Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. FF408669
Premo, J.
A jury convicted defendant Anthony S. Aguilera of (1) attempted premeditated murder and shooting at an occupied motor vehicle--victim Baldwin (counts 1 & 2), (2) assault with a deadly weapon--victim Mendez (count 3), (3) assault with a deadly weapon--victim Hernandez (count 4), and (4) attempted murder and reckless driving away from a peace officer--victim Bargar (counts 5 & 6). It also found true special allegations that defendant had committed (1) counts 1 and 2 for the benefit of a criminal street gang--five-year sentence enhancements, (2) counts 1 and 2 by discharging a firearm causing injury--25-year-to-life sentence enhancements, and (3) counts 3, 4, and 5 by personally inflicting great bodily injury--three-year sentence enhancements. Thereafter, defendant admitted to the trial court having suffered one prior juvenile conviction for purposes of the Three Strikes law. Upon defendant’s motion, the trial court struck the prior for purposes of counts 3 through 6 but doubled the base middle term for counts 1 and 2 pursuant to the Three Strikes law. On appeal, defendant contends that (1) the trial court erred by denying his pretrial motion to bifurcate trial of the criminal-street-gang allegations, (2) no substantial evidence supports the findings on the criminal-street-gang allegations and the dependent firearm allegations, (3) no substantial evidence supports the count-5 conviction, (4) the prosecutor engaged in misconduct during argument, and (5) the trial court transgressed his right to jury trial by using his juvenile conviction to double the base terms of counts 1 and 2. We disagree and affirm the judgment.
BACKGROUND FOR COUNTS 1 AND 2
Monalisa Smythe was driving Dolores Zamaripa’s Thunderbird with defendant as her front-seat passenger and Daniel Zuniga as her rear-seat passenger. Defendant and Zuniga had been friends since attending elementary school. When a white Bronco driven by Dustin Baldwin with passengers Linda Medina and Amy Silva came into view, defendant asked Smythe whether the driver was Baldwin. Smythe affirmed that it was, and defendant instructed Smythe to follow Baldwin. Smythe followed Baldwin and eventually maneuvered next to him. Defendant asked Baldwin whether the two could speak, and Baldwin agreed. Smythe then followed Baldwin into a parking lot. Defendant retrieved a gun from under the seat and exited the car accompanied by Zuniga. Defendant and Zuniga approached the Bronco. Baldwin tried to drive away but the Thunderbird moved and blocked his path. Defendant then pointed the gun at Baldwin and shot him in the arm and leg.
Baldwin testified and denied knowing defendant. He admitted that the front-seat passenger in the Thunderbird had exited the car with a gun and shot him but denied knowing the shooter’s identity. He conceded that he would “be labeled a snitch” if he identified the shooter.
Medina testified and affirmed that the front-seat passenger had pointed and shot a gun at the Bronco.
Gang expert Gilroy Police Officer Joseph Deras opined that defendant, Zuniga, and Baldwin were members of the Norteno criminal street gang, which was involved in robberies, auto theft, burglaries, narcotics, and homicides. He testified about Norteno members Paul Zapata and Robert Pena who had suffered prior convictions for murder and robbery. As to defendant and Zuniga, he displayed photographs of their tattoos and explained how the tattoos were symbolic of Norteno membership. As to defendant, he supported his opinion by relating incidents such as the following: (1) defendant had beat up a student who tried to use the high school bathroom, telling the student that it was a Norteno bathroom--Pena acted as a lookout; (2) defendant had waived a red belt, symbolic of Norteno membership, on the streets of Gilroy and threw it away when he saw the police; (3) defendant had started a fight with a person who insulted him in the way a Sureno gang member would insult a Norteno gang member; (4) defendant had admitted being a Norteno to a police officer who was investigating a fight between Nortenos and Surenos; (5) defendant had stabbed a Sureno after exchanging gang-indicative insults; and (6) defendant had indicated that he was a Norteno to a police officer by telling the officer that he was “just a northerner” when asked about gang membership. As to Zuniga, he supported his opinion by relating Zuniga’s several admissions of Norteno membership to police officers. He also explained that one gang member will sometimes attack a fellow gang member because of disputes or discipline. He added that gang code of conduct prohibited members from being a snitch.
