Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1105533, Timothy W. Salter, Judge.
Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
This is an appeal from judgment after jury trial. Defendant and appellant David Valenzuela Arzate contends the trial court conducted an inadequate Marsden hearing, prejudicially admitted expert gang testimony, and failed to give a limiting instruction concerning that evidence. He contends the evidence was insufficient to support his conviction on count III, participation in a street gang in violation of Penal Code section 186.22, subdivision (a) (all further section references are to the Penal Code); he also contends the court misinstructed the jury on that count. Finally, he contends the court conducted an inadequate inquiry concerning possible jury misconduct and erroneously failed to grant defendant’s mistrial motion based on that misconduct. We reject these contentions for reasons stated below. In addition, defendant contends the court imposed an erroneous sentence on count I (attempted murder), and that the abstract of judgment requires correction. Finding merit to these latter contentions, we will modify defendant’s sentence and direct the trial court to prepare an amended abstract of judgment.
See People v. Marsden (1970) 2 Cal.3d 118.
FACTS AND PROCEDURAL HISTORY
Kari Moncibaiz and her estranged husband, Joel Moncibaiz, were arguing in the parking lot of their mutual place of employment. Defendant, who was dating Kari and by whom Kari was then pregnant, happened to call Kari on her cellular telephone while the argument was in progress. Joel took the telephone and exchanged taunts and heated words with defendant. After the call, Kari drove away.
To avoid confusion, at times we will refer to Kari and Joel Moncibaiz by their given names.
A short time later, Kari returned to the parking lot, followed by defendant and two other men in a separate car. Defendant came out of the car, and he and Joel immediately began fighting. During a lull in the action, Kari approached defendant, lifted his shirt, and took a handgun from defendant’s waistband. She returned to her car and defendant and Joel resumed their fight.
Joel, a much larger man than defendant, was getting the better of defendant in the fight. Defendant broke off the fight and went to Kari’s car, entering on the passenger side. He and Kari struggled over the gun, then Kari threw the gun out the window. Defendant got out of the car and recovered the gun.
Defendant pointed the gun at Joel, who was then 20 to 25 feet from him. Defendant began firing. Joel turned and ran in a zig-zag motion until he fell down, unharmed. In all, defendant fired about seven times.
Joel stood up again and began yelling. Kari left in her car, and defendant and the other two men left in their car.
In a second amended information, defendant was charged with attempted premeditated murder (count I; §§ 664 and 187), assault with a firearm (count II; § 245, subd. (a)(2)), participation in a criminal street gang (count III; § 186.22, subd. (a)), and possession of a firearm by a convicted felon (count IV; § 12021, subd. (a)). In addition, the information contained many enhancement allegations, including, as relevant to this appeal, an allegation that counts I and II were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).)
Commencement of defendant’s jury trial was delayed for a week while his appointed attorney finished a murder trial. Three days into defendant’s trial, he made a motion to replace his attorney on various grounds, including his attorney’s lack of preparation for the trial. The court conducted a hearing and denied the motion.
The jury found appellant guilty on all four counts of the information. In addition, the jury found true premeditation and firearm use enhancements. However, the jury found not true the criminal street gang enhancement allegations for counts I and II. In a separate trial to the court sitting without a jury, the court found true all of the prior-conviction allegations contained in the information.
The court sentenced defendant to a prison term of 45 years to life, plus 26 years for the firearm and prior-conviction enhancements (20 years and six years respectively) on count I, for a total operative sentence of 71 years to life. The court imposed and stayed sentence on count II pursuant to section 654. The court imposed concurrent sentences of 25 years to life, plus six years, for each of counts III and IV.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Marsden Motion
A. Introduction
“People v. Marsden (1970) 2 Cal.3d 118 … established the right of a defendant personally to raise the issue of ineffective assistance [of counsel] by means of a motion to discharge his or her attorney and appoint a new one. When defendant requests a change of counsel, the court must allow defendant an opportunity to explain the reasons for his or her dissatisfaction with counsel. … The defendant is entitled to relief on a showing that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 222, p. 347, italics omitted.)
In this case, defendant made such a motion, and the court conducted a hearing in which defendant was permitted to explain the reasons for his dissatisfaction with counsel. The court denied the motion, concluding that counsel was “doing a fair job under the circumstances” and that there had not “been such a complete breakdown [in defendant’s relationship with counsel] that it would make it impossible for Counsel to continue to effectively represent the defendant.”
Defendant contends on appeal that “the trial court’s Marsden hearing inquiry was inadequate. Although [defendant] expressed numerous and various complaints about [counsel], the trial court made an inadequate inquiry into some of those complaints and altogether ignored others.”
