Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 74290
Marchiano, P.J.
E.A. appeals from the dispositional order committing him to the Division of Juvenile Facilities (DJF) after he was found to have committed murder (Pen. Code, § 187), with use of a firearm (Pen. Code, § 122022.53, subd. (e)(1)), for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). He contends that: the murder and gang allegation findings were not supported by substantial evidence; lay and expert testimony was erroneously admitted; the DJF commitment was an abuse of discretion; and questioning of witnesses at the dispositional hearing was erroneously restricted. We conclude that these arguments lack merit and affirm the dispositional order.
I. BACKGROUND
A. General
Aide Romero slept in an apartment on Poplar in Redwood City on the morning of July 12, 2005, after using methamphetamine all day the day before. Romero was a Sureño gang associate, and the Poplar apartment was a Sureño gang hangout. She went there with her boyfriend, 20-year-old Faustino Ayala, a Sureño. She was at the apartment around 1:00 p.m. on July 12 when E.A. drove up in a car with D.V., J.O., and J.O.’s brother, who was nicknamed Ojitos. E.A, J.O., and Ojitos were 14 years old; it is unclear from the record whether D.V. was 14 or 15 years old. The car was blue, the Sureño color, and Romero testified that the four youths were Sureño “wannabes” who were trying to get into the gang. E.A. told her that he had just bought the car from a friend for $200, and that it did not work in reverse. The car had to be pushed backward out of the driveway when Ayala drove off in it with the four youths around 2:00 p.m.
Romero testified that before the blue car left someone told her, “we got into it with some Norteños.” She first said that she did not remember who made the statement “because they were talking all at the same time.” She later attributed the statement to E.A., and later said they were “all talking” about having gotten into it with “some chepetes,” a derogatory term for Norteños. Romero testified that she asked E.A., D.V., and J.O. for a ride home, but they said they had to take care of some business, what they called “jale.” E.A. said they wanted to go back to Fairoaks, a Norteño neighborhood two or three miles from Poplar, to take care of some business other people had started. Romero testified that E.A., D.V., J.O., and Ojitos asked Ayala to come with them on this business and said to him, “don’t let us down.” She later said that J.O. was at the car, 15 feet away from the conversation when the “don’t let us down” statement was made, and later said that D.V. might also have been at the car, and later said that she could not remember who had made the statement. Ayala agreed to come along and volunteered to drive.
Elizabeth Casillas was also at the Poplar apartment on July 12, 2005, and saw E.A., D.V., J.O., and Ojitos ride off in a big blue car after it was pushed backward out of the driveway. She heard E.A. and Ojitos talk before they left about going to “kick it,” which meant just hanging out some place.
A neighbor on Poplar was outside his home around 1:30 or 2:00 p.m. on July 12, and noticed a blue car pass by three times in the span of five minutes. There appeared to be only one person in the car when it first passed by. The car was going only 10 miles per hour and the driver was looking on both sides of the street. The car passed by again about a minute later going in the opposite direction, and again three or four minutes later going in the original direction. When the car passed by the third time, the neighbor saw five people inside, one of whom was wearing “a white rag or something on their head.” Seconds later, he heard a shot and screaming from up the street where the car had been headed. He walked out to the front of his yard and saw the tail end of the blue car “swooping around.” He later saw a body in a driveway across the street.
The body was that of 21-year-old Francisco Rodriquez, who resided with his wife Maria and three children in an apartment complex next to Poplar. Rodriquez’s brother-in-law, Richard Padilla, testified that he and Rodriquez were talking with Rodriquez’s coworker Jose Navarette at a carport on Poplar when a car “crept by” on the street. Padilla said that when Rodriquez saw the car pass by he expected trouble. Rodriquez referred to the people in the car as fools and “scraps,” a derogatory term for Sureños, and assumed that “a fight or something” was going to happen. Navarette testified that the car came by again and stopped, and a passenger in the back seat got out with his face and head covered and reached for something by his waist. Rodriquez, Navarette, and Padilla turned and ran, and Rodriguez was killed by a gunshot to the back of the head. A few seconds after the shot was fired, Navarette heard a car door slam and saw the car speed away.
A knife from Rodriquez’s kitchen was found near his body. Maria Rodriguez testified that Rodriguez went into their kitchen a few minutes before the shooting, but she and Padilla denied seeing him with a knife before he was killed. Navarette could not remember Rodriguez doing anything to provoke the occupants of the vehicle, and Padilla denied that any such provocation occurred.
Rodriguez had Norteño gang tattoos, and had been identified by the police as a Norteño gang member when he was arrested in 2001 at a place associated with Norteños. Maria Rodriguez testified that Rodriquez had been a gang member, but that he had promised her before they were married, three and one-half years before he was killed, that he would stop all gang activity. She said that he had kept that promise as far as she knew. She said that Rodriguez rarely wore red, the color identified with Norteños, but when police searched their apartment after the shooting they found that most of his clothes were red. They also found a photo of Rodriguez on the refrigerator wearing a red shirt with a big letter “N” in the middle. Redwood City Police Officer Russell Felker, who investigated the shooting and testified as an expert on gang aspects of the case, opined that Rodriguez was an inactive member of the Norteño gang when he was shot. Felker opined that the small amount of red color in the shoes Rodriguez wore when he was killed would have been sufficient to provoke a violent response from rival Sureño gang members.
