Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. BA338630., Mike Camacho, Judge.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant Jason Batchelor.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant Ralph Woo.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephen D. Matthews, Supervising Deputy Attorneys General, and David Glassman, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Jason Batchelor and Ralph Woo of one count of carjacking and one count of second degree robbery, and found true the allegation that Batchelor and Woo committed the offenses for the benefit of a gang. In this joint appeal, Batchelor argues that the evidence was insufficient to support the carjacking conviction, the trial court should have suppressed his admission that he was a gang member, the prosecutor committed misconduct, the court abused its discretion in allowing lay witness testimony by the victim, the cumulative errors denied him a fair trial, and his sentence for robbery must be stayed. Woo argues that the evidence was insufficient to support the carjacking and robbery convictions, and his sentence for robbery must be stayed. We affirm.
BACKGROUND
An information filed June 13, 2008 charged Batchelor and Woo with carjacking in violation of Penal Code section 215, subdivision (a) (count 1), and second degree robbery in violation of section 211 (count 2). The information also alleged that the crimes were violent felonies within the meaning of section 667.5, subdivision (c), and were serious felonies within the meaning of section 1192.7, subdivision (c); a principal was armed with a firearm, within the meaning of section 12022, subdivision (a)(1); and the offenses were committed for the benefit of a street gang, within the meaning of section 186.22, subdivision (b)(1)(C), which caused the offenses to become serious felonies within the meaning of section 1192.7, subdivision (c)(8). The information further alleged pursuant to section 667.5 that Woo had five prior convictions for which he served prison terms. Both Batchelor and Woo pleaded not guilty and denied the special allegations.
Unless otherwise indicated, all future statutory references are to the Penal Code.
The trial court heard and denied Batchelor’s motion to set aside the information pursuant to section 995. The court also denied Woo’s motion to bifurcate the gang allegations. Over objections by Batchelor and Woo, the court granted a prosecution motion to amend the information by interlineations to add a second gang allegation under section 186.22, subdivision (b)(4)(B), and denied Woo’s request for a continuance to file a section 995 motion.
The jury found Batchelor and Woo guilty as charged and found true the special allegations. The court denied their motion for a new trial.
On May 27, 2009, the trial court denied probation and sentenced Batchelor to state prison for a total of 18 years to life. Woo waived a jury trial on the prior convictions, and admitted the truth of three of the convictions and prior prison term allegations. The court denied probation and sentenced Woo to state prison for 21 years to life. Batchelor and Woo each filed a timely notice of appeal.
FACTS
I. Prosecution Evidence: the Offenses and the Arrests
At trial, Jermal Akins testified that at 12:40 p.m. on Saturday, March 15, 2008, he drove with his girlfriend’s daughter, Shanice Diamond, to the Master Burger restaurant in a strip mall on Slauson Boulevard in Los Angeles. Akins parked his 1998 Buick Riviera in front, facing the restaurant. After they entered the restaurant and Akins ordered some food, he sat down and made a cell phone call to a friend.
A black male, later identified as Thomas Barksdale, approached Akins and asked Akins where he was from. Akins understood that to mean “what gang are you from, ” and he replied “‘No, I’m not.’” Barksdale tried to shake Akins’s hand, offering his right hand with his thumb, index finger, and middle finger extended, which Akins recognized as forming the letter “N, ” a symbol for the Neighborhood 60’s or Rolling 60’s street gang (hereinafter the Rolling 60’s). Akins did not know Barksdale and felt he had asked the question with animosity, so he backed up and refused to shake hands.
Barksdale was also charged with count 1 (carjacking) and count 2 (robbery). Before trial, the court suspended proceedings regarding Barksdale, and referred him out for evaluation for mental retardation. Barksdale is not a party to this appeal.
A second male wearing glasses and dreadlocks and with a cast on his arm, later identified as Onyedikachi Ujoumunna, then approached Akins and asked, “‘Where are you from?’” and “‘Is that your car outside?’” Akins answered that he was not affiliated with any gangs, and “yes, that’s my vehicle outside.” Barksdale moved very close to Akins and said, “This is 60’s and I’m about to jack you, ” referring to the Rolling 60’s gang and to an intent to steal or “carjack” Akins’s car. Ujoumunna said, “This is 40’s and... we’re about to jack you.” Barksdale pulled up his shirt and showed Akins the handle of a gun tucked into his waistband, removed the gun and pointed it at Akins’s stomach, and began to pat Akins’s pockets. Akins felt threatened. Barksdale took Akins’s car keys, wallet, cell phone, and money.
Ujoumunna was also charged with count 1 and count 2. During jury selection, the trial court declared a mistrial as to Ujoumunna only. Ujoumunna is not a party to this appeal.
Akins then noticed Batchelor, who “basically prevented me from going outside to get my car. He stood in my face, like preventing me from going outside. He told me if I do, he was going to sleep me. [¶]... [¶] Basically that’s knocking me out.” Woo was with the men. Barksdale left the restaurant with Akins’s keys, and Akins ran behind him trying to “talk him out, let him know this is my car.... [T]rying to like work a deal or something with him, let him know I have to go to work and you could just take my money or my wallet, whatever; just leave my car.”