B. Factual Context
Before we address defendant’s particular claims of trial court error, we must establish the context for the Marsden motion. While there was some conflict about certain facts, substantial evidence supported the following facts impliedly found by the trial court.
Defendant had originally been represented by other appointed counsel. Defendant filed a Marsden motion against that attorney a week before his original trial date. He alleged counsel had not prepared for the trial and had failed to provide documents to defendant that might show counsel had a conflict of interest. Counsel stated that there was not much preparation to be done, in his understanding of the case, but he agreed that he and defendant had been totally unable to communicate throughout his representation. The court granted the motion and appointed William Miller to represent defendant.
On the Friday before the rescheduled trial was to begin on Monday, Miller met with defendant. Miller told defendant he had just finished a murder trial and that there was no possibility Miller could be ready to go to trial as scheduled. He told defendant it was necessary to seek a continuance of the trial. Defendant told Miller he wanted to keep the trial date because the victim would not show up to testify against him and there was no other evidence he had committed the crime. Miller advised defendant that this was a very dangerous choice and that “it had been my experience that no matter what victims, witnesses or anybody else said, people had a way of showing up at trial and testifying once they had received the subpoena.” Defendant’s “decision was to continue to go to trial.” Miller reiterated to the court that he was “not prepared to do this trial” and was just “winging it.”
With that context in mind, we turn to the trial itself.
The witnesses appeared as scheduled. While two of the witnesses testified they did not see who fired the gun, Joel Moncibaiz testified he saw defendant point and fire the gun, and that defendant continued to fire as Joel ran away.
On the third or fourth day of trial (the dates on the table of contents for the reporter’s transcript and the cover page of the separate, confidential reporter’s transcript of the hearing are in conflict) but, in any event, after Joel Moncibaiz had completed his testimony, defendant orally notified the court he wanted to have his attorney replaced. The court convened a Marsden hearing outside the presence of the prosecutor and the jury.
The court began the hearing by asking defendant why he wanted a new attorney. Defendant replied, “I’ve lost all faith, if there was any, in my counsel.” He said counsel had not filed a “Pitchess motion, a Brady motion, just different things, Your Honor.” The court invited defendant to explain. Defendant replied: “As far as the so-called victim, you know, he came in here. You could tell he ain’t slept in about two weeks straight, drug addict. You know what I’m saying? … [¶] And, you know, as far as my counsel, I just -- I have no faith in him, Your Honor.” The court pointed out that “your counsel wasn’t testifying” and that the jury would be able to judge the witness’s credibility: “I can’t say what impact he made with the jury.”
The court then asked if there was “anything in addition to these two motions that you say your attorney has not done that you wanted him to do?” Defendant said Miller “doesn’t seem ready” to conduct the trial. Miller then explained his interaction with defendant the previous Friday, recounted above, and said defendant was right, he, Miller, was “not prepared to do this trial” and had “just been winging it as we go.” He said he had “given my client the best representation I can under the circumstances.”
The court asked defendant if he had anything else. Defendant said he had written notes to counsel during trial and that counsel did not ask the questions defendant proposed in the notes. In addition, defendant said Miller had not stressed to him how unprepared Miller was for trial and how necessary a continuance was. In response, counsel reiterated, in essence, that he had clearly stressed to defendant that they should not go to trial. At Miller’s suggestion, the court included a copy of defendant’s notes from that day as an exhibit in the Marsden hearing. The court determined from Miller that notes from the previous day had been discarded.
The court denied the Marsden motion.
C. Discussion
It is generally true that a Marsden motion can be made at any time, since a defendant is entitled to competent representation at all times. (5 Witkin & Epstein, Cal. Criminal Law, supra, § 223, p. 349.) Nevertheless, a defendant is not entitled to use such a motion to interfere with the orderly progress of a trial or to otherwise subvert the processes of justice; a Marsden motion can be denied for that reason alone. (See, e.g., People v. Roldan (2005) 35 Cal.4th 646, 682 [“a criminal defendant cannot willfully refuse to cooperate with his appointed attorney, thereby possibly hampering his own defense, and then claim he is entitled to a new attorney because counsel has not been effective”]; People v. Trujillo (1984) 154 Cal.App.3d 1077, 1087 [“in view of (the defendant’s) deliberate attempt to manipulate the court system, the court did not abuse its discretion in refusing to appoint a new attorney on the morning of the day set” for trial]; see also People v. Lewis (2006) 39 Cal.4th 970, 1004 [“Indeed, given the timing and nature of the motion, it appears to have been made primarily to delay the trial.”].)