Juan Ortega testified that D.V. phoned him at home on the evening of July 12 and asked him to hide something as a favor. Ortega testified that he was a member of the CXLS Sureño gang, and that he had been present when D.V. was jumped in as a member of that gang. Ortega and D.V. arranged to meet near Ortega’s house, and D.V. rode up in the blue car with E.A., Ojitos, and Ayala. When Ortega got in the car, D.V. told him that Ojitos had killed a Norteño, and gave him two guns and some bullets. Several weeks earlier, D.V. had shown the guns to Ortega at D.V.’s home, said that the guns belonged to a friend, and explained that he had the guns for protection from Norteños. Ortega hid the guns in his home, and the guns were recovered by the police in a search the next day. Based on a bullet casing found at the scene of the shooting, one of the guns was determined to be the murder weapon.
On the night of July 12, the police contacted J.O. and D.V. at their homes, they agreed to give statements, and were interviewed at the Redwood City Police Department. Around 2:00 a.m. on the morning of July 13, 2005, E.A., Ojitos, and Ayala were pulled over in the blue car and detained by a Half Moon Bay police officer. Redwood City officers arrived and arrested E.A., Ojitos, and Ayala based on the statements given by J.O., D.V., and others. They were taken to Redwood City Police Department, where E.A. was interviewed.
The statements given by J.O., D.V., and E.A. were admitted into evidence against them in their respective cases.
In a search of the blue car on July 13, police found a blue baseball bat with the letters “SUR” carved into it in the backseat, and a “carpenter’s hull,” [sic] described in the testimony as a metal “stabbing instrument,” on the front passenger door armrest.
Ojitos was charged with murder as an adult. His murder trial and that of Ayala were pending when the case at bench was tried.
Officer Felker had spent the last two and one-half years of his six years on the Redwood City police force on the street crime suppression team, which worked on gang-related matters. He had daily contact with gang members, and had been involved in a few hundred gang-related investigations. He knew about 35 members of the Sureño gang in Redwood City, which is broken down into cliques or subsets called the Carnales Locos Sureños (CXLS), the Barrio Locos Sureños (BLS), the Pine Street Familia Sur (PFS), and the Coastside Locos. He said that the names of the subsets changed over time, but “it’s all the same group.”
Felker called members of the subsets “Redwood City Sureños,” an “umbrella” term for Sureño gang members based in the city, all of whom, according to Felker, “interact with one another freely” and are “loyal to one another within the Sureño framework.” While the terms “RWC Sureños” appeared in gang graffiti, members do not typically claim to be “Redwood City Sureños” or members of particular subsets; they generally identify themselves simply as “Sureño or Sur.” Sureños subsets “ebb and flow,” particularly in a place like Redwood City, where Sureños are greatly outnumbered by rival Norteños and have “no set boundaries.” To increase their numbers and strength, Sureños in Redwood City enlist each other and Sureños from other cities to commit crimes and band against the Norteños.
Felker identified three active members of the Sureños in Redwood City who had been convicted of criminal street gang activity under Penal Code section 186.22, and outlined the circumstances of two of those offenses. On April 20, 2004, three Sureño gang members, Juan Ortiz, Pedro Gonzalez, and Marco Rodriguez exchanged gang insults (“scrap,” “chapete”) with a Norteño in Redwood City, the Norteño attempted to flee, his path was blocked by Gonzalez and Rodriguez, and Ortiz hit him in the leg and back with a baseball bat. Ortiz was convicted of assault (Pen. Code, § 245, subd. (a)(1)) and participation in a gang (Pen. Code, § 186.22, subd. (a)). On July 24, 2004, Juan Romero “approached the victim asking him what he claim[ed], . . . a term of a challenge before [an] assault. The victim said that he didn’t claim and was then . . . chased by Romero, who was brandishing a firearm.” Romero was convicted of making a criminal threat (Pen. Code, § 422) and gang participation (Pen. Code, § 186.22, subd. (a)).
Based on his personal investigations and on police reports, Felker identified the following crimes as primary activities of Sureños in Redwood City: murder (Pen. Code, § 187); attempted murder (Pen. Code, §§ 187, 664); assault with a deadly weapon (Pen. Code, § 245); burglary (Pen. Code, § 460); robbery (Pen. Code, § 211); vehicle theft (Veh. Code, § 10851); terrorist threats (Pen. Code, § 422); witness intimidation (Pen. Code, § 136.1); drug sales (Health & Saf. Code, §§ 11351, 11355, 11378); and vandalism (Pen. Code, § 594). Felker did not have statistics showing the number of times these crimes had been prosecuted. Felker had, however, investigated “hundreds” of incidents of violence between Norteños and Sureños in his six years as a Redwood City police officer, and knew of five or six such incidents when people were killed.
Felker opined that Ayala, Ojitos, E.A., D.V., and J.O. were all active Sureño gang members. He regarded gang associates and wannabes as gang members. “Either you . . . hang around, associate, participate, or you don’t,” he explained, “It’s that simple.” In his experience, people were not allowed to hang out with gang members unless they were members themselves.
In support of his opinion as to E.A., Felker cited incidents in June 2004, March 2005, and April 2005 when E.A. was attacked by, or fought with, Norteños, and a May 2005 letter from the assistant principal at the school where two of the incidents occurred documenting E.A.’s identification with “the blue gang” and “constant” gang-related behavior. Felker’s opinion as to D.V. was based, among other things, on D.V.’s “admitted association” with the Sureño gang, and Ortega’s testimony. As for J.O., he had, in May 2005, been caught writing Sureño graffiti, fought with Norteños, and admitted to police that he was an active Sureño.
Felker testified that, in gang culture, respect is synonymous with fear, and that gang members commit crimes to increase their stature in the gang. “Taking care of business” in the gang context means doing a violent act. Violent crimes committed by gang members benefit the gang by instilling fear within the neighborhood where the gang is active, and showing rival gang members who controls the area. Gang members taking care of business will tell each other if they are carrying a gun.
