Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF101713B
RAYE, J.When Romeo Laminero stopped his car at a traffic light, a red car bumped him from behind. Laminero got out to see what had happened and encountered a man with a gun. Laminero got back in his car and drove away, pursued by the car that had struck him. Gunshots rang out and Laminero’s car was hit again, pushed to the center median, and stopped. Defendant Justin Dale Canon sat in the driver’s seat of the other car. Another man, armed with a gun, told Laminero to give him his car. Laminero ran to the other side of the median and the armed man drove away in Laminero’s car.
Defendant was apprehended the next day following a high-speed chase while driving a car that matched the description of the red car that hit Laminero’s. Following a jury trial, defendant was convicted of carjacking, possession of a firearm by a convicted felon, and street terrorism. (Pen. Code, §§ 215, subd. (a), 12021, subd. (a), and 186.22, subd. (a).) The jury also found true allegations of personal use of a firearm (§ 12022.53, subd. (b)) and commission of specified offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court found true as to two counts a prior conviction of a serious felony (§ 1170.12, subd. (b)) and imposed a prison sentence of 42 years 8 months to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, contending (1) the trial court erred in admitting evidence of defendant’s possession of a firearm the day after the incident, (2) insufficient evidence supports the jury’s finding that defendant committed the carjacking for the benefit of a criminal street gang, (3) insufficient evidence supports the primary activities or pattern of conduct required by section 186.22, (4) the court erred in admitting the rap sheets of two fellow gang members, (5) instructional error, (6) the gang expert committed Doyle error, and (7) cumulative error. We shall affirm the judgment.
Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle).
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
On the evening of August 26, 2006, Romeo Laminero left a coworker’s birthday party, accompanied by Karengee Pangilinan and Marissa Ruvalcaba and driving his black Honda Accord. When Laminero stopped at a red light, another car bumped his Honda from behind. As Laminero was getting out of his car, he saw Eliceo Nunez coming toward him with a gun. Laminero got back in the Honda and drove toward the freeway.
As they drove away, Laminero, Pangilinan, and Ruvalcaba heard gunshots. The Honda was bumped again on the passenger side rear door. The vehicle hit the center median and got stuck.
Defendant, the driver of the other car, a red Dodge Neon, positioned his vehicle to prevent the Honda from moving. Nunez got out of the Neon and approached Laminero with a gun. Nunez put the gun to Laminero’s head and demanded the car. Laminero saw a woman exit the Neon while defendant remained in the driver’s seat. Laminero hesitated, and Nunez shoved the gun into his stomach and again demanded the car.
Nunez also pointed the gun at Pangilinan and told her to get out of the car. Pangilinan believed she saw a gun in defendant’s hand, but she “wasn’t too sure.” She saw something in the driver’s hand but was not sure what it was.
After Laminero, Pangilinan, and Ruvalcaba got out of the car, Nunez got in the Accord and drove away. Laminero ran down the street, chasing after his car on foot.
Officer John Black arrived at the scene and interviewed Laminero, Pangilinan, and Ruvalcaba. The officer broadcast descriptions of the suspects and both vehicles.
The Following Day
On August 27, 2006, Officer Michael Sabino observed defendant driving a red car that matched the description broadcast by Officer Black. Officers attempted to stop the car, but defendant drove away, leading them on a high-speed chase.
As he drove, defendant threw a TEC-9 firearm, a black backpack, and several bullets from the car. Officers ceased their pursuit when defendant almost collided with another vehicle. After officers set up a perimeter, they discovered defendant hiding in a trash can.
Officers found the red car had black paint transfer and body damage. A loaded.22-caliber pistol lay on the passenger seat.
Subsequent Events
The next day, August 28, 2006, Detective Craig Smith located Laminero’s Honda a mile or two from where the incident occurred. The Honda had been stripped of some parts, and officers noticed red paint transfer on the side of the car.
Detective Smith interviewed Laminero 11 days after the carjacking. From photo lineups, Laminero identified defendant as the driver of the car and Nunez as the person who aimed a gun at him. Laminero identified the TEC-9 firearm thrown from the red car on August 27 as the weapon Nunez pointed at him during the carjacking.
Nunez’s girlfriend, Krystal Ellis, knew both defendant and his girlfriend, Wendy Milazzo. Milazzo owned a red car, and the day before the carjacking defendant and Nunez drove away in it. The red car defendant abandoned was similar to Milazzo’s car. Although Ellis could not recall if she had seen defendant with a pistol, she had seen Nunez with a.22-caliber pistol. Ellis also knew defendant and Nunez were members of the Sureño gang.