In the present case, defendant told counsel the victim would not appear for trial and counsel did not need time to prepare for trial. Having made that choice, and having been wrong about appearance by the victim, defendant was not entitled to another trial so that he could try again to dissuade the victim from testifying. While it is conceivable that a defendant in these circumstances might still be able to show that counsel was prejudicially ineffective in some way not related to defendant’s deliberate choice not to seek a continuance, no such showing was made in the Marsden hearing and defendant does not contend on appeal that counsel was constitutionally ineffective. Accordingly, we reject defendant’s claims that counsel did not come to visit him in jail, was forgetful, and was unprepared for trial, since all of those complaints are merely aspects of defendant’s determination that counsel did not need to be prepared because the victim would not appear for trial.
Defendant makes limited, alternative, claims that counsel was ineffective in pursuing particular motions and instructions in the event we determine certain trial court error was waived. We discuss these claims in connection with the primary claims of trial court error in subsequent sections of this opinion. The point here is that defendant does not contend counsel actually was constitutionally ineffective as outlined in his Marsden motion, pursuant to the standards set forth in People v. Ledesma (1987) 43 Cal.3d 171, 215-218. In violation of the requirement that each contention be stated under a separate heading summarizing the point (Cal. Rules of Court, rule 8.204(a)(1)(B)), appellant apparently contends counsel was ineffective for failing to request a continuance over defendant’s objection. He does not, however, attempt to show that a more favorable result was reasonably probable but for counsel’s actions. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Further, we reject defendant’s claim that the court denied the Marsden motion based on its observation of Miller’s courtroom actions or the fact that Miller was doing a better job than defendant would have if self-represented: The court’s comments were intended to convey the idea that even though defendant created the unfavorable circumstances, his trial had not become a farce or a sham. The court was correct; there has been no showing that defendant would have received a more favorable verdict even if defendant had not prevented Miller from more fully preparing for trial.
Defendant contends, in addition, that the trial court failed adequately to inquire about several of defendant’s allegations at the Marsden hearing. Accordingly, he says, he was not given the opportunity to show counsel’s ineffectiveness. Defendant says, “The trial court completely ignored appellant’s complaint that Mr. Miller had failed to file appellant’s requested Brady and Pitchess motions. … The trial court asked no follow-up questions of appellant regarding this complaint.”
The record presents a different picture. Defendant told the trial court, “Well, it’s just as far as the Pitchess motion, a Brady motion, just different things, Your Honor.” The court responded: “You feel he should have filed a Pitchess motion and a Brady motion?” Defendant: “Yes, your Honor. As far as the so-called victim, you know, he came in here. You could tell he ain’t slept in about two weeks straight, drug addict. You know what I’m saying?”
Motions pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 and Brady v. Maryland (1963) 373 U.S. 83 seek exculpatory evidence in the possession of the police and the prosecutor. A Pitchess motion seeks records of past misconduct by police officers involved in the case; a Brady motion seeks exculpatory evidence more generally.
In context, then, the court reasonably (and, it appears, correctly) concluded defendant wanted Miller to have sought from the prosecutor information about drug abuse by Joel Moncibaiz that might have undermined his credibility as a prosecution witness. The court concluded witness credibility was a matter for the jury and, impliedly, that information about the witness’s drug use, if any, would not alter the jury’s ability to determine credibility.
Accordingly, we conclude the court made an adequate inquiry, “sufficient to ascertain whether counsel is in fact rendering effective assistance.” (People v. Eastman (2007) 146 Cal.App.4th 688, 695; see People v. Valdez (2004) 32 Cal.4th 73, 96.) Defendant has not shown that the court abused its discretion in failing to appoint substitute counsel on the basis of the failure to file motions for impeachment evidence concerning the victim. (Ibid.)
Finally, defendant contends the trial court failed adequately to inquire into defendant’s claim that “there was an irreconcilable conflict” between Miller and himself. In addition to the issues caused by defendant’s refusal to agree to a continuance, he points to the trial court’s inadequate inquiry into his allegation that Miller ignored notes defendant had made “so he could have asked certain witnesses that have been on the stand” questions based on the notes. Rather than inquire further into that matter, the court directed counsel to consult the notes if defendant provided them. “I’m not telling you you have to do what he asks you to ask, but at least you’ll read them and consider them.” Thus, while the trial court did not find the relationship between defendant and Miller was irretrievably broken, the court did properly exercise its discretion to prevent a future deterioration of that relationship. No error appears in its having done so.