Felker described the killing of a rival gang member as the “ultimate” means of benefitting the gang. He opined that Rodriguez’s killing was “clearly nothing other than [a] gang-related” crime: an attack on a perceived Norteño rival that was done for the benefit of the Sureños. The calculated nature of the crime was evidenced by the car’s multiple approaches to the scene and the covering Ojitos put on his head.
Felker further opined that the Sureño gang was benefited by the actions of E.A., D.V., and J.O. in connection with the shooting. E.A., D.V., and J.O. provided a show of force that enabled the killing to occur. Gang members initiate confrontations only “when they outnumber somebody.” They have sufficient backup “99 percent of the time,” and would not let one of their own confront multiple perceived gang rivals without sufficient backup or weapons present.
Felker was asked to explain what transpires in a “generic gang-related drive-by shooting.” He said that there would be a designated driver and shooter, and that others in the vehicle would have the role of lookout or backup. Those providing backup would typically carry weapons such as firearms, knives, and baseball bats, and everyone in the car would know of the planned shooting.
B. Additional Background for E.A.
E.A.’s interview in the early morning of July 13, 2005, lasted approximately 70 minutes. The DVD of the interview was played at trial, but the interview was not transcribed. During the interview, E.A. generally refused to provide any information about the shooting. At one point, however, when he was asked whether he cared that someone was dead, he replied, as closely as we can transcribe from the 5:04 a.m. point of the DVD, “That’s his problem. He was looking for trouble. He wanted to be a Norteño.” Shortly thereafter he added, “He was a Norteño looking for trouble. He want[ed] to fight.”
II. DISCUSSION
A. Admissibility of Evidence
(1) Expert Testimony
E.A. argues that portions of Felker’s expert testimony about gang psychology and behavior should have been stricken because the testimony: was prohibited under the reasoning of People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew); was impermissible profile evidence; or lacked sufficient foundation. These arguments are directed primarily against Felker’s testimony about the knowledge and intent of people in the car in a “generic” gang-related drive-by shooting. We will focus exclusively on this aspect of Felker’s testimony because other statements E.A. mentions—gangs members will not attack without sufficient backup or weapons, gang members perpetrate violence for prestige within gang culture, gang members cover their heads when something big is about to happen, etc.—are not even arguably prohibited on the grounds E.A. asserts.
In Killebrew, the defendant, convicted of conspiring to possess a handgun, was alleged to have ridden with gang members in a group of cars, and was linked to guns found in the cars by a gang expert’s opinion that everyone in the cars would have known of the guns and mutually possessed them for protection. (Killebrew, supra, 103 Cal.App.4th at pp. 647, 649-650, 652 & fn. 7.) The opinion conceded that expert testimony was admissible to prove an array of gang-related matters, including “motivation for a particular crime, generally retaliation or intimidation,” and “whether and how a crime was committed to benefit or promote a gang” (id. at p. 657), but ventured that “testimony that a specific individual had specific knowledge or possessed a specific intent” was prohibited (id. at p. 658). The expert in the case could have opined “that oftentimes gang members traveling together may know if one of their group is armed,” but instead “testified to the subjective knowledge and intent of each occupant in each vehicle” “on the night in question.” (Ibid., italics omitted.)
Killebrew was limited and distinguished in People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez). The defendant in Gonzalez, a member of the Lott Stoners 13 gang, was convicted of murdering two men in the territory of a rival gang, the Lopez Maravilla. Most of the witnesses who initially identified the defendant as the killer repudiated their identifications at trial. A gang expert was told to assume that Lot Stoners 13 and Lopez Maravilla members were called to testify in a case involving a Lot Stoners defendant, asked whether such witnesses would be subject to intimidation from members of those gangs, and answered, “ ‘[d]efinitely,’ ” their “ ‘safety would be in great jeopardy.’ ” (Gonzalez, supra, at pp. 944-945.) The defendant argued that this testimony was prohibited by Killebrew, but the court disagreed, holding that Killebrew “merely ‘prohibit[s] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’ ” (Gonzalez, supra, at p. 946.) The expert in Gonzalez “merely answered hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony. . . . The witness did not express an opinion about whether the particular witnesses in this case had been intimidated.” (Id. at pp. 946-947; see also id. at p. 946, fn. 3 [distinguishing between expert testimony about specific and hypothetical persons].)
Felker opined here about what transpires in a hypothetical, generic gang-related drive-by shooting, not about what E.A. was thinking or doing during the killing in this case. Since Felker answered a hypothetical question based on other evidence indicating that what occurred here was in fact a gang-related drive-by shooting, and he did not opine on E.A.’s specific knowledge or intent, his testimony was permitted under Gonzalez and Killebrew. (Gonzalez, supra, 38 Cal.4th at pp. 946-947; see, e.g., People v. Garcia (2007) 153 Cal.App.4th 1499, 1505-1506, 1512-1514 [officer permitted to opine, in response to hypothetical questions based on specific facts of the case, that defendant was an active gang member and possessed a firearm for the benefit of the gang]; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.)
E.A. contends that Felker’s testimony about generic gang-related drive-by shootings was inadmissible profile evidence. “A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) “In profile testimony, the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile.” (People v. Prince (2007) 40 Cal.4th 1179, 1226.) “ ‘Profile evidence’ . . . is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative.” (People v. Smith (2005) 35 Cal.4th 334, 357.) Profile evidence is considered “insufficiently probative” when “the conduct or matter that fits the profile is as consistent with innocence as guilt.” (Id. at p. 358.) In People v. Martinez (1992) 10 Cal.App.4th 1001, 1006, for example, the “clear thrust of the evidence” against a defendant accused of illegally driving a stolen car “was to establish that defendant ‘fit’ a certain ‘profile.’ ” The evidence showed among other things that “the car he was driving was similar to many other stolen vehicles being transported to Central America,” that “his selection of a route (Interstate 10) was similar to that used by many other drivers of stolen vehicles transporting vehicles to that area,” and that “the time of his travel was similar to that of many other drivers of stolen vehicles”—all circumstances as consistent with innocence as guilt. (Ibid.)
