at Thompson. We make this conclusion under either theory of aider and abettor liability -- that is, (1) Phommachanh committed these crimes and Sirypangno shared his intent to commit them, or (2) the murder and attempted murder were the natural and probable consequences of the target crime of a gang-motivated battery.

We find beyond a reasonable doubt that the jury would have reached the same verdict in the absence of the "equally guilty" language.

D. Sufficiency of Evidence for Gang Enhancement

A gang enhancement attaches to a crime when felonious conduct is "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).)

Sirypangno, joined by Phommachanh (see fn. 2, ante) contends there was insufficient evidence to support the jury's true finding on the section 186.22, subdivision (b)(1) gang allegation because the prosecution provided only speculation -- not evidence -- that (1) the murder, attempted murder and assault with a semiautomatic firearm were committed for the benefit of, at the direction of, or in association with any criminal street gang and (2) these crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. The contention is without merit.

We review the sufficiency of the evidence to support enhancement allegations under the same standard we apply to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457.) We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We ask whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the allegations to be true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

The prosecution may, as in this case, present expert testimony on criminal street gangs to prove the elements of the criminal street gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; People v. Sengpadychith (2001) 26 Cal.4th 316, 322; People v. Gardeley (1996) 14 Cal.4th 605, 617-620 (Gardeley).) "[E]xpert testimony about gang culture and habits is the type of [circumstantial] evidence a jury may rely on to reach . . . a finding on a gang allegation." (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).) Permissible expert testimony includes the size, composition or existence of the gang, the gang's turf or territory, an individual defendant's membership in the gang, the primary activities of the gang, whether or how a crime was committed to benefit or promote the gang, and motivation for a particular crime. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1514.)

With respect to the gang benefit element of section 186.22, subdivision (b)(1), Detective Hatfield, the prosecution's gang expert, testified that gangs gain what they deem as respect by committing violent crimes against general members of the community as well as against members of rival gangs. In his general testimony about gangs, Hatfield also said acts of disrespect to a gang or gang member are not left unanswered. An act of disrespect to an individual gang member is considered an act of disrespect to the gang. Verbal insults can constitute an act of disrespect, and such verbal exchanges often escalate into violent confrontations. Fellow gang members typically provide backup to a disrespected gang member.

The gang detective also testified it is not unusual for a gang member to get into a physical fight with someone who had verbally disrespected him -- even if the person had no gang ties -- and for the fight to lead to someone being shot to death. Hatfield said that such a scenario would benefit the gang because it would enhance the gang's reputation for violence and increase the level of fear and intimidation the gang has in the community.

Significantly, Hatfield's expert testimony provided context to the jury about Sirypangno's and Thompson's heated over-the-fence exchange. Specifically, the jury heard evidence that Sirypangno believed Thompson had called OKB members "bitches" and the exchange concluded with Thompson saying "suck my dick," and Sirypangno throwing a wood plank over the fence and suggesting that he would physically confront Thompson soon.

Afterward, Sirypangno told Phommachanh about the exchange and waited outside for Thompson to leave the backyard. As he waited for Thompson, Sirypangno asked a friend to phone Phommachanh, who had left, to return. Upon returning, Phommachanh donned a mask, retrieved the gun from the glove compartment, waved the gun after exiting the car and shouted "who wants it." Phommachanh then joined Sirypangno, Joyce and Giraud, who were lined up in front of the house waiting for Thompson to emerge from the backyard. When Thompson emerged, Sirypangno approached him and said "you the fool who told me to suck your dick," thereby informing Phommachanh who was the target.

The jury could also consider an earlier incident at the party when Sirypangno and Phommachanh were asked to leave. Sirypangno responded by brandishing the gun and saying: "This OKB." Phommachanh's response was to flash gang hand signs.

The totality of the evidence was legally sufficient for the jury to conclude that Phommachanh and Sirypangno committed the crimes "for the benefit of, at the direction of, or in association with [a] criminal street gang." (§ 186.22, subd. (b)(1).) Under existing case law, that fact that Phommachanh perpetrated the crimes in the company of fellow gang members supports an inference that the crimes were committed for the benefit or in association with the gang. (See People v. Miranda, supra, 192 Cal.App.4th at pp. 412-413 [commission of crime accompanied by gang members supports inference defendant intended to benefit gang]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales) [commission of crime with fellow gang members supports inference crime was committed in association with gang].) The fact Phommachanh killed Thompson and committed the other crimes in front of witnesses after Thompson insulted fellow gang member Sirypangno also supports an inference these crimes were committed for the benefit of the OKB gang. Case law recognizes that "[a] community cowed by gang intimidation is less likely to report gang crimes and to assist in their prosecution. The gang benefit is plain." (People v. Margarejo (2008) 162 Cal.App.4th 102, 110; see also Gardeley, supra, 14 Cal.4th at p. 619 [expert testimony that crimes by gang member were committed to instill fear in community sufficient to support gang enhancement allegations]; Ferraez, supra, 112 Cal.App.4th at p. 931 [finding substantial evidence supported gang enhancement when expert opinion was couple with other testimony from which jury reasonably could infer crime was gang related].)

Sirypangno maintains the assault on Thompson was committed for a personal reason -- a verbal argument between him and Thompson -- and not to benefit OKB. Sirypangno claims he was personally insulted by Thompson's "suck his dick" comment; this was the impetus for the fight -- not gang-related issues, such as gang territory or past grievances with a rival gang. Relying on Thompson's lack of gang membership and the absence of gang signs and other manifestations of the OKB gang,¹² Sirypangno urges that the most the prosecution showed was a possibility that the crimes were for the benefit of the gang. We disagree.

