Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 74438
Marchiano, P.J.
J.O. appeals from the dispositional order committing him to the Division of Juvenile Facilities 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)). J.O. contends that the murder and gang allegation findings were not supported by substantial evidence, and that his statement to the police was erroneously admitted into evidence. 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 J.O.
In his police interview, J.O. indicated that he was riding in the blue car with E.A., D.V., Ojitos, and a driver he did not know when five big Norteños came out to the street from an apartment complex on Poplar. He said that the shooting occurred when they passed by the apartments a second time; at that point, the Norteños said they “were going to throw something,” and one of the Norteños was armed with a knife. He denied knowing there was a gun in the car before the shooting, and seeing who got out of the car and fired the gun. He heard the shot, but was looking away and did not see the shooting. They drove to a park after the shooting, and did not talk about what happened. He said, “Why were we going to talk about it? We don’t even know him.” He agreed that what happened was gang related, and said that he felt bad about the victim’s children.
Handwritten notes found in a pocket of the pants J.O. wore on the day of the shooting were translated into English and introduced into evidence against him. The following passages, which refer to J.O.’s moniker, Cuervo, and the number 13, which is associated with Sureños, exemplify the tenor of the writings: “Mexican by birth/I’m the Cuervo introducing myself/This new sound Brown Pride/I represent I came to rap and my presence will be felt . . . . What’s up homeboy this is the Cuervo Loco/Here again from the SUR 13 I represent/ . . . with my gun and my/Machete with these weapons/I fight with these fuckin’ Chapetes that don’t respect me . . . Chepete, don’t even confront me/Because I’ll take my gun out on you/One shot in the forehead/And you will be gone if you don’t behave/And you will end up dead for sure.”
II. Discussion
A. Admissibility of Evidence
J.O. contends that the court erred in denying his motion to exclude the DVD of his statement to the police, brought on the ground that the statement was involuntary. Use of an involuntary confession as evidence violates the defendant’s state and federal rights to due process. (In re Shawn D. (1993) 20 Cal.App.4th 200, 208.) A confession is involuntary if it appears in light of the totality of the circumstances that the defendant’s choice to confess “was not ‘essentially free’ because his will was overborne.” (People v. Memro (1995) 11 Cal.4th 786, 827.) The confession or admission must be shown to be voluntary by a preponderance of the evidence. (People v. Markham (1989) 49 Cal.3d 63, 71.) The issue is determined on the record as a whole, taking into account the character of the accused and the details of the interrogation. (People v. Vasila (1995) 38 Cal.App.4th 865, 873 (Vasila).) The determination of voluntariness is subject to our independent review. (Ibid.) If a confession admitted into evidence is found to have been involuntary, the error is prejudicial unless it is harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 510.)
The interview was conducted in three phases from approximately 11:00 p.m. on July 12 to approximately 1:45 a.m. on July 13. Officers left the interview room for about 10 minutes between the first and second stages of the interview, and for about 15 minutes between the second and third stages.
J.O. waived his Miranda rights, but was almost entirely uncooperative during the first phase of the interview. He initially stated that he had been home all day on the day of the shooting, but after the officers told him among other things that he was lying to them, that he was facing murder charges, and that everyone was “pointing the finger at [him],” he eventually said he had gone to Half Moon Bay. As J.O. continued to deny any involvement in the shooting, the officers said, among other things: “I know you were on Poplar. I know you were in that blue car. I know who you were in that blue car with. Okay? It’s not a big secret. Okay? It’s out. Everybody’s told it already”; “You can’t get in trouble for being there but you are getting in trouble for lying to us, okay? That’s the only part that’s gonna get you in trouble is the lying”; “You were at the wrong place at the wrong time. . . . As I said before, you’re not gonna get in trouble for being there.”
