Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA080626, Allen J. Webster, Jr., Judge.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Pablo Bernoudy.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant James Bland.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendants Pablo Bernoudy (Bernoudy) and James Bland (Bland) appeal from the judgment entered after a jury convicted them of the first degree murder of Dominguez Prince (Prince) (Pen. Code, § 187, subd. (a)). The jury found true the allegation that Bernoudy personally and intentionally discharged a firearm within the meaning of sections 12022.53, subdivisions (c) and (d), and that he personally used a firearm within the meaning of section 12022.53, subdivision (b). The jury also found true the allegation that in the commission and attempted commission of the murder, a principal was armed with a firearm (§ 12022, subd. (a)(1)), and that the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote the gang (§ 186.22, subd. (b)(1)(A)). The jury found true the allegation that a principal intentionally discharged a firearm proximately causing great bodily injury and death to Prince (§ 12022.53, subds. (d) & (e)(1)), and that a principal personally used and discharged a firearm (§ 12022.53, subds. (b), (c) & (e)).
All further statutory references are to the Penal Code.
The court sentenced each defendant to 50 years to life in state prison, comprised of a 25-year-to-life term for the murder conviction plus a consecutive term of 25 years to life for the firearm enhancement. The trial court stayed the sentence on the gang enhancement.
CONTENTIONS
Bland contends that the trial court erred in denying defendants’ motion to bifurcate the gang enhancement allegation; the trial court erred by misreading Judicial Council of California, Criminal Jury Instructions (2007) CALCRIM No. 1403; the evidence was insufficient to support the jury’s finding that Bland was guilty of murder; the evidence was insufficient to support the jury’s finding that the crime was committed with the specific intent to promote, further, or assist in criminal conduct by gang members; the firearm enhancement should be stricken; and he joins in arguments made by Bernoudy that would accrue to his benefit. Bernoudy argues that the trial court abused its discretion when it refused to bifurcate the gang enhancement and joins in Bland’s contentions that would accrue to his benefit.
FACTS AND PROCEDURAL HISTORY
On August 14, 2005, Theasa Wandick (Wandick), who had been dating Bland for six months, drove from Bakersfield to pick up Bland in Los Angeles. Bland is a member of the Fruit Town Piru gang, a Blood gang. Bland brought his friend Bernoudy, a member of the 87 Gangster Crip gang, with them on the trip back to Bakersfield.
During the ride, Bland showed Wandick his gun, which had a wooden handle. Wandick drove to the apartment of her best friend, Dawayna Phillips (Phillips), who was married to Prince, an ex-Crip gang member. Prince was not there when they arrived. Phillips noticed Bland’s gun and asked him to put it away. Bland replied that he never went anywhere without his gun, and handed it to Bernoudy. Later, Bland put the gun under Wandick’s car seat. Wandick and defendants later complied with Phillips’s request that they leave and checked into a Motel 6 in Bakersfield.
Prince came home and chased Phillips out by throwing things at her. Phillips drove to the Motel 6 and told Wandick that Prince arrived home angry and threw her cellular phone. Bland played with his gun and pointed it at Wandick. With his gun in his lap, Bland told Phillips that if his sister had a boyfriend who treated her like Prince treated her, he would kill him.
The next day, Wandick and defendants attended a barbecue at Phillips’s apartment. During the barbecue, Prince asked Bland and Bernoudy not to use gang terms such as “Blood,” and “Cuz,” in front of the children. Later, Prince became angry at Bernoudy who wanted to buy marijuana while they were at a liquor store. Prince told Phillips he was going to handle defendants outside and looked as if he was getting ready to fight them. Bland told Prince, “I’m not going to let you fuck with my homie.” Prince replied that defendant Bernoudy had “disrespected” him. Defendant Bland again said, “I’m not going to let you fuck with my homie.” The confrontation ended when Wandick stepped between the men.
Later, Prince punched Phillips because she did not prepare him a plate of food. When Wandick ran to the aid of Phillips, Prince grabbed Wandick by the throat, telling Bland, “Come get your girl.” Phillips, Wandick, and the defendants left the barbecue. Phillips complained how tired she was of Prince and how she wished he would die. Bland and Bernoudy offered to kill him. When Phillips told them not to kill Prince, Bland offered to pistol whip him instead. The group returned to Phillips’s apartment where Phillips was struck in the face by Prince and knocked unconscious.