12 Although there was no calling out of "OKB" and no flashing of gang hand signals during the fatal confrontation with Thompson, Sirypangno had shouted, "This is OKB," and Phommachanh had flashed hand signals when they were confronted by Farhan and others earlier that evening.

To be sure, "[n]ot every crime committed by gang members is related to a gang . . . ." (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) Further, "it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang." (Morales, supra, 112 Cal.App.4th at p. 1198.) However, the issue before us is not whether there was evidence from which the jury could have concluded the murder and other crimes were personal rather than gang related. Rather the issue is whether the jury was presented with evidence that was reasonable, credible and of solid value from which a reasonable trier of fact could find the enhancement was true beyond a reasonable doubt. Here, the jury heard such evidence. Ultimately it was for the jury to resolve any evidentiary disputes, and we have no power to reweigh the evidence, make credibility calls or substitute our conclusion for the jury's. (Albillar, supra, at p. 60; Ferraez, supra, 112 Cal.App.4th at p. 931.)

Sirypangno's reliance on People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), People v. Ramon (2009) 175 Cal.App.4th 843, 851 (Ramon) and People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) is misplaced.

Ochoa, supra, 179 Cal.App.4th 650, in which the Court of Appeal reversed true findings on gang allegations in connection with the defendant's conviction for carjacking and being a felon in possession of a firearm, is distinguishable. The defendant was not accompanied by fellow gang members; he acted alone. (Id. at p. 662.) Further, there was no evidence of gang names, gang signals or other manifestations typically associated with gangs. (Ibid.) The appellate court observed that "[a] gang expert's testimony alone is insufficient to find an offense gang related" and that the " 'record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' [Citation.]" (Id. at p. 657, italics omitted.)

Ramon, supra, 175 Cal.App.4th 843, is similarly distinguishable because that case involved the propriety and sufficiency of expert testimony where there is no supporting evidence. In Ramon, officers stopped the defendant, a conceded gang member, while he was driving a stolen vehicle within his gang's territory with a fellow gang member. (Id. at p. 847.) Inside the vehicle was a loaded, unregistered firearm under the driver's seat. The defendant was charged with receiving a stolen vehicle, being a felon in possession of a firearm and carrying a loaded firearm in public for which he was not a registered owner and corresponding gang enhancements. The jury convicted the defendant and found the gang allegations to be true. (Id. at pp. 847-848.) The appellate court vacated the gang enhancements, concluding there was insufficient foundation for the expert's opinions:

"The People's expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury's finding. There
were no facts from which the expert could discern whether [the defendant and his companion] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang]. While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence." (Id. at p. 851.)

Unlike Ochoa, supra, 179 Cal.App.4th 650 and Ramon, supra, 175 Cal.App.4th 843, here the expert's testimony was not the only evidence that the offenses were gang related.

Albarran, supra, 149 Cal.App.4th 214 is not helpful to Sirypangno and Phommachanh. The Court of Appeal in Albarran did not consider whether there was sufficient evidence to support gang enhancement allegations, but rather, whether gang evidence was admissible with respect to the underlying offenses at issue in that case. (Id. at pp. 222-223.) The fact that crimes in Albarran occurred at a birthday party is of no significance.

As to the second element of section 186.22, subdivision (b)(1) -- the specific intent issue -- Sirypangno again relies on evidence that the initial assault on Thompson was personal and argues the prosecution showed no more than the possibility that he had the requisite specific intent to promote, further, or assist in gang crime. As explained above, we reject Sirypangno's restrictive view of the evidence.

Sirypangno's second argument concerning the lack of the requisite specific intent is that there was no evidence showing the crimes furthered some other criminal conduct by OKB.

The problem with Sirypangno's argument is that he has misread or misconstrued the statute. Section 186.22, subdivision (b)(1) does not require the specific intent to further some other criminal conduct by the gang; "[w]hat is required is the 'specific intent to promote, further, or assist in any criminal conduct by gang members. . . .' " (Morales, supra, 112 Cal.App.4th at p. 1198, italics added.) The overwhelming majority of decisions by Courts of Appeal throughout the state have subscribed to this interpretation of the statute -- namely section 186.22, subdivision (b)(1) requires the specific intent to aid any criminal activity by gang members. (See, e.g., People v. Villalobos (2006) 145 Cal.App.4th, 310, 322 (Villalobos); People v. Romero (2006) 140 Cal.App.4th 15, 19-20; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332; People v. Leon (2008) 161 Cal.App.4th 149, 163.)

Sirypangno, on the other hand, principally relies on two federal opinions by the Ninth Circuit Court of Appeals (Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069), which have now been repudiated by our Supreme Court in Albillar, supra, 51 Cal.4th 47, 65-66.)¹³

13 Our Supreme Court filed the Albillar opinion after Sirypangno's and Phommachanh's opening briefs were filed, but before the Attorney General's respondent brief was filed. In his reply brief, Sirypangno cites Albillar on a different point. (Albillar, supra, 51 Cal.4th 47.)

In Garcia v. Carey, supra, 395 F.3d at page 1101 and Briceno v. Scribner, supra, 555 F.3d at page 1079, divided panels of the Ninth Circuit held section 186.22, subdivision (b)(1) requires evidence that a defendant had the specific intent to further or facilitate other criminal conduct, i.e., "other criminal activity of the gang apart" from the offenses for which the defendant was convicted.