At the beginning of the second portion of the interview, the officers stated, “[E]verybody’s saying to us . . . [J.O.] is the one, man, he’s the one that shot that dude.” J.O. replied, “What do you mean? I want to listen to them say that. I don’t believe nothing.” The officers responded, “[W]e’re not going to start giving you names of who said what,” and offered J.O. a chance to “start all over” and tell the truth. The officers then addressed J.O. at some length, stating that he had been placed at a murder scene where the victim died “right in his mother’s hands while she screamed and his wife sat there and watched. Now he’s got babies. They’re gonna go without a father for the rest of their life.” The officers told J.O. that they were not trying to trick him, but rather to help him so that he would not “have to go to jail for something [he] didn’t do.” They told him, “we’re your voice. When we go into court and say the only thing he kept saying is, ‘I don’t know. I don’t know.’ You didn’t speak up for yourself. They’re just going to throw you in Juvie.” The officers concluded by saying, “You’re gonna have to trust somebody to speak up for you,” and “[Y]ou’re gonna need to tell us what happened.” At that point, J.O. responded, “Just because I was in the car, I didn’t, didn’t see.”
J.O. went on during the second portion of the interview to admit further facts about the incident, which we have recounted in the background section above. Shortly after the breakthrough admission that he was in the car, he identified the car’s other occupants, and said that the car had stopped in front of an apartment building. After an interval of further questioning, he began to describe the confrontation with the Norteños. During that interval, after J.O. repeatedly denied knowing who got out of the car, the officers told him, “Yeah, you do know. Look at me. You need to start being a man. Stop trying to be a little punk. Look at me. Can’t you look me in the eye? Why not? Yeah, because you’re lying that’s why. Because you can’t look me in the eye like a man.” Shortly thereafter, J.O. asked when he was going to get to go home. The officers replied that he was not going to be released because he was obstructing justice, and because it would be “crazy” to “let some guy who was at a murder scene, who’s not talking just walk out and go home.” The officers asked J.O. whether not talking was “really worth the rest of your life in prison,” but he continued to deny knowing who got out of the car or seeing the shooting. After further unproductive questioning, punctuated by an officer comment that “[I]f you don’t want to tell me, just tell me, ‘Hey, man, I’d rather not tell you.’ You know what I’m saying? That’s cool. I can live with that,” J.O. made his first mention of Norteños, and then went on to furnish some details of the confrontation.
Early in the third portion of the interview, after J.O. declined to indentify anyone pictured in photos he was shown, he was told, “[Y]ou’re going to be charged with murder. You understand that? A gang murder can carry a sentence of 25 years to life.” When J.O. was evasive about where they had driven after the shooting, the officers said, “These details are very important. This is gonna . . . make the world of difference to you when I have to go in front of a probation officer or the juvenile judge and say, ‘Hey, I asked him and he told me.’ I’d like to be able to say that. I’d like to be able to help you by being able to tell the truth when I’m on the stand. That’s why I’m asking for your help here. You got to think about your future here now, man. It’s, it’s not looking good. It’s not. You’re in a lot of trouble. And the only thing that’s gonna save you is telling the truth. . . .” J.O. then said that they drove to a park, where they stayed for about three hours. J.O. denied knowing what happened to the gun, and provided little further inculpatory information during the third part of the interview.
J.O. contends that his admissions in the interview were coerced because they were the products of deception, or express or implied promises of benefit or leniency, by the officers. Promises of benefit or leniency can render a confession involuntary if they are the “motivating cause” of the defendant’s admissions (People v. Williams (1997) 16 Cal.4th 635, 661; see also People v. Cahill (1994) 22 Cal.App.4th 296, 316 [promises were “dominant focus” of the interrogation]), but we find no such promises here. The officers merely told J.O. that they could help him if he told the truth. Here, as in Vasila, supra, 38 Cal.App.4th at page 874, J.O. “was repeatedly encouraged by the investigators to tell the truth and was given to understand that a truthful statement would be to his advantage. This type of encouragement is permissible.” (See People v. Andersen (1980) 101 Cal.App.3d 563, 578 [“admonitions to tell the truth do not amount to coercion”].)