It appears counsel was not ignoring defendant’s notes, in any event. In recross-examination of Joel Moncibaiz, counsel asked which hand defendant used to hold the gun (Moncibaiz said, “His right.”), apparently in response to defendant’s note, which stated: “Was the socalled gun in my right or left hand - I’m lefthanded.” (Underlining in original.) Recross-examination occurred before the court heard the Marsden motion.
II. The Gang Expert’s Testimony
A. Evidentiary Issues
Defendant contends the trial court prejudicially erred in admitting certain portions of the gang expert’s testimony and in denying his mistrial motion relating to that evidence. Defendant asserts three objections to the gang evidence. First, he says some of the evidence was unduly prejudicial (Evid. Code, § 352) because it implicated him in certain murders and planned shootings with which he was not charged. Next, he says the evidence was remote in time and, therefore, irrelevant to show that he was currently an active member of the gang. Finally, he contends the expert’s repeated mention of the Mexican Mafia was unduly prejudicial. Defendant has not established prejudicial error.
The expert, Ceres Police Officer Dennis Perry, testified that defendant had spoken with a confidential informant and that this conversation had been recorded by the police. During the conversation, defendant “talk[ed] about certain homicides.” One was the murder of Jesse “Animal” Carrillo by members of the Vernon Block Boyz, a subset of the Norteno gang. Then he talked about the murder of Michael Vails “in a tattoo parlor in Modesto” by a particular Norteno. Then the expert testified that defendant told the informant that two Norteno members would be released on parole and “the activities that these gang members were out on the streets … committing, he knew when meetings were going to be taking place and so forth.” By way of explaining his own knowledge that the parolees were Nortenos, the expert testified that he stopped one of the men a few days after his release on parole and the man pulled a gun and tried to shoot the expert.
This evidence was not offered to prove the murders and the attempted shooting. It was offered to show defendant had intimate knowledge of the activities of the Nortenos. It was admissible for that purpose. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1511.)
Defendant contends, nevertheless, that the evidence was unduly prejudicial under Evidence Code section 352 because “the implication for the jury would have been almost inescapable that appellant was talking about criminal activities in which he was involved, rather than just ca[su]ally sharing second or third-hand news of the underworld.” He says the jury would have treated the testimony as evidence of defendant’s “bad character or … disposition to commit crime.”
The problem with defendant’s “almost inescapable” implication from the evidence is that there is no support for it in the record. The expert’s testimony did, indeed, convey only that defendant was reporting “news of the underworld,” that is, the exploits of his fellow Nortenos. As such, the evidence was not unduly prejudicial and it carried no hidden implication that defendant was directly involved in the crimes.
Defendant’s second contention is that, even if this evidence was not unduly prejudicial, it was not relevant in the first place because it did not address the issue on which it was offered-- defendant’s current active participation in the gang. The recorded conversation occurred more than a year before the present charges, and the information defendant conveyed to the confidential informant concerned events even more remote. He contends the evidence did not, therefore, constitute “evidence of current knowledge of gang activities.”
That evidence, alone, did not prove current active participation, but the evidence did provide context for and corroborate other evidence of current participation-- such as defendant’s request, when he was arrested for the present crimes, to be housed in the Norteno wing of the county jail. The evidence was relevant to show he had been an active gang member in the recent past as a predicate for the evidence of his current gang status.
The gang expert mentioned the Mexican Mafia prison gang in conjunction with his explanation of the formation of the Norteno gang as a breakaway group from the Mexican Mafia some 40 years ago. Defendant’s third contention is that the court erred in permitting evidence “connecting the Norteno street gang to the notorious Mexican Mafia prison gang.” Defendant’s complaint seems to be that there was no showing that the Norteno gang, formed in prison, was related to the Norteno criminal street gang at issue in the present case and, therefore, reference to the Mexican Mafia was unduly prejudicial.
Whether the Mexican Mafia prison gang is or is not “notorious” or, at any rate, more notorious than the Nortenos, is neither established in the record on appeal nor a subject for judicial notice. The expert did not testify at all about the activities of the Mexican Mafia within the prison system (or otherwise) except to the extent he said the Mexican Mafia spawned the Nortenos. Since the overall thrust of the expert’s testimony in this regard was that the Nortenos violently took control of the “prison environment” from the Mexican Mafia, and that “a lot of people were injured and killed” during this, their mention seems no more or less prejudicial than mention of the Nortenos. In any event, there certainly is nothing talismanic about the name “Mexican Mafia” that causes undue prejudice just by its invocation.