In Albillar, supra, 51 Cal.4th at page 66, the state's high court rejected this interpretation of the statute by the Ninth Circuit and adopted the one set forth by the majority of appellate courts in the state. "[T]he scienter requirement in section 186.22, [subdivision] (b)(1) -- i.e., 'the specific intent to promote, further or assist in any criminal conduct by gang members' -- is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, at p. 66.) We, of course, are bound by the Albillar conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

As to the argument that section 186.22, subdivision (b)(1) requires the specific intent to promote, further, or assist a gang-related crime, the Albillar court observed:

"The enhancement already requires proof that the defendant commit a gang-related crime in the first prong -- i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Albillar, supra, 51 Cal.4th at p. 67; original italics.)

In other words, section 186.22, subdivision (b)(1) "applies when a defendant has personally committed a gang-related felony with specific intent to aid members of that gang." (Albillar, supra, at p. 68.)

With the law now settled, "[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (Villalobos, supra, 145 Cal.App.4th at p. 322.)

We conclude there is substantial evidence that Sirypangno and Phommachanh had the requisite specific intent to promote, further and assist criminal conduct by gang members. Sirypangno and Phommachanh were OKB gang members attending a party where their very presence was questioned earlier that evening, leading them to jump over the backyard fence. Although no violence erupted during that incident, Sirypangno called out "OKB" and Phommachanh flashed gang hand signs. Later, Sirypangno believed he heard Thompson insult him ("suck my dick") and his gang (the "bitches" remark). Sirypangno informed Phommachanh of the over-the-fence exchange. Also, Sirypangno gave Phommachanh the firearm before Phommachanh left the party. Sirypangno then waited outside for Thompson to emerge from the backyard. A reasonable inference was that Sirypangno told Phommachanh about the insults to secure gang backup for his ensuing fight with Thompson. Another reasonable inference was that Phommachanh planned to return to the party with the firearm to provide the backup. Detective Hatfield, the prosecution's gang expert, testified that respect toward gang members is paramount in gang culture and gang members do not leave insults unanswered. Verbal insults can constitute an act of disrespect, and such verbal exchanges often escalate into violent confrontations. Fellow gang members typically provide backup to a gang member, who has been disrespected. Hatfield also testified that violent crimes benefit gangs because as news of their crimes is spread in the community, the level of public fear and intimidation increases. "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation . . . can be sufficient to raise the inference that the conduct was 'was committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22, [subdivision] (b)(1)." (Albillar, supra, 51 Cal.4th at p. 63.) A jury could have reasonably concluded that in committing the charged crimes, Sirypangno and Phommachanh acted with the requisite specific intent -- namely, "to promote, further or assist gang members in the commission of the crime." (Villalobos, supra, 145 Cal.App.4th at p. 322.) The jury reasonably could have inferred that Sirypangno and Phommachanh acted "with the specific intent to promote, further, or assist in any criminal conduct by [fellow] gang members." (§ 186.22, subd. (b)(1).) The fact that Sirypangno was personally insulted by Thompson did not remove the case from application of section 186.22, subdivision (b)(1).¹⁴

14 Sirypangno argues the true findings on the firearm enhancements under section 12022.53, subdivisions (d) and (e) must also be reversed because they were dependent on the true finding on the section 186.22, subdivision (b) allegation. This argument fails because there is substantial evidence to support the gang enhancements.

E. Cumulative Error

Sirypangno contends errors committed had a cumulative prejudicial effect that denied him a fair trial.

Under the cumulative error doctrine, the reviewing court must "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence." (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) When the cumulative effect of errors deprives the defendant of a fair trial and due process, reversal is required. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)

Here, we have assumed error only in failing to reference first degree murder rather than murder generally in CALCRIM No. 403 and in using the "equally guilty" language of former CALCRIM No. 400. We concluded that in each instance any such error was harmless. This is so whether considered individually or collectively. (See People v. Rogers (2006) 39 Cal.4th 826, 911 (Rogers).) As discussed above, the evidence against Sirypangno was overwhelming.

II

PHOMMACHANH'S APPEAL

A. Jury Venire Was Not Representative¹⁵

15 The discovery aspects of Phommachanh's challenge to the jury venire were before us in Roddy v. Superior Court (2007) 151 Cal.App.4th 1115, 1120. Phommachanh and Sirypangno, along with Mark Brown, a defendant in a separate criminal proceeding, sought enforcement of subpoenas duces tecum on the jury commissioner to disclose Department of Motor Vehicle (DMV) records used to compile the jury summons lists. After the trial court had ordered enforcement of the subpoenas duces tecum, the jury commissioner petitioned for a writ of mandate challenging the order. (Ibid.) We granted the petition, finding among other things, that Brown, Phommachanh and Sirypangno had not shown the DMV information subject to the subpoenas was relevant to proving their claim of minority underrepresentation because of systematic exclusion. (Id. at pp. 1137-1143.)

Phommachanh, joined by Sirypangno (see fn. 2, ante) contends, as he did at trial, that he was denied his constitutional right to be tried by a jury drawn from a fair cross-section of the community. Specifically, Phommachanh claims that Hispanics have been systematically underrepresented in the jury venire from which his jury was selected. The contention is without merit.