Outside, Barksdale was running around the parking lot, hitting the chirp button until, following the sound, he ran to Akins’s car and jumped inside. Akins pleaded with him to take his money and leave the car. Batchelor and Woo were both outside. Batchelor repeated that he would knock Akins out if he made a move toward the car. Batchelor was standing on one side of a gray Monte Carlo parked next to Akins’s car, Woo on the other. Akins felt that Woo was with Batchelor, and Akins felt threatened, “like they was going to basically double team me.”
Akins saw Batchelor and Woo get into the gray Monte Carlo parked next to Akins’s car. Barksdale drove Akins’s Riviera to the Shell gas station next door, with Akins running in pursuit. Akins saw a police officer and tapped him on the wrist, and told him his car had been carjacked. The officer drew his gun and chased the car, but it was moving too fast. Akins was too focused on his car to see where Batchelor and Woo went in the Monte Carlo.
The prosecution played a videotape of the events inside Master Burger on March 15, 2008, and Akins confirmed that the video accurately reflected what happened. Akins testified that just as Barksdale entered the restaurant, the video showed Akins looking out the window where he had seen a few men standing outside. Akins identified Batchelor and Woo on the video discs. When Barksdale tried to shake Akins’s hand and made the comment about “jacking” Akins’s car, Batchelor was not inside the restaurant. In the video, Woo was standing at the cashier’s window talking and gesturing with his hand toward the cashier. Batchelor never touched Akins, or tried to block Akins when Akins walked around him to leave the restaurant. Batchelor never said anything about any gang. The police report stated that Akins told a police detective that when Akins said to Woo that Barksdale was taking Akins’s car, Woo said “‘What you gonna to do?’” At the time of trial, Akins could not remember that statement, although it was possible that he told the detective that Woo said that, and he was trying to be accurate. Akins testified, “They was gang members. I was scared and they had a gun.”
Los Angeles Police Department (LAPD) Officer Kevin Payne was working traffic enforcement at Crenshaw and Slauson on March 15, 2008. Officer Payne was off his motorcycle and writing a motorist a ticket in the Shell gas station, when Akins ran up. Akins seemed very scared and excited and said, “Officer, I need some help. I’ve just been carjacked. [¶]... [¶] ‘That’s my car right there, ’” and “He pulled a gun on me, ” pointing to a gold or tan Riviera being driven away. The Riviera had driven right past Officer Payne through the gas station. A gray Monte Carlo was 20 to 30 feet behind. The people in both vehicles were looking at Officer Payne “as if, you know, they were all driving together and they were kind of driving away.” Officer Payne pulled out his gun and pointed it at the cars, yelling at the driver of the Riviera to stop. He could see the driver looking back over his shoulder as he drove south down Crenshaw. Officer Payne called for assistance. After the other units arrived, he stayed with Akins, who was “very frightened, ” to calm him down.
Late in the evening two days later, on March 17, 2008, LAPD Officer Brandon Griffith went to 4130 Leimert in Los Angeles in response to a citizen call reporting an abandoned car. In a nearby alley, Officer Griffith found a stripped vehicle missing the battery and all four wheels, up on blocks. The car was Akins’s Riviera. Akins’s wallet was on the passenger’s seat. Officer Griffith impounded the vehicle and called Akins, who came to the police station to retrieve the car. The car also was missing its rims and two speakers. A forensic print specialist recovered six fingerprints from inside and outside of the Riviera; of the three prints good enough for entry into the LAPD computerized fingerprint system, one print belonged to Akins and the other two did not render a match.
LAPD Detective Gerry Chamberlain interviewed Akins on March 18, 2008. Akins described one of the suspects as “the tall guy with the messed-up teeth” (Batchelor) who told him “if you move, I will sleep you.” On April 3, 2008, Akins circled Batchelor’s photograph, number three in a six-pack photographic lineup, and wrote that he was “100 percent sure, positive” of the identification. On March 25, 2008, Akins circled Woo’s photograph, number two in a different six-pack photographic lineup. On different dates, Akins also identified Ujoumunna and Barksdale in separate photographic lineups.
On April 2, 2008, LAPD Officer Brett Deoliveira was in the vicinity of a residence at 4512 South 2nd Street in Los Angeles with his partners, Officers Fedynich and Gaxiola, working undercover. Officer Deoliveira saw Batchelor, Woo, and Barksdale get out of a silver or gray Monte Carlo and enter the residence. Officer Fedynich told Officer Deoliveira that the house was a Rolling 40’s hangout. Officer Deoliveira called for uniformed police units, which surrounded the house, and Officers Deoliveira, Gaxiola, and Fedynich went over the fence into the back yard. Officer Fedynich saw Barksdale grab his waistband and run into the house. The officers detained Batchelor and Woo behind the house. Barksdale was also arrested. LAPD Detective James Mylonakis had set up a position behind the house, and saw Batchelor, Woo, and Barksdale. Detective Mylonakis searched the house, and found a working.38-caliber two-inch revolver inside a floor heater vent, eight rounds of.38-caliber ammunition under a fish tank, four additional rounds inside the fish tank, and a pyramid speaker box in the bathroom of one of the bedrooms. He observed graffiti on several of the walls, including “R.S.C.” and a spray-painted mitt.