The testimony in this case about the roles played by people in the car in a gang-related drive-by shooting was not profile evidence. Felker did not compare E.A.’s behavior to a profile and conclude that he fit the profile. Nor were the circumstances here equally consistent with guilt or innocence. E.A. observes that “there is nothing inherently criminal about being in a car during a shooting,” but the hypothetical involved a gang-related drive-by shooting, where mere presence in the car was potentially very incriminating, unlike facts in a profile, such as driving a particular car on a particular road at a particular time, which may well be entirely innocuous.
E.A. contends that Felker’s testimony about a typical gang-related drive-by shooting lacked an adequate foundation because there was no evidence that he had ever investigated that particular crime. “The qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court. (Huffman v. Lindquist (1951) 37 Cal.2d 465, 476.) That discretion is necessarily broad: ‘The competency of an expert “is in every case a relative one, i.e. relative to the topic about which the person is asked to make his statement.” [Citation.]’ (Huffman v. Lindquist, supra, 37 Cal.2d at pp. 476-477.) Absent a manifest abuse, the court’s determination will not be disturbed on appeal. (People v. Fudge (1994) 7 Cal.4th 1075, 1115; People v. Ashmus (1991) 54 Cal.3d 932, 971.)” (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) Felker testified that as a Redwood City police officer he had investigated hundreds of violent incidents between Norteños and Sureños. The trial court could reasonably decide that this considerable experience qualified Felker to opine about gang-related drive-by shootings. There was no abuse of the court’s broad discretion in the matter.
(2) Romero’s Testimony
E.A. argues that Aide Romero’s testimony about statements made before the shooting by people who drove to the Poplar apartment in the blue car was inadmissible hearsay. At issue are the statements referring to a confrontation with Norteños, about needing to take care of some business, and recruiting Ayala’s assistance. The court denied his motion to strike this testimony, finding that the statements were admissible under the hearsay exceptions for admissions of a party and statements of a coconspirator. We conclude that the statements were party admissions, and need not determine whether the coconspirator exception also applies.
E.A. contends that the statements were not admissible as admissions on his part because it was not established that he made them, and because they were irrelevant in any event. Both of these arguments are untenable.
Romero attributed statements about a confrontation and unfinished business to E.A. She testified: “A. [B]ig Lips [E.A.’s moniker] started saying to us what happened earlier before they got there. Q. Okay. And he was saying that he got into it with some Norteños? A. Yeah. Q. He was saying they were going to go back and do some business with those Norteños? A. Not with the Norteños, but they wanted to go back to Fairoaks. I don’t know if it was in Fairoaks. I don’t know where it is, but they got into it but they said ‘Fairoaks.’ Q. So they were going to go and take care of business that the other people had started? A. Yeah, I don’t know who.” Romero testified that E.A. was among those who were urging Ayala not to let them down. He was one of those “talking like the most” about obtaining Ayala’s assistance.
The court could credit the foregoing testimony even though Romero testified at other points that she could not remember who mentioned the incident with Norteños, talked about going to Fairoaks, or asked Ayala not to let them down. “[I]t is the function of the trial court, not the appellate court, to resolve inconsistencies and contradictions in the testimony of a witness, and the trier of fact may believe and accept a portion of the testimony of a witness and disbelieve the remainder. [Citation.] Such conflicts, even in the testimony of a particular witness, are for the resolution of the trier of fact. [Citations.] It is not for us to say that any conflict should be resolved in defendant’s favor. [Citation.]” (People v. Chavez (1968) 268 Cal.App.2d 381, 383.)
As for the relevance of the statements, E.A. notes that he did not “expressly sa[y] he was planning to commit a crime against Norteños for purposes of retaliation,” and submits that it would not be “reasonable to infer from Romero’s hearsay testimony that [he] and the other boys were impliedly stating that they were going to Fairoaks to retaliate against Norteños for the earlier incident.” However, that inference was entirely plausible in the gang context of this case. The statements in question were relevant because they helped establish a motive for a crime that was otherwise inexplicable.
B. Substantial Evidence
(1) Substantial Evidence Review
E.A. argues that there was insufficient evidence to support the murder and gang enhancement findings. When sufficiency of the evidence is questioned, we “review the whole record . . . to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Id. at p. 576.) The judgment must be affirmed unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [it].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Circumstantial evidence may suffice to provide proof of guilt beyond a reasonable doubt (People v. Bean (1988) 46 Cal.3d 919, 932), and the standards of substantial evidence review are the same in cases in which the People rely mainly on circumstantial evidence (People v. Stanley (1995) 10 Cal.4th 764, 792). The foregoing standards apply in juvenile proceedings (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605), and to gang enhancements (People v. Augborne (2002) 104 Cal.App.4th 362, 371).
(2) Murder
It is not disputed that there was sufficient evidence to convict Ojitos of first degree murder. At issue is E.A.’s liability for the murder as an aider and abettor. “[A]n aider and abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) “[A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 560 (Beeman).) Second, an aider and abettor is guilty not only of the intended crime, but also of “ ‘any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ ” (McCoy, supra, at p. 1117.)