Defendant testified that he had never before seen Baldwin and was approaching the Bronco in order to converse with the women when shots from an unknown origin were fired. He claimed that he was no longer a gang member.
MOTION TO BIFURCATE
During in limine proceedings, defendant unsuccessfully moved to bifurcate the trial of the gang allegations from the trial on counts 1 and 2. He argued that the gang evidence was prejudicial. The trial court denied the motion, finding “that the fact of gang membership and involvement is intertwined, certainly as to the evidence as to Counts 1 and 2 . . . .”
Defendant contends that the trial court abused its discretion by denying his motion. There is no merit to this claim.
The California Supreme Court has held: “Although no statute requires bifurcation, we found authority to bifurcate trial issues ‘in [Penal Code] section 1044, which vests the trial court with broad discretion to control the conduct of a criminal trial: “It shall be the duty of the judge to control all proceedings during the trial . . . regarding the matters involved.” ’ ” (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) The Hernandez court distinguished the bifurcation of a prior conviction: “[B]y contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Ibid.; see People v. Martin (1994) 23 Cal.App.4th 76, 81.) However, the Hernandez court further held: “The authorization we found . . . for bifurcation of a prior conviction allegation also permits bifurcation of the gang enhancement. . . . [¶] . . . But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation--including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (People v. Hernandez, supra, at pp. 1049-1050; see People v. Balderas (1985) 41 Cal.3d 144, 171-172.) The burden is on the defendant to show that there is a substantial danger of undue prejudice from the evidence. (People v. Hernandez, supra, at pp. 1050-1051.)
We review the denial of the motion for abuse of discretion. (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) An abuse of discretion may be found when the trial court’s ruling falls outside the bounds of reason. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
Here, by definition, the gang enhancement evidence was inextricably intertwined with the charged offenses. Moreover, the gang evidence was admissible as to the charged offenses. For example, it supported a motive--intragang discipline or dispute. It also explains Baldwin’s failure to identify defendant--no snitching code. It further supports that defendant and Zuniga knew the other as a fellow Norteno and were assisting each other in committing the crimes against Baldwin. Thus, any inference of prejudice was dispelled and bifurcation was not necessary. Since gang evidence would be admissible to prove the charged offenses, it follows that the trial court did not abuse its discretion in denying the motion to bifurcate the gang enhancements.
But this does not end the matter. Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the defendant shows that joinder actually resulted in gross unfairness amounting to a denial of due process. (People v. Mendoza (2000) 24 Cal.4th 130, 162.)
Defendant simply fails to carry his burden. He points to nothing unusually prejudicial or inflammatory in the particular gang evidence offered in this case. He claims that the prejudicial influence of the gang evidence was particularly strong because there was conflicting evidence as to Baldwin’s shooter. He cites his own testimony as the source of the conflict. But defendant’s testimony that shots rang out from nowhere was preposterous because (1) it was undisputed that defendant was Smythe’s front-seat passenger, and (2) both Baldwin and Medina saw Smythe’s front-seat passenger shoot the gun. Defendant also asserts that the gang evidence compromised his defense in counts 5 and 6. But the trial court instructed the jury in the language of CALCRIM No. 1403, which limits the purpose of the gang evidence and tells the jury that it “may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit a crime.” We presume that the jury followed this instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Defendant finally asserts that “Had the motion to bifurcate the gang enhancement been granted, the most inflammatory and prejudicial of the gang evidence, i.e., the predicate offenses [Zapata and Pena convictions] and primary activities evidence [gangs commit robberies, etc.], would have been excluded [but] the prosecution would still have been entitled to offer evidence that [defendant], Zuniga and Baldwin were gang members and to offer evidence, if any was available, to support . . . that there was some gang-related motive for the shooting.” But defendant argued the contrary at trial. He argued that all of the gang evidence was prejudicial because there was no apparent motive but for the gang evidence: “[T]he gang stuff . . . will give the motive, although they don’t need a motive, but it will give them something to hang on to when I don’t have as a prosecutor anything to give them. I don’t have anything to give them. All I have is the facts in front of you. This is what I think happened. . . . But let’s add on top of that the gang stuff. It rounds it out. It gives you everything you need to hang everybody. . . . It’s just the prejudicial effect of this is so monumental. I mean it’s just so obvious it just screams.” Thus, defendant’s own argument at trial undermines the point he makes here.