At the police station, while Batchelor was being booked, Officer Fedynich asked Batchelor basic questions to start the booking process, without giving Miranda warnings. Among other questions, Officer Fedynich asked Batchelor “[i]f he’s from a gang and, if so, what his moniker was” and Batchelor responded “he was from the Rolling 40’s Neighborhood Crip Gang, the Avenues clique” and his moniker was “Young Jay.” Officer Fedynich asked the question during the prebooking interview because “if [Batchelor] was from a gang that is currently feuding with another gang, we would let the jailers know these two gangs are in a feud right now, killing each other. Make a note on his cell he’s in so we don’t put a rival gang in there with him, for safety.” Before that date, Officer Fedynich had no information that Batchelor was a Rolling 40’s gang member.
In September or November of 2008, Detective Chamberlain went to the Master Burger location and saw that the building had been freshly painted, with fresh graffiti on a wall. During the trial, Detective Chamberlain took photographs including People’s Exhibit 22, a photograph of Woo which showed tattoos on Woo’s arms, chest and abdomen.
II. Gang Evidence
A. Rolling 60’s (Woo)
Officer Deoliveira testified that the Rolling 60’s Crips gang had 1000 to 1200 members. The gang sign was the Seattle Mariner’s baseball team symbol for “S” which stood for 60’s, and the hand signal was “extending my index finger down, middle finger down, and pointing my thumb to the left, forming an ‘N’” which stood for Neighborhood Crip, and “they’ll just commonly put their hands up, making five fingers and one for six for 60’s.” Their color was blue, and gang territory was 52nd Street to the north, Western to the east, Overhill Street to the west, and 75th Street to the south, all within the City of Los Angeles. The Master Burger was within Rolling 60’s territory. The “Avenues” was one of three subsets of the Rolling 60’s.
If members of rival gangs entered Rolling 60’s territory, there was a chance the interlopers would be assaulted. The Rolling 60’s had allies, including the Rolling 40’s Neighborhood Crips. The Rolling 60’s was involved in murder, attempted murder, robbery, carjacking, vandalism, and narcotics sales. The gangs used graffiti to establish the boundaries of their territories, and a photo of the wall of the Master Burger building showed Rolling 60’s graffiti.
Evidence was introduced of two convictions of Rolling 60’s members, including counts of robbery, attempted murder, and assault. Officer Deoliveira testified that he had arrested Ujoumunna in the past, Ujoumunna had admitted he was a member of the Rolling 60’s with the gang monikers Bodee and Trigger, and Ujoumunna had Rolling 60’s gang tattoos.
Officer Deoliveira had arrested Woo once and had contact with him three or four times. Woo had admitted his membership in the Rolling 60’s to Officer Oliviera, used the moniker “One Shot, ” and had gang tattoos. In Officer Oliviera’s opinion, based on Woo’s admission of membership, other gang members’ statements to Officer Deoliveira, and his tattoos, Woo was a Rolling 60’s member. Officer Deoliveira had not heard of Batchelor before his arrest.
Based on a hypothetical using the facts of this case, Officer Deoliveira opined that the carjacking and robbery were committed for the benefit of the gang, to instill fear in the community and to strengthen the gang and gang alliances.
B. Rolling 40’s (Batchelor)
Officer Fedynich testified that the Rolling 40’s Neighborhood Crips Street Gang had over 700 members. Their signs included “extend[ing] your thumb and next two fingers with your left hand in a horizontal motion that resembles the N.H. for the Neighborhood Crips logo, ” and sticking out four fingers horizontally. Gang symbols included anything with an “F” (for “Forty”) on it such as a Florida Marlins hat. The “Avenues” clique will wear something with an “A” on it. They also used the Milwaukee Brewers’ logo, which is a baseball mitt with the baseball in the middle (“[i]f you count the fingers on the mit[t] there are four fingers; then the baseball in the middle looks like a zero. So it’s a four and a 0”). The gang color was blue. The Rolling 40’s claimed the neighborhood just south of the University of Southern California, and the arrest of Batchelor and Woo took place within Rolling 40’s territory. Their primary activities were crimes ranging from vandalism to attempted murders and murders. Evidence was introduced of two convictions of Rolling 40’s members, for grand theft and felon in possession of a firearm.
Based on the Milwaukee Brewers tattoo on Barksdale’s neck (a Milwaukee Brewers logo), the conversation he had with Barksdale regarding his membership, and where Barksdale was taken into custody (“a well-known Rolling 40’s Neighborhood Crips household”), Officer Fedynich believed Barksdale was a member of the Rolling 40’s. Officer Fedynich believed Batchelor was a Rolling 40’s member based on his admission during the pre-booking interview, where he was arrested, and his associates.
The Rolling 60’s and Rolling 40’s were part of “one big family of Neighborhood Crips.” Their territory shared a common border and “they hang out together, go to functions together, [and] commit crimes together.”
Based on a hypothetical using the facts of this case, Officer Fedynich echoed Officer Deoliveira’s opinion that the carjacking and robbery were committed for the benefit of the gang, to instill fear and intimidation, to further the gang with the stolen vehicle, and to strengthen the bond among the gang members present.