Under the natural and probable consequences doctrine “an aider and abettor is liable vicariously for any crime committed by the perpetrator which is a reasonably foreseeable consequence of the criminal act originally contemplated by the perpetrator and the aider and abettor.” (People v. Woods (1992) 8 Cal.App.4th 1570, 1577.) To hold a defendant liable under the doctrine, the trier of fact must find that the defendant acted with “knowledge of the unlawful purpose of the perpetrator” and with “the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense,” and that the defendant “by act or advice aided, promoted, encouraged or instigated the commission of the target crime.” (People v. Prettyman (1996) 14 Cal.4th 248, 262 (Prettyman).) The trier of fact must also find that “the defendant’s confederate committed an offense other than the target crime,” and that “the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (Ibid., italics & fn. omitted.)
It is not disputed that murder is a natural and probable consequence of an assault with a deadly weapon. (Prettyman, supra, 14 Cal.4th at p. 262 [application of natural and probable consequences doctrine had “most commonly involved situations in which a defendant assisted or encouraged a confederate to commit an assault with a deadly weapon or with potentially deadly force, and the confederate not only assaulted but also murdered the victim”]; see, e.g., People v. Hoang (2006) 145 Cal.App.4th 264, 266-267 [aider and abettor of an assault with a deadly weapon by a gang member was liable for attempted premeditated murder]; People v. Laster (1997) 52 Cal.App.4th 1450, 1464.) Thus, E.A. could be found to have committed first degree murder if he shared Ojitos’s intent to commit that crime (Beeman, supra, 35 Cal.3d at p. 560), or if he merely intended to facilitate an assault with a firearm by Ojitos (Prettyman, supra, at p. 262). The prosecution proceeded under both theories in this case, but we need only address the assault theory to uphold the jurisdictional finding.
The evidence was sufficient here to support findings that E.A. knew of Ojitos’s intention to assault Rodriguez with a firearm, and intended to facilitate the commission of that assault. Viewed in the light most favorable to respondent, the evidence showed:
Shortly before the shooting occurred, E.A. and four other Sureños set out in a blue car E.A. supplied to take care of some unfinished business with Norteños, following an incident with members of that gang. Although it appeared from Romero’s testimony that E.A. was the primary instigator, she indicated at points in her testimony that Ojitos, D.V., and J.O., as well as E.A., talked about the confrontation and recruited Ayala to help them with their business. There were four weapons in the car, two guns supplied by D.V., a baseball bat, and a stabbing instrument. Thus, E.A., D.V., and J.O. were quite possibly armed with a weapon when the shooting occurred. Witnesses with Rodriguez denied that he did anything to provoke the shooting, but it was possible to find otherwise in view of the evidence that Rodriguez had called the occupants of the car “scraps,” assumed a fight was brewing, and armed himself with a knife, before he was killed. The car did not stop next to Rodriguez on the spur of the moment; it made one or two prior passes, and one of the occupants had his head covered during the final approach. Fourteen-year-old Ojitos got out of the car alone to approach three young adults, one of whom, an apparent rival gang member, was holding a knife.
E.A. observes that “mere presence at the scene of a crime is insufficient to establish that an accused is an aider or abettor” (In re David K. (1978) 79 Cal.App.3d 992, 998), and submits that there was no substantial evidence from which to find that he knew Ojitos had a gun, or intended to facilitate an assault with that deadly weapon (see People v. Hickles (1997) 56 Cal.App.4th 1183, 1197 [absent that knowledge and intent, defendant might have merely aided and abetted a simple assault or an argument]). But while it might have been possible to find from the foregoing evidence that E.A. had no idea that Ojitos was armed, and no intention to encourage or promote the shooting, the circumstances suggested otherwise. E.A. and the others were armed and spoiling for a confrontation and Rodriguez provided a suitable target. E.A. supplied a Sureño blue car, and as reflected in his statement to the police, they did not need to drive very far to find a “Norteño looking for trouble.” Ojitos disguised himself before the shooting, and would have faced superior force had he gotten out of the car without a gun. It thus appears unlikely that those in the car would not have realized that Ojitos had the gun, or that the shooting was a spontaneous act on the part of Ojitos, unplanned and unanticipated by the others. E.A. maintains that Romero’s testimony was not credible, and that the car’s movements before the shooting were not particularly probative because the evidence of them was somewhat conflicting, but those arguments about credibility and the weight of evidence were for the trier of fact. As the prosecutor pointed out below, the People had a strong case against E.A. for aiding and abetting a murder entirely apart from Felker’s testimony.
Felker’s expert opinions strengthened the inferences of guilty knowledge and intent by putting the evidence in a gang context. Felker confirmed that “business” for a gang means violence. Wannabes like E.A. are motivated to commit crimes to gain stature in the gang, and the ultimate crime is the killing of a rival gang member. In a typical gang-related drive-by shooting passengers in the car would not just be along for the ride, they would serve as backups or lookouts. Gang members do not perpetrate assaults unless they possess superior force. E.A., D.V., and J.O. furnished a show of force that enabled the assault here. Felker’s testimony, as the prosecutor put it, “tie[d] everything together.”
E.A. submits that the result here should be the same as that reached in Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337 (Mitchell). Defendant Mitchell was a passenger with fellow gang members in a car that ran over and killed Jerry “Judabean” Knox, a rival gang member. Judabean had been shot three times on two separate occasions by members of Mitchell’s gang, but the evidence showed that he was killed by the car and not by the gunshots. The second shooting left Judabean lying in the street, and the car was speeding away from the scene when it made a U-turn and drove over him. The issue was whether Mitchell could be found to have “instigated, encouraged or assisted the driver in crushing Judabean,” and thereby aided and abetted a murder. (Id. at p. 1342.) The court found “no such evidence,” noting: “There is no proof that the vehicle that killed Judabean was owned or provided by Mitchell for the purpose of doing the running over; there is no proof that Mitchell said anything to the driver of the vehicle in the minutes between the shooting and the fatal U-turn; in short, there is nothing at all to suggest that Mitchell helped bring about Judabean’s death, except perhaps by adding weight to the car that ran over Judabean’s body.” (Ibid.) The state’s argument to the contrary “smack[ed] of guilt by association.” (Ibid.)