In an interview with Detective Smith, Ellis stated that on the night of the carjacking she saw Nunez in a dark-colored car at her apartment complex. Ellis also stated in the interview that she had previously seen defendant with the two weapons found at the time of his arrest.
Prosecution Case
A jury trial followed. Laminero, Pangilinan, and Ruvalcaba testified regarding the events surrounding the carjacking.
Defendant was charged with codefendant Nunez in the information. Nunez’s separate counts were severed and tried separately.
Detective Jim Ridenour testified as an expert on Hispanic gangs. Ridenour, a peace officer for 12 years, had spent five years as a member of the Stockton Police Department’s gang unit. He also received training in the area of criminal street gangs. Ridenour personally investigated gang-related incidents, interviewed gang members, and was familiar with gangs and their territories.
Ridenour testified the Sureños are an Hispanic gang with 500 to 600 members locally. There are different subsets of the Sureños, based on geographic location.
Both defendant and Nunez had ties to the Bay Area and tattoos of the number 19. Ridenour contacted the San Francisco Police Department and confirmed the existence of the 19th Street Mission District Sureños, a subset of the Sureños.
According to Ridenour, being in a subset of the Sureños did not diminish an individual’s status as a Sureño. The primary activities of the Sureños included homicides, attempted homicides, carjackings, burglaries, possession of firearms, vandalism, and drug sales. Ridenour’s expertise on the Sureño gang was based, in part, on reading reports and talking to fellow officers.
Defendant had admitted to being a Sureño during a previous arrest. Finally, Ridenour opined that the carjacking was a gang-related activity.
Defense Case
Defendant testified in his own behalf. Defendant met Laminero early in August of 2006 and saw him numerous times prior to the incident. Laminero and defendant took drugs together, and Laminero instructed defendant on how to commit fraud.
Defendant provided Laminero with a connection to someone who would strip his car so he could collect the insurance. In exchange, Laminero gave defendant the two guns recovered when defendant was arrested.
At the time of the carjacking, defendant was asleep at his girlfriend’s house. When he awoke the day after the carjacking, defendant went out to steal mail with his girlfriend. The two quarreled and she left.
Defendant fled from police in the red car because he was in possession of firearms and on parole. Defendant had the weapons because he was in an area claimed by the Norteño gang and he needed protection. He knew nothing of the carjacking and pled guilty right away to a charge of possession of a firearm by a convicted felon.
On cross-examination, defendant admitted he and Nunez were members of San Francisco’s 19th Street Sureños. Defendant testified he was not a Sureño when outside of San Francisco. He disputed the gang expert’s description of some of his tattoos as gang tattoos.
Defendant testified that during his incarceration he was attacked by another inmate in the holding cell and was forced to defend himself. According to defendant, Nunez was not there. Defendant wrote “SF 19” on the wall in the other inmate’s blood because the other inmate “got blood on [him].”
Codefendant Nunez also testified. He admitted being a member of the 19th Street Sureños and had been for 15 years. He and defendant became members of the gang as children in San Francisco. Nunez denied participating in the carjacking. He testified he and defendant were involved in an assault on a Norteño inmate in the holding cell because Norteños were a rival gang.
Sentencing
The jury found defendant guilty of carjacking, possession of a firearm by a convicted felon, and street terrorism. The jury found true the special allegations pursuant to sections 12022.53, subdivision (b) and 186.22, subdivision (b)(1) under the carjacking charge. Defendant waived a jury trial on the bifurcated matter of his prior convictions.
The trial court found true the strike prior allegations as to the charges of possession of a firearm by a convicted felon and street terrorism, but found not true the strike prior as to the carjacking count.
The court sentenced defendant as follows: for carjacking, an indeterminate term of 30 years to life, plus a 10-year enhancement for the personal use of a firearm; for possession of a firearm by a convicted felon, a consecutive sentence of one year four months; and for street terrorism, a consecutive sentence of one year four months, for a total term of 42 years 8 months to life.
Defendant filed a timely notice of appeal.
DISCUSSION
Evidence of Incident on the Following Day
Defendant argues the trial court erred in admitting the firearm evidence stemming from the incident on August 27, the police chase the day after the carjacking. According to defendant, Evidence Code section 1101 bars the admission of this evidence because it constituted improper character or disposition evidence. In addition, defendant contends the trial court failed to perform the balancing test required under Evidence Code section 352.
Background
As noted, defendant was charged with possession of a firearm by a convicted felon (§ 12021, subd. (a)), and it was alleged that defendant personally used a firearm (§ 12022.53, subd. (b)).