III. Defense Testimony: Batchelor
Batchelor testified in his defense that he went to the Master Burger with Woo on March 15, 2008, arriving in Batchelor’s gray Monte Carlo. Batchelor wanted to get a T-shirt at the store next door and buy something to eat at Master Burger. He saw Barksdale, whom he knew (although not very well). Batchelor had never been a member of the Rolling 40’s, and denied telling an officer after his arrest that he was a member. He had friends in the gang, however, and from time to time still associated with them without participating in any gang-related activities. He had never seen Akins before, and had no plan with Woo, Barksdale, or Ujoumunna to rob him or carjack him.
Batchelor and Woo were standing between Master Burger and the T-shirt store when they noticed people exiting the restaurant and heard a commotion. Batchelor walked inside and saw Barksdale facing Akins as if they were about to fight, but as Batchelor walked closer he realized that Akins was being robbed by Barksdale (“getting his stuff [taken]”). Batchelor was in shock and disbelief. He did nothing to help Barksdale rob Akins, said nothing threatening to Akins inside or outside the Master Burger, and did not try to block him from leaving, nor did he threaten Akins outside or prevent him from getting his car keys back from Barksdale. He did not follow Barksdale in his car, or ride in or participate in stripping Akins’s car. He left the Master Burger in the opposite direction, and he did not try to stop Barksdale because it all happened so fast. When Batchelor went outside to his car, Barksdale was already backing up in Akins’s car.
Batchelor testified that when he was arrested with Barksdale and Woo, he was not participating in any gang-related activity, and did not receive any benefit from the robbery and carjacking. He grew up in the Rolling 40’s area, knew the Rolling 40’s was Neighborhood Crips, knew the hand sign used by the Rolling 60’s, and knew the Rolling 40’s hand signs and symbols. The Burger Master area was a “neutral area” not dominated by any individual gang. Batchelor knew Woo, and based on his tattoos thought Woo was a Rolling 60’s member. He did not know if Barksdale was a Rolling 40’s member, and he did not know Ujoumunna. Batchelor had never before been in the house where he was arrested with Woo and Barksdale on April 2, 2008.
Woo did not present any evidence in his defense.
DISCUSSION
I. Sufficient evidence supported Batchelor’s and Woo’s convictions for aiding and abetting robbery and carjacking.
Batchelor argues that the evidence was insufficient to support his conviction for aiding and abetting the carjacking (count 2). Woo argues that the evidence was insufficient to support his conviction for aiding and abetting the robbery (count 1) and the carjacking (count 2).
Our role in reviewing the sufficiency of the evidence is limited. We review “‘the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Tafoya (2007) 42 Cal.4th 147, 170.) We do not reweigh the evidence or redetermine the credibility of the witnesses (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), and we draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) “‘“‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’” [Citation.]’” (People v. Story (2009) 45 Cal.4th 1282, 1296.)
“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation].” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “‘All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed.’ [Citation.] Accordingly, an aider and abettor ‘shares the guilt of the actual perpetrator.’” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.) “Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.” (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.)
Circumstantial evidence such as presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship with the perpetrator, conduct before and after the crime, and flight from the scene are factors which may be considered in determining that a defendant is guilty of aiding and abetting. (See People v. Jones (1980) 108 Cal.App.3d 9, 15; People v. Salgado (2001) 88 Cal.App.4th 5, 15.) Evidence of only one of the factors may be insufficient. Mere presence at the scene, or knowledge of the crime and failure to prevent it, will generally not suffice. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) This is because “[a]iding and abetting requires a person to promote, encourage or instigate the crime with knowledge of its unlawful purpose. [Citations.]” (People v. Salgado (2001) 88 Cal.App.4th 5, 15 .)
Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Carjacking is “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, ... against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).)
A. Batchelor (carjacking)
Akins testified that inside Master Burger, Batchelor stood close to Akins and prevented him from going outside, telling Akins Batchelor would “sleep” him if he did. Once outside, Batchelor stood on one side of his Monte Carlo (parked next to Akins’s Riviera) and repeated that he would knock Akins out if he moved toward his car.
The prosecution’s brief on appeal states: “One appellant stood on the driver’s side of Akins’ car and the other appellant stood on the passenger side.” A close reading of the cited portion of Akins’s testimony, however, demonstrates that Akins stated that Batchelor and Woo each stood on a side of Batchelor’s Monte Carlo, which was parked next to Akins’s car outside the Master Burger.
Batchelor admits that Akins’s testimony that Batchelor told Akins he would “sleep” Akins, while Barksdale was going through Akins’s pockets at gunpoint, was sufficient evidence to support his conviction for robbery. Batchelor argues, however, that Barksdale and Ujoumunna made their statements that they were “about to jack” Akins before Batchelor was present, so that Batchelor was unaware the two men intended to take Akins’s car. Although Akins also testified that outside the restaurant, Batchelor stood on one side of Batchelor’s Monte Carlo (next to Akins’s Riviera) and repeated that he would knock Akins out if Akins made a move toward the Riviera, Batchelor argues that his repeated threat did not actually aid and abet the carjacking.