It seems the true basis for defendant’s contention on appeal is that the story of one prison gang taking over from the other is irrelevant to issues of criminal street gangs. However, the witness testified that the Norteno prison gang and the Norteno street gang are one and the same, and that a primary purpose of the street gang is to generate, through criminal means, money that can be placed “into an account so other members [of the gang] would be able to draw and have some benefits while they’re inside the correctional facility.” Accordingly, the history of the formation of the Norteno prison gang is part of the history of the existence of the Norteno criminal street gang at issue in this case. The court did not err in permitting the expert’s limited testimony about the Mexican Mafia.
B. The Omission of a Limiting Instruction
Defendant concedes that in the ordinary case a trial court has no duty to give the jury an instruction limiting the purposes for which it can consider certain evidence. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) Defendant contends, based on dicta in Hernandez, that the court is required to give such an instruction in some instances. Hernandez states that the court has “recognize[d] a possible exception in ‘an occasional extraordinary case in which unprotected evidence … is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.’” (Id. at pp. 1051-1052.) The Hernandez court held, however, that the case before it did not fall within the “possible exception”: “All of the gang evidence [here] was relevant to the gang enhancement, which was a legitimate purpose for the jury to consider it.” (Id. at p. 1052.)
Defendant does not cite any case in which reversible error has been found based on the failure to give such an instruction on the court’s own motion. In the only case cited by defendant, the court found the gang evidence itself prejudicial despite the fact the court gave a limiting instruction. (See People v. Albarran (2007)149 Cal.App.4th 214, 228.) In Hernandez, the court noted it had previously disapproved other cases finding a sua sponte duty to give a limiting instruction, and it again disapproved other, similar cases. (See People v. Hernandez, supra, 33 Cal.4th at p. 1052, fn. 3.)
As in Hernandez, the evidence in this case was relevant to both the gang enhancement allegations and the substantive gang participation charge. It was clear that the expert’s testimony was presented to establish that (1) the Nortenos were, in fact, a criminal street gang and that they, as defined by section 186.22, subdivision (f), were an “ongoing organization” that had “as one of its primary activities the commission of one or more” enumerated crimes, and (2) that defendant knew so much detailed information about the gang’s activities that he was a member of the gang. These were core requirements for proof of the prosecution’s case and the evidence cannot in any way be considered “minimally relevant.”
Further, the evidence was not highly prejudicial since the evidence was somewhat generic and did not attempt to tie defendant to the actual commission of any crimes mentioned in the expert’s testimony. In other words, the evidence was not presented as, and was in reality not, “other crimes” evidence used to attack defendant’s character. (See Evid. Code, § 1101.)
Whatever may be the scope of the “hypothetical exception” (People v. Farnam (2002) 28 Cal.4th 107, 164) defendant asserts here, the present evidence did not place a duty on the trial court to give a limiting instruction in the absence of a request for such instruction by the defendant.
Defendant contends, in the alternative, that his trial attorney was constitutionally ineffective for failing to request such an instruction. Once again, the circumstances here are similar to those in Hernandez, where the Supreme Court summarized the relevant standards: “‘To establish ineffective assistance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him.’ [Citation.] ‘If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.’” (People v. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.)
And as the Hernandez court concluded: “On this record, we cannot say that counsel [was] deficient for not requesting a limiting instruction. ‘A reasonable attorney may have tactically concluded that the risk of a limiting instruction ... outweighed the questionable benefits such instruction would provide.’” (People v. Hernandez, supra, 33 Cal.4th at p. 1053.) Here, defendant did not seriously contest the fact that the Nortenos are a criminal street gang; instead, he focused on the idea that the evidence did not show he was an active member and that the shooting was not shown to be gang related. As such, counsel may well have determined he did not want the jury told exactly how the general gang evidence could be considered in determining defendant’s motive and intent in the shooting.
Defendant has not demonstrated any way in which counsel’s failure to request the limiting instruction prejudiced defendant. As noted, it is at least as likely that causing the jury to focus on the more generalized gang evidence would have led to a finding that the enhancement allegations were true. Defendant has not shown he was deprived of his constitutional right to effective assistance of counsel.
III. Violation of Section 186.22
Defendant was charged in count III with violation of section 186.22, subdivision (a). That subdivision states, in relevant part: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished .…” Defendant contends both that the evidence was insufficient to permit conviction of this crime and that the jury was inadequately instructed concerning the crime.