SUBSTANTIAL EVIDENCE--GANG AND FIREARM ALLEGATIONS
The gang allegations required proof that defendant committed the underlying offenses “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.” (Pen. Code, § 186.22, subd. (b)(4).)
Defendant argues that no substantial evidence supports the true finding because “The only suggestion of the reason for the shooting came from the speculation of Detective Deras who was asked about possible motives for the incident.” We disagree with defendant’s analysis.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that 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.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “The substantial evidence standard of review applies to [Penal Code] section 186.22 gang enhancements.” (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) “To prove a gang allegation, an expert witness may testify about criminal street gangs.” (People v. Romero (2006) 140 Cal.App.4th 15, 18.)
“The crucial element [of a gang allegation] requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. Thus, the typical close case is one in which one gang member, acting alone, commits a crime.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198, emphasis in original.) This case does not involve a gang member acting alone. Defendant and Zuniga committed counts 1 and 2 together. Both were Nortenos. “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
“[I]t is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.” (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) Here, however, evidence supports that the commission was related to the gang.
The police arrested Zuniga while defendant remained at large. From jail, Zuniga telephoned defendant and advised that Baldwin had told the police that Surenos had shot him. Defendant told Zuniga during the same conversation that the “homies are willing to bat for you, homie. They’ll say that you were somewhere else.” Deras opined that defendant’s statement meant that Norteno gang members were willing to fabricate an alibi for Zuniga.
“Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with [a] fellow gang member[].” (People v. Morales, supra, 112 Cal.App.4th at p. 1198.)
The firearm allegation was grounded upon Penal Code section 12022.53, which generally imposes additional punishment for personally using a firearm in the commission of specified felonies. Penal Code section 12022.53, subdivision (e)(1), provides an exception to the personal-use requirement if the defendant was a principal and violated Penal Code section 186.22, subdivision (b). The jury’s finding in this case was made under Penal Code section 12022.53, subdivision (e)(1). Defendant concedes that his evidentiary challenge to the jury’s firearm finding is dependent upon a successful challenge to the jury’s gang finding. Since we have rejected the challenge to the gang finding, we reject the challenge to the firearm finding.
SUBSTANTIAL EVIDENCE--COUNT 5
Defendant rented a hotel room in which to pretend to buy marijuana and steal it instead. Scott Bargar arrived at the room. Bargar possessed a half pound of marijuana and a knife. After admitting Bargar into the room, defendant hit Bargar on the back of the head with a pellet gun. Bargar pulled out his knife and took the gun from defendant. Bargar threatened defendant, and defendant pulled out a knife. Defendant slashed Bargar on the nose, Bargar slashed defendant on the head and ear, and defendant slashed Bargar on the back of the head. Bargar sensed that defendant did not want to stop fighting, pushed defendant out of the way, left the hotel room, and ran down the hallway. Defendant followed Bargar out of the room, out an exit door, and down a stairway to another exit door. As Bargar tried to open the door, defendant stabbed him in back of the neck.
According to defendant, he cut Bargar’s neck during the hotel-room fight, followed Bargar down the stairway, and ran out an exit door opposite from the door that Bargar approached.
Attempted murder requires a finding of express malice--i.e., the specific intent to kill. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8; People v. Lashley (1991) 1 Cal.App.4th 938, 945, fn. 4; Pen. Code, § 188 [“deliberate intention unlawfully” to kill another person].) “Generally, the question whether the defendant harbored the required intent must be inferred from the circumstances of the [crime].” (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.)
Defendant contends that no substantial evidence supports a finding of express malice for count 5. He claims that “On cross-examination, Barger [sic] significantly retreated from his testimony on direct examination and admitted that he did not see or feel [defendant] stab him in the hall.” According to defendant, Bargar’s direct testimony was withdrawn and “not of solid value” but instead “consistent with the conclusion that Barger’s [sic] neck wound was inflicted during the fight in the hotel room.” We disagree with defendant.