We conclude that the evidence was sufficient to establish that Batchelor aided and abetted the carjacking. Akins’s detailed testimony identified Batchelor as present at the scene both inside and outside the restaurant, and described conduct that actively assisted in the commission of the carjacking. Inside Master Burger, while Barksdale was taking Akins’s car keys, Batchelor stood “in my face, like preventing me from going outside” and told Akins if he did go outside, “he was going to sleep me.” This testimony is consistent with the videotape, which shows Batchelor entering the restaurant shortly after Barksdale made the Rolling 40’s gang sign to Akins, standing close to Akins facing him while Barksdale went through Akins’s pockets, and leaving the restaurant a few seconds behind Akins, who followed Barksdale outside. Akins testified that after he followed Barksdale outside in a futile effort to convince him not to take his car, Batchelor stood on one side of Batchelor’s car, next to Akins’s car, and repeated his threat “I’ll sleep you.” Akins testified that he then saw Batchelor get into the gray Monte Carlo with Woo. Officer Payne saw a gray Monte Carlo driving behind Akins’s Riviera “as if they were all driving together.”
The evidence that Batchelor was present at the scene, took steps to assist in the commission of the carjacking by threatening Akins if he went outside, repeated the threat while standing by his car next to Akins’s car, and drove behind Barksdale as Barksdale fled the scene in Akins’s car would allow the jury to infer “concerted action reasonably impl[ying] a common purpose” and “reasonably indicates that [Batchelor] played an affirmative supportive role” in the carjacking. (People v. Campbell, supra, 25 Cal.App.4th at pp. 409, 410.) Further, Barksdale made a gang hand sign and said, “This is 60’s and I’m about to jack you” when he first approached Akins, and there was evidence that Batchelor shared gang membership in the Rolling 40’s with Barksdale, and Woo and Ujoumunna were members of an allied gang (Rolling 60’s). The carjacking took place in Rolling 60’s territory, and Batchelor was arrested with Barksdale and Woo in a Rolling 40’s gang hangout. The jury clearly did not believe Batchelor’s self-serving testimony that he was merely a bystander shocked by the robbery and unaware of the carjacking, and we resolve conflicting evidence in favor of the judgment. (See In re Jose T. (1991) 230 Cal.App.3d 1455, 1460-1461 [sufficient evidence appellant “not merely ‘present’ at the scene” where he approached victim with fellow gang member, stood on opposite side of car while fellow gang member ordered victim out at gunpoint, drove off in victim’s car with fellow gang member, and was driving victim’s car at time of arrest].) Sufficient evidence supports Batchelor’s conviction of carjacking.
B. Woo (robbery and carjacking)
1. Robbery
Akins testified that Woo was with Batchelor and Barksdale in the restaurant. The videotape shows Woo entering the Master Burger and standing between Ujoumunna and Batchelor as Barksdale drew the gun on Akins. As Barksdale backed Akins up, Woo brushed past them to a cashier’s window just to Akins’s left, and appeared to speak with the cashier while Barksdale went through Akins’s pockets. When Barksdale left followed by Akins, Woo turned and appeared to look at Batchelor, turned again and looked outside, and left the Master Burger after Batchelor left, without receiving any food. Akins testified that Woo subsequently took up a position on one side of Batchelor’s gray Monte Carlo and then got into the car with Batchelor, and Officer Payne testified that he saw a gray Monte Carlo driving away behind the carjacked vehicle.
Officer Deoliveira testified that Woo was a Rolling 60’s member. Officer Fedynich testified as a gang expert that members of allied gangs worked together to commit crimes in broad daylight to strengthen their bond and to further the gang by instilling fear in the community. Based a hypothetical posed by the prosecution based on the videotape, the events in the restaurant were four gang members working together to rob Akins, with one (Woo) “distracting the store owner.”
Woo argues that evidence of his mere presence and of his gang membership is not sufficient to support his conviction for aiding and abetting the robbery. The jury also heard Akins’s testimony and saw the videotape, however, and on the basis of all the evidence was entitled to conclude that Woo knew that the robbery was taking place, and with the intent to aid in the robbery, Woo engaged the cashier while Barksdale held a gun on Akins and went through his pockets. Further, there was evidence that Woo came and left with Barksdale, and was arrested with Barksdale and Batchelor at a Rolling 40’s hangout, which is further evidence of his companionship and association with the other participants in the robbery. The jury’s conclusion that Woo was guilty of aiding and abetting the robbery was supported by substantial evidence.
2. Carjacking
Akins testified that in the parking lot, as he tried to regain control of his car, Woo was standing by the car next to his with Batchelor, the guy who said, “I’ll knock you out, ” and Woo said, “if you try to make any type of move, ... I’m going to do something too.” While he could not remember the exact words, Woo said something with “aggression” and “animosity” so that Akins felt threatened, “like they was going to basically double team me.” He then saw Woo get into the Monte Carlo with Batchelor after Barksdale drove away in Akins’s Riviera. Batchelor testified that Woo rode to and from the Master Burger in Batchelor’s Monte Carlo. Woo was a member of the Rolling 60’s gang, allied with Barksdale and Batchelor’s Rolling 40’s gang, and was arrested with Barksdale and Batchelor at a Rolling 40’s hangout.
Woo argues that the only specific evidence that he said anything to Akins was “‘What you gonna to [sic] do?’” the statement reflected in the police report. Woo argues that this statement could not be construed as a threat. Akins testified on cross-examination, however, that he did not remember that specific statement. On redirect, he continued to assert that Woo had made a threatening statement and he felt “it was four guys with a gun, gang members [¶]... [¶] four against one.”