A. Sufficiency of the Evidence
Briefly stated, there are three elements of this crime: First, the defendant must actively participate in a criminal street gang (the “active participation” element). Second, defendant must know at the time of such participation that members of the gang have or are engaged in a pattern of criminal gang activity (the “pattern of activity” element). Third, the defendant must willfully promote, further, or assist felonious conduct by members of the gang (the “willfully assisted” element). Each of these elements is the subject of lengthy explanation in the pattern jury instruction for this crime. (See Judicial Council of California Criminal Jury Instructions (Fall 2008 ed.) CALCRIM No. 1400.) Perhaps, then, it is not surprising that the parties do not agree what evidence is sufficient to constitute each element. We will parse the instruction and case law only to the extent necessary to resolve the present case.
Defendant contends the prosecution failed to prove the offense because (1) there was no evidence the current crimes were gang related, which defendant contends is required to establish the “active participation” element in the present circumstances; (2) the prosecution failed to prove the necessary pattern of gang activity; and (3) there was no evidence defendant aided and abetted felony conduct by fellow gang members, which defendant contends is necessary to establish the “willfully assisted” element. Each of defendant’s contentions is contradicted by the record or is contrary to established law.
Among the other requirements for a criminal street gang is a requirement that the members of the gang engage in a pattern of criminal activity. The statute establishes that such a “pattern” requires, at a minimum, that gang members have committed two or more crimes listed in the statute within a particular timeframe. (People v. Gardeley (1996) 14 Cal.4th 605, 610.) There is no requirement that these crimes be “gang related” beyond the requirement that the crimes be committed by gang members. (Id. at p. 621.)
Defendant contends the evidence in the present case is insufficient to show that one of the “pattern” crimes established by the prosecution, sale of methamphetamine, was committed by a gang member. (See § 186.22, subd. (e)(4).) He claims the gang expert never testified that the drug dealer, Helton, was a member of defendant’s Norteno gang. To the contrary, however, the expert testified explicitly that, for reasons he explained at some length, Helton was a Norteno.
The second crimes relied on by the prosecution to establish the “pattern of criminal gang activity” were the crimes charged in the present case, assault with a firearm and attempted murder. (See § 186.22, subds. (e)(1), (e)(3).) Defendant contends the statute creates liability only for one who aids and abets the “pattern” crimes, not for a direct perpetrator of those crimes. This court and all others have rejected that contention. (See People v. Salcido (2007) 149 Cal.App.4th 356, 367-369 (Salcido).) The evidence was sufficient to establish the “pattern of activity” element.
Defendant contends, notwithstanding the discussion in Salcido, supra, 149 Cal.App.4th at pages 367-369, that this court and others “appear[] to recognize that in order to square with the express purposes of the lawmakers, where a Penal Code section 186.22, subdivision (a) conviction is sought against a direct perpetrator of a crime, that crime must be [] ‘gang-related,’ i.e., a crime intended by the defendant to promote, further and assist the gang in its primary activities” in order to establish “active participation” in the gang. Defendant’s conclusion is based on the same logical fallacy asserted by the appellant in Salcido: while a gang-related offense is sufficient to support section 186.22, subdivision (a) liability, it is not necessary that the offense be gang related. (See Salcido, supra, 149 Cal.App.4th at p. 367.) In other words, it is true that the crimes in Salcido and other cases happened to be gang related (and, consequently, resulted both in substantive liability under section 186.22, subdivision (a) and an enhancement of punishment under section 186.22, subdivision (b)), but there is nothing in Salcido or in the language of section 186.22 that requires that conjunction. The statute merely requires that the defendant promote, further, or assist in “any felonious criminal conduct by members of that gang.” (§ 186.22, subd. (a).) Simply put, defendant, a gang member, promoted felonious conduct by committing the felony. That is sufficient to prove the “willfully assisted” element of the offense (see Salcido, supra, 149 Cal.App.4th at pp. 367-368) and to satisfy the challenged aspect of the “active participation” element.
Ignoring the discussion in Salcido, defendant attempts to rely on the earlier Supreme Court decision in People v. Castenada (2000) 23 Cal.4th 743, 750. As stated in Salcido, “Castenada discussed the crime of gang participation in terms of aiding and abetting. We clarified in [People v. Ngoun (2001) 88 Cal.App.4th 432, 436] that section 186.22, subdivision (a), also applies to a direct perpetrator’s gang-related criminal conduct.” (Salcido, supra, 149 Cal.App.4th at p. 367.) As explained in the text, it also applies to a gang member’s direct criminal conduct.