1. Legal Principles

The Sixth Amendment to the United States Constitution and the California Constitution guarantee an accused the right to trial by a jury drawn from a representative cross-section of the community. (People v. Bell (1989) 49 Cal.3d 502, 525, fn. 10 (Bell).) "That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community." (People v. Horton (1995) 11 Cal.4th 1068, 1087 (Horton).) ¹⁶

16 A jury "pool" is the master list of eligible jurors. A "venire" is a group of prospective jurors selected from the pool and made available after excuses and deferrals have been granted. A "panel" is a group selected from the venire and sent to the courtroom for voir dire. (Bell, supra, 49 Cal.3d at p. 520, fn. 3.)

In challenging a jury venire, a defendant must first establish a prima facie violation of the fair cross-section right. (Bell, supra, 49 Cal.3d at p. 525.) "In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show that (1) the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." (Duren v. Missouri (1979) 439 U.S. 357, 364 (Duren).)

If the defendant makes the prima facie showing under Duren, supra, 439 U.S. 357, "the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire." (Horton, supra, 11 Cal .4th at p. 1088.)

On review, resolution of Phommachanh's claim that Hispanics were underrepresented on the jury venire presents a mixed question of law and fact. We apply de novo review to the legal (constitutional) issue, and defer to the trial court's factual findings if they are supported by substantial evidence. (People v. Ramos (1997) 15 Cal.4th 1133, 1154.)

2. Background

In January 2008, counsel for Brown (see fn. 15, ante) filed a challenge to the jury venire; he claimed Hispanics were being excluded in the central district (downtown) venire. Phommachanh and Sirypangno filed a motion to join Brown's challenge, which was granted.

In May and June 2008, before trial commenced, the trial court in Brown's case conducted an extensive hearing on Brown's claim that Hispanics were underrepresented in the jury venire for the downtown San Diego courthouse, in which he was being tried.¹⁷ The downtown central district has about 45 percent of the county's population, but a disproportionate number of jury trials are held in the central district's courtrooms. For example, in 2007, the central district used 998 jury panels, the North County district used 330 jury panels, the East County district used 326 jury panels and the South Bay district used 83 panels.¹⁸

17 San Diego County Superior Court consists of four judicial districts -- downtown central, North County, East County and South Bay -- which coincide with the county's former municipal court districts before court unification.

18 Because of the small number of jury trials in the South Bay district, the jury commissioner's office allows prospective jurors to call in to see if they are needed.

In 2007, the jury commissioner's office adopted a 70/30 draw for the central district, which provided that 70 percent of prospective jurors summoned for jury service in the central district were residents of the district and the remaining 30 percent were residents of the three other judicial districts. (See fn. 17, ante.)¹⁹ The purpose of the 70/30 draw was to provide all eligible prospective jurors in San Diego County an equal opportunity to be summoned for jury service and to factor in the much higher workload -- or need for jurors -- in the central district, with its approximately 1,000 annual jury trials. The 70/30 draw was based entirely on population distribution numbers and workload demands; it was not based on race considerations.

19 Previously, the jury commissioner's office used an 87/13 draw for the central judicial district.

Also in 2007, the jury commissioner's office adopted written policies to standardize the granting of excusals from jury service for medical, financial hardship and language difficulty reasons. The goal was to ensure excusals were legitimately approved.

Brown's demographics expert, John Weeks, a professor of geography and the director of the international population center at San Diego State University, testified that about 19 1/2 percent of the county's Hispanic population was eligible to serve as jurors, according to census date. In the central district, the figure is 14.99 percent. Using data from a survey conducted in early 2007 before the jury commissioner adopted the 70/30 draw (see fn. 19, ante), Weeks testified that 9.4 percent of the people showing up for jury service in the central district were Hispanic, which constituted a 9.6 percent absolute disparity and a disparity of 50 percent underrepresentation when compared to the countywide figure for the jury eligible Hispanic population.

Weeks testified that the disproportionate 70/30 draw for the central district did not give everyone in the county an equal opportunity to serve and that the boundaries of the judicial districts would have to be changed to accomplish such equality. Weeks also testified that the systematic exclusion of Hispanics was caused by the jury commissioner's lax and inconsistent policies for granting excusals from jury service -- particularly those granted for lack of English proficiency -- and the high number of failures to appear in the South Bay judicial district, which has the county's highest percentage of Hispanics.

Weeks opined that systematic methods used in the county were responsible for the lower percentage of Hispanics in the jury venire for the central district. Weeks also said the 70/30 draw made the situation worse.

The prosecution's expert, Michael Sullivan, who operates a consulting firm that specializes in statistical analysis, testified Hispanics make up 19.59 percent of the county's population who are eligible to serve on a jury. Sullivan further testified that under the current 70/30 draw, Hispanics made up 17.83 percent of the potential jurors summoned to the central judicial district. This amounts to a 1.76 percent (19.59 % - 17.83%) absolute disparity when compared to the percentage of Hispanics in the countywide population, which was a lower percentage than under 87/13 split. Sullivan testified the reason a disparity exists under the split draw system is that the county's Hispanic population is concentrated in the South Bay and North County districts.

The trial court found Brown failed to make a prima facie case under Duren, supra, 439 U.S. 357. The court acknowledged that the first Duren criterion was satisfied -- Hispanics were a cognizable group. (People v. Sanders (1990) 51 Cal.3d 471, 491 [Hispanics constitute a distinctive group in community within meaning of first requirement for Duren prima facie case].)