Akins’s testimony and other evidence supports an inference that Woo aided and abetted the carjacking. Woo shared a common gang membership, stood with Batchelor by Batchelor’s Monte Carlo next to Akins’s Riviera, made an aggressive statement that convinced Akins that Woo would prevent him from recovering his vehicle, got into Batchelor’s car, and a similar car was seen leaving the scene behind Akins’s Riviera. The evidence is reasonably consistent with a conclusion that Woo shared a purpose to prevent Akins from regaining control of his car and acted in a supporting role in the carjacking. We will not reverse a judgment where the evidence reasonably supports the jury’s finding, even if the evidence “‘“‘“might also reasonably be reconciled with a contrary finding.”’”’” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Sufficient evidence supports Woo’s conviction of carjacking.
II. The trial court did not err in denying Batchelor’s motion to suppress.
Batchelor argues the trial court erred in denying his motion to suppress his statements, made in response to Officer Fedynich’s questioning during the booking process, that he was a Rolling 40’s gang member with the gang name “Young Jay.” Batchelor contends the statements were taken in violation of his Fifth Amendment right against self-incrimination, because he did not receive the warnings required by Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).
The trial court held a hearing on Batchelor’s suppression motion outside the presence of the jurors. Officer Fedynich testified that on April 2, 2008, he spoke to Batchelor after he was in custody, during prebooking at the police station. Without giving Miranda warnings, Officer Fedynich began to get Batchelor’s basic information, as a “routine we do when we have new arrestees” to verify their identity, and “also for their safety. If they happen to be from a rival gang or have a certain sexuality preference, then we house them accordingly so they are protected.” Officer Fedynich asked Batchelor “if he’s from a gang and, if so, what his moniker was, ” and Batchelor answered “that he was from Rolling 40’s Avenues click [sic] and that his moniker was Young Jay.” The purpose of the question was to avoid placing Batchelor in a cell with a rival gang member.
After argument, the court ruled that the questions occurred during a routine booking interview, and “[t]his response was not based upon an interrogation and, therefore, Miranda is inapplicable and does not apply so it is admissible even though it’s being offered against Mr. Batchelor. The motion to exclude is denied.”
In reviewing the trial court’s denial of Batchelor’s motion to suppress, we review for substantial evidence the court’s factual determination whether interrogation occurred, and “[w]e apply federal standards in reviewing defendant’s claim that the challenged statements were elicited from him in violation of Miranda. [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
Under Miranda, after police officers take a suspect into custody, they may not interrogate the suspect without informing him or her of the right to remain silent and the right to have an attorney present. (Miranda, supra, 384 U.S. at p. 444.) Batchelor was undoubtedly in custody. Nevertheless, for police questioning to be “‘interrogation, ’” it must go beyond questions “normally attendant to arrest and custody, ” i.e., “the police should know [the questions] are reasonably likely to elicit an incriminating response.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [100 S.Ct. 1682, 64 L.Ed.2d 297].) Questions asked about a suspect’s identity in a routine booking interview, however, do not implicate the Fifth Amendment, and Miranda safeguards are not necessary. (People v. Quiroga (1993) 16 Cal.App.4th 961, 967; see Pennsylvania v. Muniz (1990) 496 U.S. 582, 601, 602, fn. 14 [110 S.Ct. 2638, 110 L.Ed.2d 528] [recognizing a “‘routine booking question’ exception” for questions not designed to elicit incriminating admissions] (plur. opn.).) “The test is an objective one, ... the subjective intent of the police, while relevant, is not conclusive.” (United States v. Booth (9th Cir. 1981) 669 F.2d 1231, 1238.)
In U.S. v. Washington (9th Cir. 2006) 462 F.3d 1124, the defendant argued that FBI agents interrogated him when, after he was arrested for bank robbery, they asked him what his gang moniker was. The Ninth Circuit concluded that when the evidence showed that law enforcement routinely gathered gang moniker and gang affiliation information to ensure inmate safety, a “question regarding [defendant’s] gang moniker therefore was a routine booking question.” (Id. at 1133.) This is true even when law enforcement “already had most of his background information, including his gang moniker, ” because “police routinely confirm booking information... [a] desire to confirm the information for booking purposes does not mean that the question constitutes interrogation.” (Id. at 1133, fn. 1.) “Asking about a nickname, even if it is for identification purposes, is no different than simply asking for a suspect’s name. Questions about a person’s identity are not unconstitutional even if identification of the person may help lead to the prosecution of that person for a crime.” (Id. at p. 1133.) Therefore, the statements were admissible even though they had been obtained before giving Miranda warnings. (Ibid.)
The defendant argued that the question about his gang moniker was intended to elicit evidence that the defendant was “‘Rock, ’” the name given by a confidential informant as someone involved in the bank robbery. (U.S. v. Washington, supra, 462 F.3d at p. 1133.)
Officer Fedynich testified that the police routinely ask new arrestees questions to ensure their safety in custody, including questions about gang affiliation and sexual orientation, and that the reason for asking Batchelor his gang affiliation and moniker was to make sure he was not housed with rival gang members. This testimony constituted substantial evidence that the statements Batchelor sought to exclude were in response to questioning intended to elicit routine booking information.