B. The Jury Instruction
In conjunction with his earlier argument that he could be convicted of active participation in a criminal street gang only if the predicate crimes were shown to be “gang related,” defendant contends the court’s instruction to the jury on the elements of the section 186.22, subdivision (a) charge was insufficient. (The instruction was based on CALCRIM No. 1400.) He says, correctly, that “the instruction, as worded, appears to apply to any offense in which it is shown that a gang member participated.” As we have discussed in the previous section, however, criminal conduct by a gang member is all that is required in establishing the elements of the offense. Accordingly, we reject defendant’s contention that there was instructional error.
IV. Jury Misconduct Issues
A. Additional Facts.
The courtroom in which this case was tried was configured such that the members of the jury had to exit into a common hallway to reach the elevators. On the third day of the seven-day trial, when the jurors left the courtroom, a young woman standing by the elevators appeared to be using her cellular telephone to take pictures of the jurors. Some of the jurors noticed this and, apparently, discussed it among all the jurors the next day. At the afternoon break on the fourth day of trial, one of the jurors brought the matter to the court’s attention: “Your honor, I have a problem before we walk out of this door with what happened yesterday.” When the court asked that juror to remain behind to discuss the matter, the juror said: “I’m sure the whole jury feels the same way.” Another juror said: “We do.” The original juror added: “I don’t think anybody wants to walk out that door.”
The court directed the jury to return to the jury room. After consultation with both counsel, the court went to the door of the jury room and told the jurors that any who wished to could write out on a piece of paper what had happened and what concerns they had, sign the paper, and give it to the bailiff for delivery to the court. Each of the jurors turned in a note. The content ranged from (paraphrasing) “I saw nothing and am not concerned” through “I am concerned because of the woman taking pictures” to “I am concerned because of the nature of this case, gangs, defendant’s note-taking, and the presence of people in the hallway outside the courtroom.”
After reviewing the notes with counsel, the court stated: “It is a concern to me that there seems to be almost a universal concern for their safety expressed by the jurors, and we can certainly probe further to see if they can set those feelings aside, but I do have some serious concerns, frankly, about whether or not this incident has so tainted this jury panel that we can continue.” In the ensuing discussion, defense counsel did not request a mistrial. Counsel suggested additional security measures such as those proposed by the court, and requested the jurors be told the personal information provided to the court had been sealed and was not available to anyone without a court order.
The court decided to send the jury home for the weekend. It advised the jury that the personal information was under seal and there would be additional security both that day and when the jurors returned Monday morning. The court also stated it understood the jurors’ concerns and that the matter would be investigated in an effort to determine who was taking the pictures.
The following Monday the court met with counsel, said it had thought about the matter over the weekend, and proposed to admonish the jury in a manner the court shared with counsel. Defense counsel then moved for a mistrial on the basis that the juror notes showed the jurors were now prejudiced against defendant. He contended they could not be “rehabilitated” and that the jurors would not truthfully admit that they no longer could give defendant a fair trial. The court impliedly denied the mistrial motion and stated that it would proceed with the admonition and further inquiries to the jury.
After introductory remarks about additional security for the jurors and the possibility of imposition of sanctions on the person taking the pictures if any juror saw her at the courthouse again, the court stated to the jury: “There is no evidence that defendant was in any way connected with this incident. It would be improper for any of you to assume that defendant is responsible for this incident. You must -- you must put this matter out of your minds and be fair in this case, deciding this case based upon the evidence that is produced in the courtroom and upon the law as I give it to you. Can you all assure me and the parties that you will wait until you hear all of the evidence and the law before deciding any of the issues in this case and that you can be fair and impartial jurors in this case? If you can be, would you please raise your hand?” All of the jurors did so.
The court then sent all of the jurors except juror No. 2 to the jury room. The court explained to juror No. 2 that there was some concern because his written statement to the court had said, “Some of the jurors are scared for retaliation against them because of the defendant is a gang member.” The court: “I just want to make sure, sir, that you have not already come to a conclusion and judgment about this case, because that’s one of the issues that you will be called upon to decide.” Juror No. 2: “All right.” The court: “Can you assure all of us that you have not decided this case and that you will wait until the evidence is in and the law is given to you before reaching your conclusions?” Juror No. 2: “Yeah.”
The court rejected defense counsel’s request to question juror No. 2 and rejected counsel’s request that the court conduct further questioning as to whether the jurors had already discussed the case among themselves. The court stated: “I rejected that request because of the assurances that have already been given to us by [juror No. 2] and the rest of the jurors.” The jury returned to the courtroom and trial resumed.