Mitchell was overruled on another ground in Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242, 1248.
The decision in Mitchell is questionable and the case is distinguishable. As the dissent pointed out, the evidence supported an inference that Mitchell wanted to kill Judabean. (Mitchell, supra, 107 F.3d at p. 1343 (dis. opn. of Pregerson, J.).) That evidence included a fistfight between the two men, and Mitchell’s involvement in the shootings of Judabean, in the hours before the killing. “A rational jury could infer from th[e] evidence of Mitchell’s presence in the car and his animus toward [Judabean] that Mitchell encouraged the driver of the car to make a sudden U-turn and run over [Judabean].” (Ibid.) In any event, E.A. was not a passenger in a car that was speeding away from a crime scene; he was riding in one that was cruising slowly on the lookout for a confrontation. Moreover, E.A. owned and provided the car involved in the crime.
The trial court had substantial evidence from which to find that E.A. committed murder.
(3) Gang Enhancement
Penal Code section 186.22, subdivision (b) provides an enhancement 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. . . .” A “criminal street gang” is “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [specified predicate offenses, including murder, assault with a deadly weapon, and criminal threats (Pen. Code, § 186.22, subd. (e)(1), (3) & (24)], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (f).) Proof of two or more predicate offenses is required to establish a “pattern” of criminal activity. (Pen. Code, § 186.22, subd. (e).)
“The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) The circumstances of the charged offense can be considered in determining a gang’s primary activities. (Ibid.) Those activities can be established with evidence that gang members have consistently and repeatedly committed predicate offenses, or through expert testimony based on conversations with the members, investigations of crimes committed by the members, and information received from law enforcement personnel. (Id. at p. 324.)
Felker testified that criminal street gangs benefit when their members commit violent crimes because the crimes generate fear, which members consider synonymous with respect in the community, and signal control of an area to rival gang members. He opined that the murder in this case was committed for the benefit of the Sureño gang in Redwood City; as he put it, the murder was “clearly nothing other than . . . gang related”—no other motive was apparent. As set forth in the preceding section, Felker’s testimony and other evidence showed that the murder was committed in association with the gang, with the specific intent to promote and assist criminal conduct by gang members. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1332, citing People v. Morales (2003) 112 Cal.App.4th 1176, 1179, 1198 [commission of charged crimes with fellow gang members is sufficient to establish requisite association and assistance].) The gang enhancement finding was thus supported by substantial evidence.
E.A. contends that the evidence was insufficient to prove the existence of a criminal street gang whose primary activities were the commission of offenses enumerated in the statute. His first argument in this regard is that while Felker attributed criminal activities to the Sureños of Redwood City, his testimony did not establish that any such gang actually existed. Felker said that Sureños in Redwood City belonged to shifting subsets, but were all part of one group who interacted freely with each other and were loyal to each other as fellow Sureños. Similar testimony was deemed sufficient in In re Jose P. (2003) 106 Cal.App.4th 458, 463, where the gang expert said that subgroups within the Norteño gang in Salinas were “loyal to one another and to the larger Norteño street gang.” (Id. at p. 463.) This testimony about the Norteños in Salinas “establish[ed] that Norteño was a . . . gang” within the meaning of the Penal Code section 186.22. (Id. at p. 467.) The existence of a Sureños gang in Redwood City was likewise established here.
E.A. argues that Felker’s testimony was not sufficient to prove the “primary activity” element of the statute because it was “almost entirely conclusory,” and thus allegedly lacked an adequate foundation. E.A. likens the situation here to the one in In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612 (Alexander L.), where no evidence was elicited as to how the gang expert had obtained information about the predicate offenses he identified. However, Felker stated that his opinion about the predicate offenses was based on his daily contacts with gang members, his investigations of hundreds of gang cases, and reports he received from other police officers— sources of information that provided an adequate foundation for his opinion under Sengpadychith, supra, 26 Cal.4th at page 324.
E.A. contends that Felker did not establish consistent and repeated commission of the predicate offenses he identified (Sengpadychith, supra, 26 Cal.4th at p. 324) because he had no statistics showing their frequency. He again compares Felker’s testimony to that of the expert in Alexander L., supra, 149 Cal.App.4th at page 614, footnote 5, who identified only two assault convictions against the 105-member gang in that case. Again, however, the case at bench is distinguishable. Felker’s testimony that the 35-plus Sureños in Redwood City had been involved in hundreds of violent incidents with Norteños over a six-year period supported a finding of consistent and repeated criminal activity for purposes of the gang statute.
In sum, E.A.’s arguments against the gang enhancement finding are unavailing.
C. Dispositional Issues
(1) Record
The probation department disposition report for E.A. recommended that he be committed to the DJF. Given the gravity of the offense, in which “no value [was] placed on a human life,” the deputy probation officer who authored the report “believe[d that] the only recommendation to protect the community as well as facilitate [E.A.’s] rehabilitation” was a DJF commitment. The probation officer consulted several supervisors about the case and all of them agreed with the recommendation. The report stated that E.A. had never acknowledged his gang membership, and “[did] not appear . . . to realize how he and the companions have affected the victim’s family for the rest of their lives.” The report noted that E.A. was not in the country legally, and faced possible deportation upon his release from custody.