Nevertheless, Batchelor insists that Miranda warnings were required, because when Officer Fedynich asked the questions, he already knew that Batchelor was a Rolling 40’s member because Batchelor was arrested in a Rolling 40’s hangout. Officer Fedynich also knew the robbery and carjacking were alleged to be gang related. Therefore, Batchelor argues that Officer Fedynich’s questioning was intended to elicit incriminating information for use at trial.
We reject that argument. First, its premise is flawed. Standing alone, the location of Batchelor’s arrest did not establish his gang membership in the Rolling 40’s. We note that the evidence showed that Woo, who was arrested in the same Rolling 40’s hangout, was a Rolling 60’s member. In addition, the location certainly gave no indication of Batchelor’s gang moniker. Second, even if the location had firmly established Batchelor’s membership in the Rolling 40’s, the officer’s desire to confirm preexisting information does not transform a routine booking question into interrogation. (U.S. v. Washington, supra, 462 F.3d at p. 1133, fn. 1.) The fact that Officer Fedynich knew the crime was allegedly gang related also does not transform the booking questions into interrogation subject to Miranda, as questions regarding identity are not unconstitutional, even if they may aid in the prosecution of the arrestee. (Ibid.) We repeat that an officer’s intent is relevant, but not dispositive of the issue whether the questions constituted interrogation. (United States v. Booth, supra, 669 F.2d at p. 1238.)
We therefore reject Batchelor’s related argument that the prosecutor committed misconduct by allowing Officer Fedynich to testify falsely at the suppression hearing that he asked the questions for safety reasons, because based on where Batchelor was arrested, Officer Fedynich already knew Batchelor was a Rolling 40’s member. We note that, in any event, Batchelor forfeited this issue on appeal by failing to object at trial. (People v. Wilson (2008) 44 Cal.4th 758, 800.)
We acknowledge that Batchelor’s admission of membership in the Rolling 40’s was an important piece of evidence relevant to whether he aided and abetted in the robbery and carjacking and to the gang enhancement. Akins’s testimony and the videotape, however, provided ample evidence that Batchelor actively participated in the robbery and carjacking, without reference to gang membership. Although gang membership is not essential to prove a gang enhancement under section 186.22, subdivision (b) (In re Ramon T. (1997) 57 Cal.App.4th 201, 206–207), “if substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members. [Citation.]” (People v. Vazquez (2009) 178 Cal.App.4th 347, 353–354.) In this case, however, even without Barksdale’s statement that he was a Rolling 40’s member, there was ample evidence that the robbery and carjacking were committed to benefit the gang, and the jury would have been entitled to infer from Barksdale’s active participation and his arrest in a gang hangout that he shared the intent to benefit the gang.
The trial court did not err in admitting Batchelor’s statements regarding his gang affiliation and gang moniker.
III. The court did not abuse its discretion in admitting Akins’s testimony regarding Batchelor’s gang membership.
Batchelor argues, and Woo joins in his argument, that the trial court abused its discretion in allowing Akins to testify as follows on redirect examination:
“The witness: It was too many guys with a gun. I was scared. I was trying to cooperate. I didn’t want to resist.
“Q. By Mr. Milius: Now, you said a variety of things. Let’s break it down. You said that you were afraid because there was a guy with a gun?
“A. They was gang members. I was scared and they had a gun.
“Q. What about the fact there was more than one of them?
“A. It was four guys with a gun, gang members. It was just too much so I was just trying to cooperate.”
Woo’s counsel objected that the testimony was without foundation, and the court overruled the objection.
Although Batchelor’s counsel did not object, Woo’s counsel did, and Woo joins in Batchelor’s arguments.
Batchelor argues that there was no foundation for Akins’s “lay opinion” that Batchelor was a gang member. We review the court’s decision to permit lay opinion testimony for an abuse of discretion. (People v. Medina (1990) 51 Cal.3d 870, 887.)
We see no abuse of discretion. Akins did not individually identify Batchelor or Woo as a gang member. Instead, he testified that he was frightened because Barksdale had a gun and he believed that “they” were gang members. “A lay witness may testify to an opinion if it is rationally based on the witness’s perception and if it is helpful to a clear understanding of his testimony.” (People v. Farnam(2002) 28 Cal.4th 107, 153; Evid. Code § 800.) Akins’ opinion that “they” were gang members was rationally based on his personal observation that Barksdale asked “where are you from, ” made a gang sign and said “this is 60’s”; Ujoumunna asked “where are you from, ” and “this is 40’s”; and Akins’s reasonable perception that all four men together were intimidating and threatening him to accomplish the robbery and carjacking in a restaurant and a parking lot in Rolling 60’s territory.
Further, there was ample evidence of Batchelor’s gang membership (his answers to the prebooking questions) and Woo’s as well (self-admission to Officer Oliveira, gang tattoos), and therefore even if there was error in allowing Akins’s statements, it was harmless. (See People v. Jablonski (2006) 37 Cal.4th 774, 823.)
Because we reject Batchelor’s individual claims of error, we reject his contention that cumulative error requires reversal of his conviction.
IV. Substantial evidence supports the imposition on Batchelor and Woo of consecutive sentences for carjacking and robbery.