The prosecution sought to introduce and the defense moved to exclude evidence of the TEC-9 firearm that defendant threw from the car during the high-speed chase on August 27; the car was later found abandoned with a.22-caliber Ruger revolver in the front passenger seat. Discovery of the Ruger led defendant to plead guilty to possession of a firearm by a convicted felon, and he was serving a term for that offense at the time of trial.
The prosecution offered various theories of admissibility. While conceding that whether the gun defendant possessed in the car when arrested on August 27 was the gun used in the carjacking remained in dispute, the prosecution insisted that evidence regarding the gun was relevant to prove defendant “did in fact have a weapon on this night, that would... indicate and negate the theory and the argument... that he doesn’t carry firearms and he wouldn’t have one.” As to evidence of the discarded TEC-9, the prosecution argued the gun could be linked to the TEC-9 used in the carjacking. The prosecutor reasoned that it “[i]t goes to show his possession at some time and the consistency of that weapon, the same weapon that was used during the carjacking... that’s the relevance of it and, obviously, it’s good evidence, that’s why it’s prejudicial.”
The prosecution also argued “[t]he high speed chase and the pursuit goes to consciousness of guilt.” And in closing argument, the prosecution stated: “We are focusing on the night of the 26th of August of 2006. We know that Defendant Canon had weapons in his possession from the evidence, likely the same exact weapons that were used during the course of that carjacking the night before. But he’s not charged with the possession on the 27th. He’s charged with using it and possessing it the night of the 26th, during the course of the carjacking.”
During closing argument, the prosecution also stated defendant threw the TEC-9 out the car window because it had been used in the carjacking and noted it was a distinctive weapon. Defense counsel objected, arguing the statement was not supported by the evidence.
Defense counsel objected, insisting the evidence had no probative value with regard to the current charges and citing the potential prejudicial effect of the evidence confusing the jury and possibly leading to the jury’s inability to separate the two incidents. Defense counsel noted defendant had already been convicted for throwing the gun out the window on August 27. Defense counsel argued that the jury might confuse the gun possession at arrest with the gun possession on the night of the carjacking, even though there was no evidence the same gun was used in both incidents. Further, defense counsel argued that defendant could be convicted in the carjacking case with the evidence from the August 27 incident and his subsequent arrest and guilty plea. According to defense counsel, if the August 27 firearm possession was part of the same course of conduct as the carjacking, then the prosecution of the carjacking count would be barred.
The court instructed the jury that certain evidence was admitted for a limited purpose, and that they “may consider that evidence only for that purpose and for no other.” In addition, the court instructed the jury that defendant’s charge of unlawfully possessing a firearm referred only to the August 26, 2006, incident.
Discussion
Evidence of a person’s character, in the form of specific instances of his or her conduct, is inadmissible to prove the person’s conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) However, evidence that a person committed a crime or some other act is admissible if relevant to prove some fact, such as motive or intent, other than his or her disposition to commit such an act. (Evid. Code, § 1101, subd. (b).)
The admissibility of evidence of uncharged offenses or other acts depends on the materiality of the facts to be proved, the tendency of the uncharged conduct to prove the material fact, and any policy against admission of relevant evidence. To satisfy the materiality requirement, the fact sought to be proved by the uncharged conduct may be either an ultimate fact or an intermediate fact from which such ultimate fact may be inferred. To make this determination, the trial court must ascertain whether the evidence of uncharged conduct logically, naturally, and by reasonable inference establishes that fact. (People v. Thompson (1980) 27 Cal.3d 303, 315 & fn. 14.)
In addition, evidence of uncharged offenses is admissible only if it has substantial probative value. The probative value of the uncharged offense must be weighed against the danger of undue prejudice, confusion of issues, or misleading the jury. (People v. Ewoldt (1994) 7 Cal.4th 380, 404; Evid. Code, § 352.) We review the trial court’s admission of evidence under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Kipp (1998) 18 Cal.4th 349, 369, 371.)
Defendant argues the only relevance of his gun possession on August 27 was as character evidence to prove his gun possession and use on August 26. This view distorts the import of the evidence. The fact that defendant possessed guns might reflect poorly on his character, but that aspersion pales in significance to the fact that the guns he possessed matched the description of guns used in the carjacking. This fact, together with the circumstances of his apprehension, links him to the August 26 carjacking. During the August 27 incident, defendant possessed a gun of the same model as that used in the carjacking, which, when combined with the high-speed chase that ensued, proved consciousness of guilt of the earlier offense.