Defendants then accepted Prince’s offer to give them a ride back to Los Angeles. Prince sat in the driver’s seat; Phillips sat in the front passenger seat; Bernoudy sat behind Prince in the second row; Bland sat behind Phillips in the second row; Wandick sat between the defendants in the second row; and five children sat in the third row. Along the way, Phillips and Wandick saw Bernoudy wipe down the handle and window switch of the door next to him with his shirt. The defendants were seen whispering to each other during the ride.
In Los Angeles, they stopped at an apartment where Bland said his cousin lived. Bernoudy and Bland exited the car, and Bernoudy entered an apartment. After they returned to the car, Bernoudy asked Prince to stop the car at 87th Place. Bernoudy did not live on 87th Place. Prince complied and then both defendants exited the car at the same time. Bland walked behind the car to stand near Bernoudy at the driver’s side. Bernoudy shot Prince in the head four times. Defendants then ran away.
Los Angeles Police Department Officer Jason Schwab respondent to a radio broadcast to set up a police perimeter due to a murder. Officer Schwab noticed defendants standing in an alcove. When they saw the officer look their way, defendants began running. Defendants were apprehended and the gun used in Prince’s murder was found nearby.
Phillips identified Bernoudy as the shooter at a field showup and told officers that Prince was an ex-Crip gang member and that he had had verbal disputes with defendants who were gang members. Phillips identified the gun used in the murder as the one that she had seen Bland handle earlier.
At trial, Los Angeles County Sheriff’s Department Detective Q. Rodriguez, a gang expert, opined that Bland is a Fruit Town Piru gang member, whose moniker is “J-Rock.” He based his opinion on Bland’s admission that he is a member of the Fruit Town Piru gang, Bland’s tattoos, his association with other Fruit Town gang members, and the fact that Bland referred to other people as “Blood” at the barbecue. Detective Rodriguez also opined that although unusual, it is possible for Blood and Crip gang members to be friends. Detective John Jamison of the Los Angeles Police Department opined that Bernoudy is an 87 Gangster Crip gang member, based on his tattoos and his admission that he is an 87 Gangster Crip gang member. Bernoudy’s moniker is “Little Spider.” According to Detective Rodriguez, both defendants were disrespected when Prince told them to stop using “gang talk” at the barbecue. “Blood” is a Piru or Blood term and “Cuz” is a Crip term. Bernoudy was disrespected when Bland intervened in the altercation between him and Prince. Bland was disrespected when he told Prince not to hit Phillips, but Prince continued to do so. Detective Rodriguez opined that Prince’s assault on Wandick, Bland’s girlfriend, was a sign of disrespect, as was Prince’s taunt: “Come get your woman.”
Detective Rodriguez explained that one way a gang member gains respect in his own gang is by showing that he is willing to commit violence for the gang. Bland’s reputation would increase by his interference in the fight between Prince and Bernoudy and the murder of Prince. Furthermore, Prince’s murder benefited both Bland and Bernoudy’s reputation within their gang. Detective Jamison opined that news of a killing in Bakersfield which did not reach the ears of fellow gang members would not benefit the killer’s reputation. However, the killer’s reputation would be greatly enhanced if the victim was killed in the very heart of 87 Gangster Crip territory, as occurred here. Moreover, likelihood of escape would be higher in gang territory where the members exerted influence over the surrounding community and had friends who would hide them.
DISCUSSION
I. The trial court did not abuse its discretion by denying defendants’ motion to bifurcate the gang enhancement allegation
Defendants contend that the trial court abused its discretion by failing to bifurcate the gang enhancement allegation because the evidence was minimally probative as to the murder and was unduly prejudicial. They urge that there was no evidence that defendants sought out Prince as a rival gang member. Further, no gang words were exchanged during the crime, and no gang signs were thrown. Rather, defendants contend, the murder was a personal confrontation arising out of Prince’s mistreatment of Phillips. We disagree and conclude that the trial court did not abuse its discretion in denying the defendants’ motion to bifurcate the gang allegation.
The determination of whether to bifurcate issues or limit gang evidence is within the sound discretion of the trial court. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051; Evid. Code, § 1044.) Bifurcation or exclusion of gang evidence is not required when the evidence at issue is relevant and admissible both as to the underlying offense and any gang enhancement. (People v. Hernandez, supra, at pp. 1048-1051.)