B. Discussion.
Defendant contends the court did not make a sufficient inquiry of the jurors to determine “the facts,” that is, to determine whether there are grounds to “discharge one or more of the jurors.” Defendant cites People v. Burgener (1986) 41 Cal.3d 505, 519 (Burgener), in support of his claim.
The issue in Burgener was whether a particular juror was intoxicated, as was reported to the court by the jury foreperson. At the request of defense counsel, the court failed to inquire about the issue and permitted the jury to continue its deliberations. Defendant then appealed from his conviction, contending the court had failed in its duty of inquiry. (Burgener, supra, 41 Cal.3d at p. 517.) The Supreme Court agreed the court had a duty to investigate the matter and determine whether the juror should be discharged and that it was error not to do so. (Id. at p. 520.) However, the court concluded the error did not require reversal because the record did not reflect that the juror was in fact incapacitated; the record did not do so because of defense counsel’s actions. The court held that, in these circumstances, defendant should be relegated to a showing on habeas corpus that the juror was incapacitated, in much the same way a defendant can establish additional facts for a claim of constitutionally ineffective counsel. (Id. at pp. 521-522.)
We have similar concerns in the present case. When the matter was first brought to the court’s attention and the court stated an inclination to discharge the jury, defense counsel sought to minimize the issue, contending, “[J]urors sometimes do, I think, sometimes, you know, unreasonably expect a certain amount of anonymity to their process and all. And all I can tell you is my position is freedom does not come without some risk and that applies to all citizens.”
One can well imagine counsel making a calculated judgment that, even if his client was not behind the incident, if the jury had been intimidated by the picture-taking, it might be reluctant to convict defendant.
By Monday morning, after an opportunity to confer further with his client and, possibly, being reminded that defendant thought the witnesses would not show up for the current trial and perhaps they would not show up if there had to be a retrial, counsel moved for a mistrial.
In any event, even if there are other, wholly innocent, explanations for counsel’s change of direction, one thing is indisputable: counsel did not request the dismissal of particular jurors who might have been prejudiced by the hallway encounter. His only request was that the trial end, not that it continue with a more unbiased jury. His only request to the court to conduct a further inquiry was in the context of the mistrial motion, not in the context of a particularized objection to any individual juror.
We are satisfied that the trial court here conducted the proper inquiry, addressed the jurors’ concerns, and determined the jury would be able to decide the case based on the evidence. Its admonition to the jury further ensured this result. (See People v. Harris (2008) 43 Cal.4th 1269, 1304-1305.) The record contains nothing that leads to a different conclusion: the jury was able to consider the evidence in such a manner that it determined the shooting offenses were not gang related, an indication the jurors had not been prejudiced by the camera incident. As in Burgener, any showing of prejudice that conflicts with the state of the record should be established through habeas corpus proceedings. (See Burgener, supra, 41 Cal.3d at pp. 521-522.)
V. Sentence Correction
The prescribed sentence for willful, deliberate, and premeditated attempted murder (count I) is life in prison with the possibility of parole. (§ 664, subd. (a).) Under normal circumstances, the minimum period prior to parole is seven years. (§ 3046, subd. (a)(1).) Defendant, however, was found to have three qualifying “strikes,” so his sentence must be calculated under section 667, subdivision (e)(2)(a). That section provides that the minimum term of imprisonment must be the greater of three options set forth there. In this case, the second of those options, 25 years, provides the greatest minimum imprisonment. Accordingly, the correct sentence on count I is 25 years to life.
The trial court pronounced a sentence of 45 years to life on this count. We will modify the sentence on count I to conform to the statutory requirement of 25 years to life.
In addition, through clerical error, section 3 of the abstract of judgment (Judicial Council form CR-292 (rev. Jan. 1, 2007)) shows imposition of enhancements for one count stayed pursuant to section 654 (count II) or for which concurrent sentences were imposed (counts III and IV). Accordingly, while the abstract of judgment shows operative enhancements of 14 years for prior conviction and prison term enhancements, the oral pronouncement of judgment only imposes six years of such enhancements. This error must be corrected when the court prepares a new abstract of judgment reflecting the modification of sentence on count I.
DISPOSITION
The judgment of conviction is affirmed. The judgment of sentence is modified to impose a sentence of 25 years to life on count I. As modified, the judgment of sentence is affirmed. The trial court shall cause an amended and corrected abstract of judgment, so modifying the sentence on count I and also correcting the operative enhancements imposed for prior convictions and prison terms to total six years, to be prepared and distributed to the appropriate authorities.
WE CONCUR: WISEMAN, J. HILL, J.