The dispositional hearing for E.A., D.V., and J.O. was held over the course of four days in August and September of 2007. Group supervisors at the county juvenile hall testified that E.A. had behaved well during his two years there. He had taken advantage of the hall’s educational opportunities and participated in all of the programs offered. E.A. had “grown up in all aspects of his life,” expressed an interest in college, and had the potential to lead a positive, law abiding life. However, E.A. could not be kept beyond the age of 18 at the juvenile hall, where stays of more than 30 days were considered long-term placements.
The principal witnesses at the dispositional hearing were Sandra Tellers, who testified as an expert on juvenile dispositions and the DJF, and DJF employee Eleanor Silva, also an expert on the DJF. Tellers prepared a disposition report for D.V., recommending that he be retained at juvenile hall until he reached age 19, and then referred for deportation. Tellers testified that violence at the DJF was endemic, citing a report that 4,671 assaults occurred there during a one-year period from 2005 to 2006. She said that almost all of the youths at the DJF were affiliated with gangs, and predicted that D.V. would be targeted as someone involved in the killing of a Norteño, that he would have to fight, and that he would need to band with Sureños for protection. Given those prospects, and Tellers’s belief that D.V.’s greatest rehabilitative need was to break free from the influence of gangs, Tellers opined that the DJF was “probably the worst place to put him because it’s like putting the frying pan to the fire. He’s going to be surrounded by gangs in a place like this. And if he is susceptible to gangs, that’s not where he should go.”
Tellers expressed similar concerns about E.A. She had interviewed E.A. as well as D.V., and did not “consider them very sophisticated, criminally entrenched significant gang members.” Tellers initially testified that her opinion as to E.A.’s disposition was the same as that for D.V., but later said that she would not have a recommendation for E.A. until she conducted further investigation and prepared a report for him. She said that she planned to write a report for E.A., but there is no such report in the record.
Silva, who had worked for the DJF for 21 years, opined that E.A. would benefit from the DJF’s programs. Silva testified that the DJF develops an individual treatment program for each youth committed there. All youths are enrolled in a core treatment program covering topics such as “victim awareness,” “values,” “how to handle difficult feelings,” and “maintaining positive change.” The DJF offers accredited high school classes, college correspondence courses, vocational training, and postparole services. The DJF has jurisdiction over youths, and can hold them accountable for their actions, until age 25.
Silva testified that the DJF has no tolerance for gang behavior and is proactive with gang matters. The DJF has institutional and living-unit gang coordinators at all of its facilities. She said that “[i]nitially when the youth come in, we have a group called ‘Gangs the Choice is Yours’ which is a gang awareness program in trying to educate the youth and deter them from gangs. We also work with an agency called Project Impact who comes into the facilities and leads gang awareness or deterrence groups.” She acknowledged that many of the youths committed to the DJF have been involved with gangs, but denied that youths are invariably aligned with gangs inside the DJF. She said that the DJF has “numerous kids who are not gang affiliated and do just fine,” and denied that youths generally need to fight when they arrive at the DJF. The DJF has a behavior treatment program for youths who act out violently, and if a youth who renounces gangs feels threatened, he or she can be moved to a safer living unit or facility.
Silva said that the DJF disputed whether the 4,671 acts of violence that reportedly occurred in a year at the DJF were properly defined and correctly counted. She conceded that violence had been a problem at the DJF, but opined that the violence was abating. Her opinion was based on incident reports, conversations with DJF personnel, and regular tours of the facilities, where she found “[t]he climate and the culture . . . much . . . calmer.” She said that the number of youths at the DJF had declined from a peak of 10,000 to about 2,500, and attributed the reduced violence to “[l]ess youth and with less youth having more staff. More staff interactions. More programs being offered. Keeping the youth busy. . . . [L]iving unit populations are averaging 36 which causes less tension rather than the 50 or even 70 that we were up to several years back. I think it’s a . . . calmer setting for the youth.”
The choice for the court was between a DJF commitment, where E.A. could be held until age 25, or a juvenile hall placement where he would be released at age 19. The deputy district attorney advanced separate arguments concerning E.A., D.V., and J.O., and submitted with respect to E.A. that the court could not be sure that his rehabilitation would be completed by age 19. E.A.’s counsel acknowledged that “opposing viewpoints” had been presented on the “overall picture of the [DJF].” Counsel conceded: “It would be easy to say this is a murder. This is serious. These youngsters need to be locked up for a long time.” But the court had “the opportunity to take a bold step and do what is right for these youngsters, what would be right for society,” and decline to commit them to the DJF on the ground that probable benefit from the commitment had not been shown.
The court found that the minors needed to be held accountable for the gravity of their offenses and failure to accept responsibility for their acts, and determined that a juvenile hall placement would be “inadequate” under the circumstances. The court found that the minors would have the opportunity at the DJF to distance themselves from gangs, and that they would benefit from the DJF’s educational, vocational, and counseling programs.
(2) Abuse of Discretion
A commitment decision is reviewed only for abuse of discretion. (In re Asean D. (1993) 14 Cal.App.4th 467, 473 (Asean D.).) “ ‘An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.’ ” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) “[A] commitment to the [DJF] may be made in the first instance, without previous resort to less restrictive placements” (Asean D., supra, 14 Cal.App.4th at p. 473), but “there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJF] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396). E.A. contends that such evidence was lacking here.