However, the court ruled Brown had not met the second and third Duren requirements. As to the second Duren requirement, the court found the disparity of Hispanics in the central judicial district compared to the countywide Hispanic population was not constitutionally significant under both Week's analysis and Sullivan's analysis. As to the third Duren requirement, the trial court found that Brown had not demonstrated that any underrepresentation was caused by systematic exclusion of Hispanics in the jury selection process.

The trial court stated it did not put a lot of weight behind the statistical evidence presented by expert Weeks because (1) it was largely based on the 2007 survey, which took place over a relatively short period (four weeks), and (2) changes implemented by the jury commissioner's office since the survey was conducted most likely reduced any disparity.

In sum, the trial court found the jury selection process was race neutral and that the representation of Hispanics in the venire was fair and reasonable in relation to the number of Hispanics in the county.

3. Analysis

Regarding the second Duren requirement, we note Weeks opined that there was an absolute disparity of 9.6 percent while Sullivan opined there was an absolute disparity of 1.76 percent. The trial court found both numbers were constitutionally insignificant. Although there have been cases that have held a disparity of less than 10 percent is not constitutionally significant (see e.g., Swain v. Alabama (1965) 380 US. 202, 208-209; overruled on another ground in Batson v. Kentucky (1986) 476 U.S. 79, 100, fn. 25 [10 percent disparity deemed inadequate], it is difficult to identify a threshold of disparity sufficient to be deemed constitutionally significant under the second Duren requirement. (Bell, supra, 49 Cal.3d at p. 528, fn. 15.) But certainly, the 1.76 percent disparity figure supplied by Sullivan was constitutionally insignificant. (Ibid.) At any rate, we do not have to decide the issue here because the trial court ruled Brown failed to establish a prima facie case under the third Duren requirement. (People v. Burgener (2003) 29 Cal.4th 833, 857.)

To meet the burden to show that underrepresentation was the result of systematic exclusion -- the third element of the Duren test -- a defendant must establish more than statistical evidence of a disparity. A defendant also must show that the disparity is the result of an improper feature of the jury selection process. (Bell, supra, 49 Cal.3d at p. 530.) If a county's jury selection criteria are neutral to race, the defendant must identify some aspect of the manner in which the selection criteria are applied that is constitutionally impermissible. (Id. at p. 524.)

Contrary to Phommachanh's appellate contention, the record supports the court's conclusion -- namely, whatever the underrepresentation of Hispanics was in the central judicial district venire, it was not caused by systematic exclusion of Hispanics in the jury selection process. Substantial evidence supports the trial court's finding that Weeks's analysis, based on the 2007 survey, deserved little weight. Substantial evidence also supported the court's findings that (1) changes in the jury selection process made after the 2007 survey have likely reduced the disparity of Hispanics in the central judicial district venire and (2) these changes were implemented to provide all eligible prospective jurors in San Diego County with an equal opportunity to be summoned for jury service and to balance the workloads of the judicial districts. The trial court's conclusion that the jury selection process in the county was race neutral was supported by substantial evidence.

B. Admission of "Felon" Gang Moniker and Gang Rap Lyrics

Phommachanh contends the trial court committed prejudicial error by admitting evidence of his gang moniker "Felon" and rap lyrics found underneath his bed, which glorified OKB gang life, including criminal activity. Specifically, Phommachanh argues the evidence was irrelevant, inadmissible as bad acts evidence and unduly prejudicial.

In searching Phommachanh's residence after the shooting, police found a piece of paper under his mattress with his writing. The defense characterized the writing as the lyrics to a rap song. Phommachanh had written about OKB as his "set" (gang), referring to himself and other OKB members as "killaz" (killers).²⁰ According to the lyrics, OKB members "put in work" (commit crimes or violent acts) for the gang to earn respect, are not "part-time bangers" (gang want-to-bes as opposed to real gang members), who "blast on sight" (shoot on sight). The lyrics continued with this general warning to everyone who is not a OKB member: If you try to "pull my card" (tick me off), "just watch you ass tonight" because OKB fellow gang members are "watching my back" (making sure I do not get hurt); if attacked, I'm armed with ".45 SK clock'd back one in the chamber" (handgun ready to be fired). To all "cross town duck" (anyone OKB does not like) "your li[v]es are in danger."²¹

20 The interpretation of certain terms in the lyrics by Detective Hatfield, the prosecution's gang expert, is set forth in parentheses.

21 The rap lyrics read verbatim: "Southeast OKB that's the set I bang, where real killaz put in work to earn respect in the game. Ain't no part time bangers, cause we blastin' on sight. So if you tryna pull my card, just watch you ass tonight, the 15 11 02 gang watching my back, for all yall sneeky muthafuckaz creeping trying to attack; got the [.45 - crossed out] SK clock'd back one in the chamber, to yall cross town duck cause you lifes in danger. [to put yall cross town fools to sleep Oriental Killaz Boys. Mr. Felon's my name, kickin off the war - crossed out] Oriental Killa Boys straight pushing the line, so take a step up to the plate to see just what you'll find, it's some hard hitting batters and you ain't the first, victim taken out by Killaz, now you rolling the hurst."

Phommachanh sought to exclude all evidence regarding his gang moniker -- including redacting the moniker from the prosecution's photograph boards -- and the rap lyrics. Phommachanh lodged objections on relevancy grounds as well as Evidence Code section 352 and 1101.²²

22 Defense counsel also argued the lyrics were hearsay.

The trial court ordered the prosecution to remove the moniker from the photograph boards, but allowed the moniker to be used. The court instructed the jury that "Felon" was only his moniker or nickname, Phommachanh had not been convicted of a felony, and the moniker was admitted for the limited purpose of proving the gang allegations.²³We presume that the jury followed the trial court's limiting instructions absent evidence that it failed to do so. (People v. Lindberg (2008) 45 Cal.4th 1, 26 (Lindberg).)