Batchelor and Woo both argue that the trial court violated section 654 when it imposed consecutive sentences for carjacking and robbery. Although neither Batchelor nor Woo’s counsel objected to the sentence on this ground, a trial court’s failure to stay a sentence when section 654 applies results in an unauthorized sentence, and therefore no objection is necessary to preserve a challenge on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” “Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.... Section 654 does not allow any multiple punishment, including either consecutive or concurrent sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591–592.) “Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) “[M]ultiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm, ” and separate sentences may be imposed on offenses that are divisible in time. (People v. Felix (2001) 92 Cal.App.4th 905, 915.) The question whether Batchelor and Woo held more than one criminal objective is one of fact for the trial court, and we will uphold the trial court’s conclusion if supported by any substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) “‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments, ] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’” (People v. Coleman (1989) 48 Cal.3d 112, 162.) The determination whether section 654 applies is factual, and “will not be reversed unless unsupported by the evidence presented at trial.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
The trial court did not make a specific finding that section 654 did not apply, but we imply such a finding when consecutive sentences are imposed. “In the absence of any reference to Penal Code section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective.” (People v. Tarris (2009) 180 Cal.App.4th 612, 626.)
“[C]arjacking is not a lesser offense included within robbery, ” so that a defendant may properly be convicted of both offenses. (People v. Green (1996) 50 Cal.App.4th 1076, 1084.) Whether a defendant may be punished for both offenses, however, is a separate issue. The carjacking statute, provides in section 215, subdivision (c): “This section shall not be construed to supersede or affect Section 211 [robbery]. A person may be charged with a violation of this section and Section 211. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.” Batchelor and Woo argue that there is no evidence they harbored different criminal intents and objectives. They reason that their robbery and carjacking of Akins was a single indivisible act with the same criminal intent and objective, so that section 215, subdivision (c) and section 654, subdivision (a) required that the trial court stay their sentences for robbery.
Substantial evidence supported the trial court’s implicit factual finding that the robbery and carjacking were separate acts with separate objectives. The robbery took place inside the Master Burger, where Barksdale held a gun on Akins and went through his pockets, taking his cell phone and his wallet in addition to his car keys, aided and abetted by Ujoumunna, Batchelor, and Woo. The carjacking took place outside, after Barksdale left the restaurant and went to Akins’ car, followed by Akins. Batchelor and Woo also left the restaurant, and again threatened and intimidated Akins. Barksdale then drove the car away as Akins pleaded with him not to take it. Certainly there were two separate acts of depriving Akins of his property by force and fear. The taking of Akins’s personal property from his person by force or fear (§ 211) occurred when Barksdale emptied Akins’s pockets of his wallet, cell phone, and car keys inside the restaurant, and moved the personal property a short distance. “‘To satisfy the asportation requirement for robbery, “no great movement is required, and it is not necessary that the property be taken out of the physical presence of the victim.” [Citation.]’” (People v. Lopez (2003) 31 Cal.4th 1051, 1060.) The taking of a motor vehicle from Akins’s immediate presence by force or fear (§ 215) occurred outside in the parking lot when Barksdale drove the car away with Akins standing by helplessly. The carjacking was completed in the parking lot, as asportation is also an element of carjacking, requiring some (at least slight) movement of the vehicle from the victim’s person or immediate presence. (Lopez, at p. 1063.)
Batchelor and Woo aided and abetted the robbery in the Master Burger. Although the carjacking occurred shortly after the robbery, there was a break in the action making the events divisible in time, giving Barksdale a chance (albeit brief) to reflect before deciding to drive the car away, and Batchelor and Woo a chance to reflect before deciding to threaten Akins again in the parking lot. There is no doubt that each offense created a new risk of harm. The robbery at gunpoint created a risk of harm inside the restaurant to Akins and other patrons. The carjacking created a second and separate risk of harm outside in the parking lot to Akins and any bystanders, as the armed Barksdale drove Akins’s car away from the protesting Akins, while Batchelor and Woo confronted him. While one of the ultimate objectives was to “jack” Akins’s car, the evidence reasonably supported the conclusion that the robbery and the carjacking were not a single indivisible act.
Batchelor and Woo cite People v. Dominguez (1995) 38 Cal.App.4th 410, where the court of appeal concluded that substantial evidence supported the trial court’s conclusion that section 654 applied because “the carjacking and robbery here constituted ‘the same act.’” (Id. at p. 420.) The defendant entered the victim’s van, put a gun to his neck and demanded “‘everything he had’”; the victim handed over his jewelry and fled the van without looking back. The van was later found missing and was recovered less than a mile away. (Id. at pp. 415, 420.) The court of appeal construed the evidence in the light most favorable to the trial court’s conclusion that the act of robbery and carjacking took place simultaneously, during the single confrontation between the defendant and the victim inside the van.
In this case, we construe quite different facts in which the defendants confronted the victim twice in different locations, in favor of the trial court’s implicit finding that the robbery and carjacking were separate crimes. The evidence reasonably supports a conclusion that the perpetrators had time to reflect between the robbery and the carjacking, and that each offense presented a separate risk of harm. Substantial evidence supported the conclusion that section 654 did not bar consecutive sentences for carjacking and robbery.
DISPOSITION
The judgments are affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.