E.A. argues that probable benefit from a DJF commitment was not established because the evidence showed that DJF lacked a “meaningful gang diversion program.” Silva testified that the DJF has a gang deterrence program for youths when they are first committed, and gang deterrence programs thereafter conducted by an outside organization. Whether those programs were sufficiently “meaningful” as to be likely to benefit E.A. was a judgment call for the trial court. The same is true of the educational opportunities and counseling services provided by the DJF. It was for the trial court to determine whether such services were, as E.A. submits, inadequate, or whether E.A. would probably benefit from them. E.A. cites Tellers’s opinions that he would need to associate with a gang to survive in the DJF, and that he would be unlikely to benefit from a commitment there; Silva opined to the contrary. As E.A.’s trial counsel stated, the expert opinions were in sharp contrast. E.A. submits that Tellers’s opinions were more credible, but that was for the trial court to decide.
E.A.’s arguments with respect to probable benefit at the DJF ignore the gravity of his offense, which by itself may provide substantial justification for a commitment there. (See In re Robert H. (2002) 96 Cal.App.4th 1317, 1330 [gravity of offense is a proper consideration at disposition]; Asean D., supra, 14 Cal.App.4th at p. 473 [DJF commitment supported inter alia by viciousness of attack]; In re George M. (1993) 14 Cal.App.4th 376, 380 [commitment supported inter alia by seriousness of offense].) Rehabilitating a minor includes holding him accountable for his actions. (Asean D., supra, at p. 473; Welf. & Inst. Code, § 202.) The trial court could reasonably find, in light of Silva’s testimony and the need to hold E.A. accountable for the murder he committed, that a DJF commitment would benefit him and further his rehabilitation.
E.A. argues that a juvenile hall commitment was not shown to be inadequate, but it was undisputed he could not be held there after age 18. Even if the juvenile hall’s services were superior to those of the DJF, they would terminate far sooner. The court could reasonably find that E.A. needed more rehabilitation than the juvenile hall could provide.
(3) Farrell Litigation
E.A. maintains that the court erred in prohibiting questions to the expert witnesses about information generated during the course of Farrell v. Allen (Super. Ct. Alameda County, 2004, No. RG 03079344) (Farrell), a much-publicized taxpayer’s action challenging allegedly illegal policies, procedures, and practices at the DJF.
When Tellers was asked during her direct examination whether the DJF was operating under a consent decree, the prosecutor objected that “[a]ny discussion of disposition of a lawsuit is inadmissible under Evidence Code section 1151 [subsequent remedial measures inadmissible to prove negligence or culpability] and 1152 [limiting admissibility of offers to compromise],” and the objection was sustained. When Tellers was asked whether the DJF’s progress in instituting reforms was being monitored, the prosecutor objected on the same grounds, stating, “Counsel can enquire as to the present condition of the [DJF] and this witness’s opinion of it. But what is happening in an unrelated proceeding or an attempt to [a]meliorate something is simply inadmissible . . . .” The objection was again sustained. After further discussion of the evidentiary issue, the court stated, “I will reaffirm my ruling and I think what is relevant is the current conditions of the [DJF] anyway, not past shortcomings.”
The same objection was made when Silva was asked about a March 31, 2006, report prepared by DJF consultants, which described the DJF as “a system that is broken almost everywhere.” Silva indicated that the report was prepared for purposes of the Farrell litigation. During the ensuing discussion, the prosecutor stated that the report “does not reflect the current state of affairs at [DJF]. It was . . . published in March of 2006. . . . When our expert has been testifying, her testimony has been focused on the current state of affairs. The current status of safety. The current status of programs at [DJF]. [¶] And this report is not relevant regarding the current state of affairs.” The court sustained the objection.
California Department of Corrections and Rehabilitation Division of Juvenile Justice (Mar. 31, 2006) Safety and Welfare Plan, Implementing Reform in California [as of Mar. 30, 2009].
The parties renew on appeal their arguments about the admissibility of matters relating to the Farrell litigation under Evidence Code sections 1151 and 1152, but the debate is misplaced. At a dispositional hearing, the court “shall receive in evidence the social study of the minor made by the probation officer and any other relevant and material evidence that may be offered . . . .” (Welf. & Inst. Code, § 706; see also Welf. & Inst. Code, § 725.5 [court shall consider “relevant and material evidence” in making disposition]; compare Welf. & Inst. Code, § 701 [admission of evidence at jurisdictional hearing “shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision”].) The juvenile court is thus authorized by statute to “receive and consider otherwise inadmissible evidence at the disposition hearing so long as it is relevant and material to the disposition issue.” (In re Michael V. (1986) 178 Cal.App.3d 159, 170; see also In re Vincent G. (2008) 162 Cal.App.4th 238, 242-244.) Therefore, the issue is not whether the evidence in question was admissible under Evidence Code sections 1151 and 1152, it is whether the evidence was “relevant and material.”
The trial court has wide discretion in determining whether evidence is relevant and material (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167; People v. MacArthur (1954) 125 Cal.App.2d 212, 219), and we find no abuse of that discretion here. The court’s observation that current conditions, not past shortcomings, at the DJF were at issue indicates that it found the evidence in question immaterial. This finding was reasonable because the evidence was all somewhat remote in time. Accordingly, the court did not err in prohibiting the questions relating to the Farrell litigation.
Any error on the point was harmless in any event. The parties were permitted to question the experts at length, and were able to flesh out their opinions and the reasons for them. E.A. was by no means denied “a meaningful opportunity to present a complete defense,” as he claims. As E.A.’s trial counsel effectively acknowledged when it urged the court to take the “bold step” of placing him at juvenile hall, the odds were stacked against that outcome by virtue of the gravity of the offense. It is not reasonably probable that the result would have been different if matters pertaining to the Farrell litigation had been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. CONCLUSION
The dispositional order is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.