23 During trial, the court told the jury: "I have allowed the introduction of the moniker or the nickname, whatever you want to call it, of Mr. Phommachanh as being Felon. This is admitted for a limited purpose. [¶] You'll recall when I read the charges to you, I read that as to each of the three charges, there is an allegation, which is up to you to decide, that these offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang, with a specific intent to promote, further and assist in criminal conduct by gang members . . . . [¶] This evidence is admitted for that purpose only. It's up to you to decide whether or not it establishes that. I'm not telling you that it does. I'm merely saying it is admissible on behalf of the district attorney to try to show that. [¶] I would inform you at this time that Mr. Phommachanh does not have a felony record. So he is not a convicted felon. It is a moniker. It is a nickname. I don't know where he got it, how he got it, who gave it to him. It is a nickname. And I've admitted that for a limited purpose only."

As to the rap lyrics, the trial court found they were relevant to Phommachanh's state of mind, intent and motive, as well as to the issue of premeditation. The court admitted the lyrics as evidence only as to Phommachanh; the jury was instructed not to consider the rap lyrics against Sirypangno. The jury also was instructed the gang evidence could not be considered proof that Phommachanh was a person or bad character or had a disposition to commit crimes.

We reject Phommachanh's argument that the trial court allowed impermissible bad acts evidence. Evidence of other crimes or misconduct is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crimes charged. (Evid. Code, § 1101, subd. (a).) However, evidence of other crimes or misconduct by a defendant is admissible if it " '[tends to] logically, naturally, and by reasonable inference . . . establish any fact material for the people, or to overcome any material matter sought to be proved by the defense[.]' " (People v. Peete (1946) 28 Cal.2d 306, 315.) Evidence Code section 1101, subdivision (b) codifies this exception to the general rule of inadmissibility by providing for the admission of such evidence "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [the defendant's] disposition to commit such [crimes or bad acts]."

"[I]f a person acts similarly in similar situations, it can logically be inferred that he probably harbors the same intent in each instance." (People v. Denis (1990) 224 Cal.App.3d 563, 568.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) We review the admission of evidence under Evidence Code section 1101, subdivision (b) for an abuse of discretion. (People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels); see also People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp) [trial court's determination is essentially a determination of relevance that is reviewed for abuse of discretion].) When reviewing the admission of bad act evidence, a court considers: (1) the materiality of the fact to be proved or disproved; (2) the probative value of the bad act evidence; and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. (Daniels, supra, at p. 856.)

Admission of prior act evidence cannot contravene other policies limiting the admissibility of evidence, such as Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at p. 404.) "There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (Kipp, supra, 18 Cal.4th at p. 371.) The standard of review is abuse of discretion. (Ibid.) "A court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (Ibid.)

Intent to kill and premeditation were material to this case. Phommachanh's not guilty plea put in issue all of the elements of the offenses, including intent. (Daniels, supra, 52 Cal.3d at pp. 857-858.) Criminal intent is seldom proved by direct evidence and often must be inferred from a defendant's conduct. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380.) Statements by a defendant frequently are relevant to show intent for the charged crime. (See e.g., People v. Lang (1989) 49 Cal.3d 991, 1013 [first-degree murder defendant's habit of carrying a gun and statements he would "waste" who interfered with him were relevant to his state of mind]; People v. Rodriguez (1986) 42 Cal.3d 730, 756-757 [in murder prosecution defendant's threat against victim is relevant to prove intent and a generic threat is admissible to show defendant's homicidal intent where other evidence brings actual victim within scope of threat].)

Gang evidence that is logically relevant to some material issue in the case other than character evidence is admissible if it is not more prejudicial than probative and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Gang evidence should not be admitted where its sole relevance is to show a defendant's criminal disposition or bad character. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) But where there is a gang allegation, gang evidence will usually be admissible. (See, e.g., Ferraez, supra, 112 Cal.App.4th at p. 930 ["expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation"].) Moreover, gang evidence is admissible when it "is relevant to an issue of motive or intent." (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) The probative value of motive evidence generally exceeds its prejudicial effect because motive typically is the incentive for criminal behavior; therefore, wide latitude is permitted in admitting such evidence. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; see also People v. Martin (1994) 23 Cal.App.4th 76, 81 [gang activity or membership admissible where "important to the motive . . . even if prejudicial"].)

Appellate courts have found rap lyrics containing gang references to be admissible. (People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin); People v. Zepeda (2008) 167 Cal.App.4th 25, 34-35.)²⁴ In Olguin, at pages 1372 to1373, the defendant, accompanied by fellow gang members, shot and killed a rival gang member. A codefendant had written rap lyrics, including in part:

24 Foreign jurisdictions have also upheld the admission of rap songs to show criminal intent. (See Cook v. State (Ark. 2001) 45 S.W.3d 820, 823 [lyrics about having a machete and wanting money from everybody probative of defendant's intent to commit aggravated robbery]; Britt v. State (Ark. 1998) 974 S.W.2d 436, 448 [rap tape corroborative of intent of defendant and his accomplices in carrying out plan similar to that suggested by lyrics]; State v. Koskovich (N.J. 2001) 776 A.2d 144, 163 ["lyrics . . . were sufficiently probative of defendant's motive in that they revealed defendant's obsession with, or at least interest in, killing"].)