Defendant and Bargar had a knife fight in the hotel room. Bargar ran away. Defendant followed him. And Bargar did not significantly retreat from his direct testimony. On cross-examination, Bargar testified that he was stabbed in the neck at the exit door and, at the time he was stabbed, “saw what was a person.” Thus, the jury was not required to accept defendant’s testimony that he stabbed Bargar in the hotel room or infer that some unknown person stabbed Bargar at the exit door. Bargar was stabbed at the exit door. Defendant had a motive, the opportunity, and the means to stab Bargar at the exit door. The jury could therefore reasonably infer that defendant stabbed Bargar at the exit door.
PROSECUTORIAL MISCONDUCT
The prosecutor argued the following to the jury: “And that’s the same idea here. Why is he trying to stab Mike Hernandez [count 4] in the chest? Because he’s trying [to] kill him. Could we have charged attempted murder on Mike Hernandez? You betcha we could have. But you know what? That’s okay. All he’s charged with is assault with a deadly weapon with great bodily injury. That’s okay. We’re not going to overcharge the defendant. But certainly you could have charged attempted murder in that case, because every time he stuck a knife in Mike Hernandez what’s he trying to do? He’s trying to get a vital organ. Same thing here. Why do you go after the neck? Why do you go after the neck? Same reason. Scott Bargar, when he had him in that headlock--remember the defendant testified or Scott Bargar testified that he put that thing up to this neck? . . . He’s trying to kill him. . . . [¶] Now I want to distinguish the difference between premeditated, deliberate, and willful attempted murder versus that type of attempted murder that it’s not. The law recognizes the distinction between an attempt to kill and the attempt to kill that you thought about, premeditated, and done deliberately. This applies only to the shooting case, Dustin Baldwin’s case. It does not apply to Scott Alan Bargar because although I think you could infer the fight goes on in the hotel room, they’re cutting each other, the defendant gets mad, he’s got plenty of time as he’s running down this hallway after Scott Bargar to think about what he’s going to do next, that he’s going to stick him in the neck. He’s going to do it willfully. He’s going to do it deliberately. And he is going to do it with premeditation but it’s not as clear as the shooting case. So, therefore, it’s not charged because we are not going to overcharge the defendant. You could make a good argument but where you can make a very easy argument is with the shooting case.”
Defense counsel argued the following during his closing as to Baldwin: “[Defendant] made a lot of mistakes. He’s got to pay a price, but let’s make him pay the price for what it is he’s done. I’m only asking you to think about this very clearly. I want to begin from there. [¶] . . . [¶] The attempted murder. Attempted murder of Mr. Baldwin, Dustin Baldwin. As the District Attorney said, five people could look at something and see it so differently. Now I’ve heard the same testimony you heard and I heard it a lot different than the People did. But that’s my job. That’s my job. Probably [the prosecutor] and I would never agree about many things. That’s why you’re here.” He then pointed out that defendant had denied being Baldwin’s shooter while declining to identify Zuniga as the shooter. He highlighted certain testimony from which the jury could infer that Zuniga was the shooter and doubt that defendant was the shooter. And he urged that, in any event, the shooting had occurred when Baldwin drove his Bronco at him and Zuniga and therefore amounted to no more than attempted voluntary manslaughter: “That’s imperfect self-defense. That’s when you think you have to do something but you’re wrong. But what it does is it takes away the specific intent to kill necessary for murder. The malice murder it comes down. It’s reduced.” As to Bargar, defense counsel argued the following: “The facts are just not in dispute. He hit him in the back of the head or the back of the neck with a pellet gun. Now he’s charged with attempted murder. Attempted murder. What was his intention? . . . I just have a different take on it. He was wrong (pointing). Wrong. Maybe he could argue assault with a deadly weapon. He may have done that. He may have done attempted robbery. He may have done that. Did he try [to] kill somebody? Absolutely not.”