The gang evidence was relevant to the charged offense of murder. The evidence showed that Bland is a member of the Fruit Town Piru, a Blood gang. Bernoudy, though a member of the 87 Gangster Crip gang, is a friend of Bland. Prince was an ex-Crip gang member murdered in the heart of 87 Gangster Crip territory. Detectives Rodriguez and Jamison gave relevant testimony regarding territorialism, respect, intimidation, and loyalty which established a possible motive for the crime. The gang experts testified that Prince disrespected Bland and Bernoudy by telling them not to use gang terms at the barbecue. Bland was disrespected when Prince refused to stop the confrontation with Bernoudy and when he grabbed Wandick by the throat and told Bland to “Come get your woman.” Bland repeatedly warned Prince not to “fuck with my homie.” Thus, gang testimony was relevant to explain why Bland would support Bernoudy and would aid and abet Prince’s murder.
The gang testimony also explained that the murder would more likely enhance the reputations of the defendants if Prince was murdered in 87 Gangster Crip territory rather than in Bakersfield, where it might escape fellow gang members’ notice. And, the experts explained that defendants’ chances of escape was greater in the heart of 87 Gangster Crip territory.
Even assuming the trial court erred by denying defendants’ motion to bifurcate, we conclude that any error was harmless, as it is not reasonably probable that a result more favorable to defendants would have been reached if the gang evidence had been bifurcated. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence that defendants committed the murder was overwhelming. Both Wandick and Phillips testified that they saw Bernoudy fire three or four shots at Prince. Bernoudy used the same revolver that Bland had possessed and passed to him at Phillips’s apartment the day before the shooting. Bland offered to kill Prince for Phillips. Phillips and Wandick both saw Bernoudy wrap his hand in his shirt and wipe down the door handle and window switch of the car as they were driving to Los Angeles. Prior to this, defendants had whispered to each other. Moreover, the defendants’ simultaneous exit from the car and flight from the murder scene supports a finding of coordinated effort and consciousness of guilt.
We conclude that the trial court did not err in denying defendants’ motion to bifurcate the gang enhancement allegation.
II. The trial court’s misreading of CALCRIM No. 1403 was harmless error
Bland contends the judgment must be reversed because the trial court committed prejudicial error when it misread CALCRIM No. 1403 to the jury. We disagree with Bland’s argument.
Misreading instructions is at most harmless error when the written instructions received by the jury are correct. (People v. Box (2000) 23 Cal.4th 1153, 1212.)
Here, the jury received an accurate written version of CALCRIM No. 1403 which states that, “You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.” According to the reporter’s transcript, the trial court orally instructed the jury as follows: “You may conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”
Bland concedes that People v. Box, supra, 23 Cal.4th at page 1212 holds that a mistake in the instructions does not require a reversal if jurors have the correct written instructions. But, Bland still contends that “there is nothing in the record to show jurors looked at the correct instruction.” People v. Prieto (2003) 30 Cal.4th 226, 255, however, holds that the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions. We presume the jury followed these instructions, and Bland has not rebutted this presumption. (People v. Boyette (2002) 29 Cal.4th 381, 453.)
Bland complains that no one at trial pointed out the discrepancy in the instructions. But, the record shows that during closing argument, the People argued the correct version of CALCRIM No. 1403, “You don’t convict the [appellants] because they’re gang members, and they’re bad men. That’s not evidence, and that’s not relevant.” During rebuttal argument, the People also argued: “And Ladies and Gentlemen the gang evidence. It’s so funny, both [defense] counsel said that I want to make their clients look dirty, that’s why I bring in gang evidence. . . . I’m not trying to dirty them up. I told you from the beginning, if you think they’re not guilty, you vote not guilty. They are not guilty because they are gang members. They had a huge motive.”
We conclude that the trial court’s misreading of the instruction was harmless error because the jurors received the correct written instructions.
III. The evidence was sufficient to support the jury’s finding that Bland was guilty of murder
Bland contends the evidence was insufficient to support the finding that he was guilty of murder based on an aiding and abetting theory. We disagree with Bland’s argument.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶] . . . But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.” (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) We do not reweigh the evidence; even if the circumstances “might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment.” (People v. Proctor (1992) 4 Cal.4th 499, 529.)
A person aids and abets the commission of a crime when he or she: (1) with knowledge of the unlawful purpose of the perpetrator; (2) and with the intent or purpose of committing, facilitating or encouraging commission of the crime; (3) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Although neither mere presence at the scene of a crime nor the failure to take steps to prevent a crime is alone sufficient to establish that a person is an aider or abettor, such evidence may be considered together with other evidence in determining that a person is an aider or abettor. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.)