The officers did employ some deception in the first phase of the interview, when they told J.O. that they had spoken to his brother Ojitos, and they stated or implied that everyone involved in the incident was saying that he was present and perhaps the shooter. While the officers had information placing J.O. at the scene of the crime, they admitted to J.O., after he acknowledged being in the car, that they were still looking for Ojitos and thought that Ojitos was the shooter. However, a confession obtained through deception is admissible unless the subterfuge is likely to produce an untrue statement (People v. Felix (1977) 72 Cal.App.3d 879, 886), and the officers’ exaggeration of incriminating evidence was not coercive because it was unlikely to produce a false admission (see People v. Chutan (1999) 72 Cal.App.4th 1276, 1280-1281 [citing numerous cases].) J.O. notes that he was assured that he could not get into trouble for being at the scene of the shooting, but while those assurances were potentially misleading, they were legally correct. As J.O. himself points out in arguing that the evidence was insufficient to find that he had committed murder, aiding and abetting requires more than mere presence at the scene.
J.O. observes that he was a 14-year old without any prior sustained offenses at the time of the interview, and that he was subjected to some forceful questioning. However, “harsh questioning” does not necessarily “rise to the level of psychological coercion.” (People v. Boyde (1988) 46 Cal.3d 212, 242; see In re Joe R. (1980) 27 Cal.3d 496, 515 [“loud, aggressive accusations of lying” did not “amount[] to coercive threats”].) Although J.O. was young, this case was not his first contact with law enforcement. Officer Felker’s testimony indicated that, two months before his interview here, J.O. had been questioned by the police about gang activity. The interview here lasted less than three hours, and J.O. was offered food and drink before the last hour of questioning. J.O. was “not worn down by a lengthy interrogation or deprived of human comforts or necessities. . . . He did not complain about a lack of sleep or food, or suffer any physical ailments.” (People v. DePriest (2007) 42 Cal.4th 1, 35.) He remained recalcitrant throughout the interview, referring toward the end, for example, to “other liar cops” and telling the officers, when asked about his gang affiliation, “I don’t claim shit.” Based on a review of the totality of the circumstances, including the videotape of the interview, we conclude that J.O.’s free will was not overborne, that his admissions were not coerced, and that his motion to exclude them was properly denied.
B. Substantial Evidence
(1) Substantial Evidence Review
J.O. 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 J.O.’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, J.O. 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 J.O. 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, J.O. 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. J.O. confirmed in his statement that the occupants of the car were threatened by Norteños, one of whom was armed with a knife. The car did not stop next to Rodriguez on the spur of the moment; it made one or two prior passes—another fact confirmed in J.O.’s statement—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.
J.O. observes that mere presence at the scene of a crime is insufficient to establish liability on an aider and abettor theory (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 J.O. had no idea that Ojitos was armed, and no intention to encourage or promote the shooting, the circumstances suggested otherwise. J.O. and the others were armed and spoiling for a confrontation and Rodriguez provided a suitable target. 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. As the prosecutor pointed out below, the People had a strong case against J.O. 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 J.O. 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.”
The court could find from the evidence that J.O. was involved in the planning of the assault, and contributed to the force that enabled it to occur. The writings found in J.O.’s pocket on the day of the killing, in which he warned that he would shoot and kill a Norteño who confronted him, provided further, powerful evidence of his guilty intent.
The finding that J.O. committed murder was supported by substantial evidence.
(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. . . .” 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. Indeed, J.O. conceded in his statement that the incident was gang related.
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.
J.O. 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 J.O.’s behavior to a profile and conclude that he fit the profile. Nor were the circumstances here equally consistent with guilt or innocence. 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.
J.O. contends that Felker improperly testified about his mental state, but Felker opined about what transpires in a hypothetical, generic gang-related drive-by shooting, not about what J.O. was thinking or doing during the killing in this case. Felker properly answered a hypothetical question based on other evidence indicating that what occurred here was in fact a gang-related drive-by shooting, and did not impermissibly opine on J.O.’s specific knowledge or intent. (People v. Gonzalez (2006) 38 Cal.4th 932, 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.)
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.