"When I walk out my door I have to pack my forty four. R.I.P. there [sic] a bunch of punks they will get beat were [sic] number 1." (Id. at p. 1372, fn. 3.)

Rejecting the argument that the lyrics were inadmissible character evidence, the Court of Appeal held the rap song lyrics were relevant and admissible as to the codefendant to show "his membership in [the gang], his loyalty to it, his familiarity with gang culture, and, inferentially, his motive and intent on the day of the killing." (Id. at p. 1373.)

We conclude Phommachanh's rap lyrics, which declared his readiness and zeal to shoot at anyone who ticked him off, were relevant to show intent and motive for the charged crimes. Because the rap lyrics evidenced intent, their admission did not violate the statutory restriction on propensity or character evidence under Evidence Code section 1101, subdivision (a). (People v. Barnett (1998) 17 Cal.4th 1044, 1119.)

Our conclusion, however, does not end the analysis. Because the potential for prejudice is high with this type of evidence, its relevancy is to be "examined with care." (People v. Sam (1969) 71 Cal.2d 194, 203.) Such evidence should not be admitted in contravention of Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at p. 404.) Accordingly, we must proceed to examine whether the probative value of the rap lyrics was "substantially outweighed by the probability that its admission [would] create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)

Prejudice, as used in Evidence Code section 352, means the creation of an emotional bias against the defendant through evidence with little probative value. (People v. Karis (1988) 46 Cal.3d 612, 638.) " '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial.'' The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (Karis, supra, at p. 638.)

In Olguin, supra, 31 Cal.App.4th 1355, the Court of Appeal noted that a trial court has broad discretion to admit or to exclude evidence under Evidence Code section 352. (Id. at pp. 1369, 1373.) "Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias." (Olguin, supra, at p. 1369.) " 'Where . . . a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (Id. at p. 1373.)

The rap lyrics revealed Phommachanh's willingness to kill those who challenged his OKB gang and those who ticked him off; therefore, they were highly probative of his intent and motive. Although the rap lyrics "would undoubtedly be disturbing to most people[,] we cannot say [they were] substantially more prejudicial than probative, for [their] value in establishing defendant's [requisite mental state] to [commit first degree murder] was substantial." (People v. Memro (1995) 11 Cal.4th 786, 865.) "The mere fact the lyrics might be interpreted as reflective of a generally violent attitude could not be said 'substantially' to outweigh their considerable probative value." (Olguin, supra, 31 Cal.App.4th at p. 1373.)

In arguing that the rap lyrics evidence was more prejudicial than probative Phommachanh relies on People v. Humiston (1993) 20 Cal.App.4th 460. The reliance is misplaced as that non-gang case is distinguishable. In Humiston this court reviewed the propriety of the trial court's admission -- over an Evidence Code section 352 objection -- of the defendant's pager number, "187," which is the number of the Penal Code section for murder. (Humiston, supra, at pp. 480-481.) We held that this was error, reasoning that the significance of the pager number "was not relevant to prove any fact other than [the defendant's] disposition to commit murder." (Id. at p. 481.) Here, however, as we have explained, the rap lyrics were relevant to intent and motive, which were issues properly before the jury.

We also note that here the trial court instructed the jury not to consider the gang evidence as proof that Phommachanh was a person of bad character or that he had a disposition to commit crimes. The jury is presumed to have followed the trial court's limiting instructions absent evidence to the contrary. (Lindberg, supra, 45 Cal.4th at p. 26.)

We conclude the rap lyrics would not have evoked a bias against Phommachanh for reasons unrelated to his guilt (see People v. Scheid (1997) 16 Cal.4th 1, 19), because the violence of the charged crimes themselves subsumes any additional prejudice from the lyrics. Because the rap lyrics were highly probative of Phommachanh's intent and motive to commit first degree murder, the trial court did not abuse its discretion in finding the prejudicial effect did not substantially outweigh the probative value of the evidence.

C. Failure to Give CALCRIM No. 522

Phommachanh contends the trial court's failure to instruct the jury pursuant to CALCRIM No. 522²⁵ was error because it deprived him of having the jury determine whether provocation prevented him from acting with premeditation and deliberation.

25 CALCRIM No. 522 reads: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]"

CALCRIM No. 522 is a pinpoint instruction, and the trial court has no duty to give a pinpoint instruction sua sponte. (Rogers, supra, 39 Cal.4th at pp. 878-879 [addressing CALJIC No. 8.73, the predecessor instruction to CALCRIM No. 522].) Although Phommachanh did not directly request CALCRIM No. 522, he argues he did not forfeit this assignment of error because he relied upon the prosecutor to supply the court with a copy of the instruction. The parties agree -- and the record shows -- provocation instructions were brought up during discussions between the court and counsel, and the court specifically asked the prosecutor to supply a copy of CALCRIM No. 522 "just in case." In light of these circumstances, we will reach the substantive issue.

What would otherwise be deliberate and premeditated first degree murder may be mitigated to second degree murder if the jury finds that the defendant "formed the intent to kill as a direct response to . . . provocation and . . . acted immediately," i.e., without deliberation or premeditation. (People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.)

Provocation sufficient to mitigate a murder to second degree murder requires only a finding that the defendant's subjective mental state was such that he did not deliberate and premeditate before deciding to kill. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.) Thus, a defendant who is subjectively prevented from deliberating because of sufficient provocation is guilty of second degree rather than first degree murder, even if a reasonable person would not have been so precluded. (Id. at pp. 1294-1296.)