The evidence was sufficient to support the jury’s finding that Bland knew of Bernoudy’s intent to kill Prince and that he intended to facilitate the crime by aiding Bernoudy in the commission of the murder. Defendants were gang members, each with a motive to enhance their reputation with their respective gangs by murdering Prince, who had disrespected them. In fact, Bland told Phillips that if he had a sister whose boyfriend treated her the way Prince treated her, he would kill the boyfriend. Then at the barbecue, Bland and Bernoudy had ongoing conflicts with Prince prompting Bland to later offer to kill Prince for Phillips, hours before Bernoudy actually shot Prince.
The jury could infer from the evidence that Bland knew that Bernoudy planned to kill Prince and that Bland intended to facilitate the commission of the crime. Bland possessed a revolver which he allowed Bernoudy to handle. The revolver was identified as the one that was used to kill Prince. Further, the defendants whispered to each other and Bernoudy wiped down the door handles and window switches on the ride home to Los Angeles, leading to an inference that Bland knew of Bernoudy’s intent to kill, intended to encourage the murder, and assisted in the commission of the murder. Bland directed Prince to a location he described as his cousin’s apartment and Bernoudy told Prince to drive to his house on 87th Place, when he actually lived at a different location. The jury could infer by the way defendants simultaneously left the car, and the manner in which Bland walked around the back of the car to Bernoudy’s side, that Bland was aware of, and assisted in, Bernoudy’s plan to kill Prince. Also, after the murder, defendants fled at the same time in the same direction. They also fled together when police looked in their direction.
We reject Bland’s attempt to have us reweigh the evidence by downplaying his confrontation with Prince, his whispered conversation with Bernoudy, his presence at the scene of the murder, his possession of the gun, and his flight from the murder scene.
We conclude that the evidence was sufficient to support the jury’s findings that Bland aided and abetted the murder of Prince.
IV. Sufficient evidence supported the jury’s finding that the crime was committed for the benefit of a gang
Bland next claims there was insufficient evidence to support the jury’s finding that the murder was committed with the specific intent to promote, further, or assist in criminal conduct by gang members under section 186.22, subdivision (b)(1). We disagree with Bland’s contention.
Subdivision (b) of section 186.22 mandates a sentence enhancement when the defendant is “convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. . . .” (§ 186.22, subd. (b).)
“[S]pecific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) The “[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant[s] acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [defendant’s intentional acts combined with her knowledge that those acts would assist crimes by gang members was sufficient evidence of intent for purposes of the gang enhancement]; People v. Morales, supra, at pp. 1198-99 [intent to commit robbery in association with other gang members supported inference of intent to assist criminal conduct by fellow gang members].)
Expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 [expert testimony that drug offense was gang related plus evidence that defendant received permission to sell drugs at a mall from a gang and admission of gang membership constituted circumstantial evidence that defendant intended to benefit gang].)
We disagree with Bland’s contention that the evidence did not show that he had the specific intent to promote the murder by Bernoudy. Defendants were admitted gang members. Expert testimony established that members of different gangs could be friends and that respect is important in gang culture. Expert testimony also established that seeking revenge for a disrespectful act enhances the reputation of a gang member as well as the gang. Here, as previously discussed, the evidence showed that a few hours before the murder, Bland offered to kill Prince; Bland intervened in a confrontation between Prince and Bernoudy; defendants whispered together during the drive to Los Angeles; Bland exited the car at the same time as Bernoudy and walked behind him; and both defendants ran away after Bernoudy shot Prince in the head four times. Moreover, Bernoudy killed Prince deep in the heart of 87 Gangster Crip territory, which the expert testified would facilitate defendants’ escape as well as enhance their reputation.
Nor are we persuaded by appellant’s reliance on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia) for the proposition that section 186.22, subdivision (b)(1) requires specific intent to further other, additional crimes by gang members. Garcia has been rejected by the California courts as a misinterpretation of California law. (People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Hill (2006) 142 Cal.App.4th 770, 774.) Moreover, as a lower federal court decision, Garcia is not binding on this court. (People v. Burnett (2003) 110 Cal.App.4th 868, 882.)
We conclude sufficient evidence supported the jury’s finding that the crime was committed for the benefit of a gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. Accordingly, Bland’s last contention, that the firearm enhancement should be stricken, is rejected.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J. ASHMANN-GERST, J.