During rebuttal, the prosecutor offered the following: “The defense attorney said one thing that I wrote down. We cannot agree. We cannot agree so you’re here. I’m not sure what that meant exactly. What I took it to mean is that we weren’t willing to plea bargain with this defendant. We weren’t willing to make a deal with him. We weren’t willing to shake his hand and say, oh, we’ll, you know, dismiss some charges and mitigate this case, make a deal with you. I guess that’s what he was talking about. And he’s right. We’re not going to plea bargain this case. And I’m going to ask you do the same thing. We’ve not over charged this case. I talked about that earlier in my arguments. We have charged him with everything that he is responsible for, the set of circumstances that he personally set into motion when he decided to get out of CYA, abscond from parole, and go on this spree of violence bludgeoning, shooting, and stabbing. We’re going to ask you, just like the defense attorney asked, to hold him responsible for each and every one of those acts. And at the same time be thankful that [we] don’t have four or five dead bodies, that this isn’t actually a murder trial. It’s instead an attempted murder trial. I’m going to ask you not to get out of that box and shake his hand and make a deal, because I’m not going to do that.” (Italics added.)
Defendant contends that the prosecutor engaged in misconduct by making the highlighted remarks. According to defendant, the remarks “improperly represented that [defendant] had sought, through counsel, to admit some or all of the charges.” Defendant’s analysis is erroneous.
Misconduct involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Haskett (1982) 30 Cal.3d 841, 866.) When a statement by the prosecutor is challenged as misconduct, we examine the prosecutor’s statement in the context of the whole argument and all the instructions in order to determine whether there is a reasonable likelihood the jury construed or applied the statement in an objectionable way. (People v. Hill (1998) 17 Cal.4th 800, 832; People v. Morales (2001) 25 Cal.4th 34, 44.) “ ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v. Brown (2003) 31 Cal.4th 518, 553-554.) “Juries are warned in advance that counsel’s remarks are mere argument, missteps can be challenged when they occur, and juries generally understand that counsel’s assertions are the ‘statements of advocates.’ Thus, argument should ‘not be judged as having the same force as an instruction from the court.’ ” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21.)
The most damaging meaning from the prosecutor’s remark is that defendant had sought, through counsel, to admit some or all of the charges. Defendant, however, has not carried his burden to show a reasonable likelihood that the jury construed the remark in a damaging manner. This follows because defendant himself argued that he had to pay a price in the case--but pay a price only for what he did. The context of the prosecutor’s remark stemmed from his argument that he was not overcharging defendant in the Baldwin and Bargar cases. In the Baldwin case, it was undisputed that defendant was on the scene and indisputable that defendant was criminally culpable either as the shooter or an aider and abettor. Defendant’s realistic defense was that he was guilty of nonpremeditated attempted murder or manslaughter. Similarly, in the Bargar case, defendant admitted that he had hit Bargar from behind and later stabbed him. Defendant’s realistic defense was that he was guilty of manslaughter because he stabbed Bargar in the hotel room during a fight or of a lesser offense such as robbery or assault. Thus, if the jury had construed the prosecutor’s remark as suggesting that defendant had sought to mitigate the Baldwin or Bargar charges, the jury would be accepting no more than that defendant had unsuccessfully sought via negotiated disposition what he was asking it to return via verdict. The import of such a construction is supportive rather than damaging to defendant’s case.
“When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal.” (People v. Morales, supra, 25 Cal.4th at pp. 43-44.) Here, defendant concedes that he did not object and request an admonition.
Defendant therefore alternatively contends that his trial counsel was constitutionally ineffective because counsel did not object and request an admonition when the prosecutor made the remarks. Since we have addressed the point on the merits and concluded that there was no misconduct on the part of the prosecutor, “counsel cannot be faulted for failing to object.” (People v. Boyette (2002) 29 Cal.4th 381, 433.)
JURY TRIAL
Defendant finally contends that the use of his juvenile adjudication to enhance his sentence violates protections in the United States Constitution. He points out that juvenile adjudications are nonjury adjudications and argues that he is guaranteed the right to a jury trial before he may be given a greater punishment than the maximum punishment for his current crime. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
We have previously rejected this argument in People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834, and People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1319. We agree with the conclusions reached in those cases for the reasons stated therein. No purpose would be served by repeating the reasoning here.
DISPOSITION
The judgment is affirmed.
I CONCUR: Bamattre-Manoukian, J.
DISSENTING OPINION
RUSHING, P.J.
I respectfully dissent.
For the reason stated in People v. Nguyen, review granted July 30, 2007, S154847, I would reverse on appellant’s jury trial claim, that is, the use of the juvenile prior to double the term in Counts 1 and 2. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)