Absent an evidentiary basis, the court is not required to give CALCRIM No. 522. (People v. Ward (2005) 36 Cal.4th 186, 215 [CALJIC No. 8.73, the predecessor instruction to CALCRIM No. 522].) The only evidence of provocation by Thompson took place during the over-the-fence exchange between him and Sirypangno. However, when Sirypangno, who was obviously agitated by the heated exchange, told Phommachanh about it, Phommachanh did not become agitated. Rather, as related by the testimony of his cousin, Boualouang, Phommachanh told Sirypangno not to worry about it and tried to calm him down. Moreover, Phommachanh left the scene, and, within minutes, returned after receiving a phone call asking him to do so. Upon returning and before getting out of the car, Phommachanh put on a bandana to mask his face. Donning a mask to hide one's identity is consistent with premeditation and deliberation; it is inconsistent with acting rashly. (See People v. Woods, supra, 8 Cal.App.4th at p. 1595 [mask was evidence of planning, showing murder was premeditated and deliberate].) Moreover, we note that when Phommachanh pointed the gun at Thompson, Thompson put his hand up and said "no." When the gun did not fire at first, Phommachanh had the presence of mind to clear an unfired round from the chamber by racking back the slide of the gun and proceed with firing five shots. These actions also were not consistent with acting on the basis of provocation.

Phommachanh has failed to show there was substantial evidence that he decided to kill Thompson in response to the alleged provocation, or that he killed Thompson "while in the grip of passion or any intense emotion" resulting from the alleged provocation. (People v. Brown (1981) 119 Cal.App.3d 116, 136.) The evidences does not support the inference that Phommachanh was overwhelmed with emotion or was provoked by what Thompson, as related by Sirypangno, did. Instead, the evidence supports the inference that Phommachanh, who had a gun in his possession, already had the intent to kill when he returned to the party site. Further, the evidence that he donned a make-shift mask to hide his face supports the inference that he planned and deliberated the murder before getting out of the car upon his return to the scene. In light of these factors, the trial court did not err by failing to instruct with CALCRIM No. 522.²⁶

26 The fact that the trial court instructed on provocation/manslaughter (CALCRIM No. 570) does not change our decision. " 'If the court through an abundance of caution, or neglect or mistake, gives partial instructions . . . when no such instructions are warranted, it should not be ruled as a matter of law that all inquiry into the nature of the evidence on the issue is precluded. . . .' " (People v. Frierson (1979) 25 Cal.3d 142, 157.)

D. Gang Enhancement

Phommachanh, joined by Sirypangno (see fn. 2, ante) contends the stayed 10-year gang enhancement under section 186.22 on the first degree murder conviction should be stricken. The Attorney General acknowledges he is correct. When a defendant is sentenced to a 25-year-to-life term for first degree murder, the 15-year minimum parole eligibility of section 186.22, subdivision (b)(5) applies rather than the enhancement under section 186.22, subdivision (b)(1). (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1007.)

Phommachanh also points out errors in the abstract of judgment. At sentencing, the trial court ordered payment of victim restitution to be "jointly and severally" with each other and each of their codefendants: Rattana; Joyce, and Giraud (see fn. 3, ante). However, the abstract of judgment does not reflect the joint and several liability. The Attorney General agrees the abstract of judgment should be amended to reflect the joint and several liability.²⁷

27 The Attorney General also points out two additional errors in the abstract of judgment.
First, Phommachanh's abstract of judgment shows he was awarded zero actual credits and 1,384 conduct credits, and Sirypangno's abstract of judgment shows he was awarded zero actual credits and 1,380 conduct credits. Phommachanh and Sirypangno were not awarded conduct credits pursuant to section 2933.2. Phommachanh was awarded 1,384 actual credits, and Sirypangno was awarded 1,380 actual credits.
Second, the abstract of judgment for Phommachanh lists the gun enhancement for count 1 as being imposed under section 12022.53, subdivisions (d) and (e)(1). However, the trial court imposed the enhancement under subdivision (d) only.
We order the clerk of the superior court to amend these clerical errors as well. (People v. Mitchell (2001) 26 Cal.4th 181, 185188.)

DISPOSITION

The clerk of the superior court is ordered to amend Phommachanh's abstract of judgment by (1) striking the section 186.22, subdivision (b)(1) gang enhancement on count 1, (2) indicating Phommachanh's liability for restitution payments to the victim's compensation program is joint and several, (3) properly identifying Phommachanh's 1,384 days of credit as actual credit and not conduct credit, and (4) deleting the reference to subdivision (e)(1) of section 12022.53 in his abstract of judgment. The clerk is further ordered to send a copy of Phommachanh's amended abstract of judgment to the Department of Corrections and Rehabilitation.

In all other respects, the judgment against Phommachanh is affirmed.

The clerk of the superior court is ordered to amend Sirypangno's abstract of judgment by (1) striking the section 186.22, subdivision (b)(1) gang enhancement on count 1, (2) indicating Sirypangno's liability for restitution payments to the victim's compensation program is joint and several, and (3) properly identifying Sirypangno's 1,380 days of credit as actual credit and not conduct credit. The clerk is further ordered to send a copy of Sirypangno's amended abstract of judgment to the Department of Corrections and Rehabilitation.

In all other respects, the judgment against Sirypangno is affirmed.

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HUFFMAN, Acting P. J.

WE CONCUR:

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NARES, J.

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McDONALD, J.