Defendant argues the admission of the firearm evidence was unduly prejudicial, because the jury found defendant guilty of personal gun use and possession on August 26 when the only evidence presented was that Pangilinan saw “something” in the driver’s hand. According to defendant, “[a]part from the evidence of gun possession on August 27, this scant testimony is all that was submitted to support the gun use enhancement and the possession offense.” We disagree.
In her testimony, Pangilinan stated she was not sure whether defendant had a gun in his hand during the carjacking. However, Pangilinan previously told Detective Smith that she had seen defendant with a gun. Ruvalcaba testified she saw a gun in defendant’s hand but stated defendant approached the car and stood by Pangilinan’s window. This eyewitness testimony, separate and distinct from the firearm evidence from August 27, supported the jury’s finding of gun possession during the carjacking.
The prosecution, in closing argument, emphasized that the possession of a firearm on August 27 could not be the basis for the possession charges alleged against defendant. The trial court also instructed the jury that the charge of unlawful possession of a firearm referred only to the August 26 incident. The trial court did not err in admitting the firearm evidence.
Defendant argues the trial court failed to perform the balancing test required by Evidence Code section 352. However, the trial court considered the potential prejudice of the admission prior to making its determination that the evidence was relevant and there was no potential for jury confusion.
Sufficiency of the Evidence: Carjacking for Benefit of a Gang
Defendant contends the prosecution failed to prove that he committed the carjacking for the benefit of, and with the specific intent to promote, a criminal street gang. According to defendant, the evidence produced by the prosecution was so vague, conclusory, and insubstantial that it is insufficient to support the gang enhancement. Under the prosecution’s approach, defendant argues, every act committed by a person with visible gang tattoos must be deemed to benefit a gang.
Background
During trial, Detective Ridenour testified as an expert on Hispanic gangs. Ridenour described the Sureño gang, its territory, and its mode of operation. The prosecution described the circumstances surrounding the carjacking and asked Ridenour for his opinion as to whether the carjacking was gang related. Ridenour answered, “Yes.”
Ridenour testified he had contacted the San Francisco Police Department to request information about defendant’s tattoos and was told that two of them, the number 19 and the word “mission,” signified membership in the 19th Street Mission Sureños. Defendant also sported a tattoo of “SFM,” standing for San Francisco Mission District; two tattooed “SF” marks; and a landscape of a San Francisco bridge.
In addition, Ridenour testified the number 13 is claimed by the Sureños. Defendant had several number 13 tattoos, as well as tattoos that translated into 13.
According to Ridenour, “gangs commit carjackings or steal cars for the purpose of to use that car to commit crimes. Therefore, if somebody gets a plate or description of the car, it won’t come back to them, it will come back to that victim.” Gang members use guns, Ridenour testified, to intimidate victims, to let victims know that Sureños are violent. Ridenour stated: “They have guns and they can basically boss those people around and take their property with them whenever they want by fear or by force. [¶]... [¶]... whenever a gang member does a violent crime for that gang, it beefs up that gang.” These activities strike fear in the community, fear of violence and crime.
Defendant testified he belonged to the San Francisco 19th Street Mission Sureño gang. His tattoos referred to his gang. Nunez was a fellow gang member.
Discussion
In order to establish a gang enhancement, the prosecution must prove the crime was “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)(1).) In addition, the prosecution must prove the gang (1) is an ongoing association of three or more persons with a common name, or identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated by the statute; and (3) includes members who either individually or collectively have engaged in a pattern of criminal activity by committing two or more of the enumerated offenses during the statutorily defined period. (§ 186.22, subds. (e) and (f); People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).)
These requirements may be met via expert testimony explaining gang psychology and customs. (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509; Gardeley, supra, 14 Cal.4th at p. 617.) A gang expert may render an opinion in response to a hypothetical question as to gang-related activity, so long as the hypothetical is rooted in the facts shown by the evidence. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.)
In reviewing a challenge to the sufficiency of the evidence in support of a gang enhancement, we examine the evidence to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Augborne (2002) 104 Cal.App.4th 362, 371; People v. Johnson (1980) 26 Cal.3d 557, 576.)
Defendant argues Ridenour’s evidence was “lacking sufficient substantial and credible value.” According to defendant, “Detective Ridenour’s testimony was, for the most part, vague speculation about the general habits of gang members. None of the crimes described by the detective were shown to have actually benefitted the gang to which [defendant] belonged, the 19th Street/Mission District gang, or even the Sure[ñ]o umbrella organization.”
Ridenour testified that a carjacking as described in a hypothetical question, based on the facts of this case, would benefit the Sureño gang. Defendant and Nunez, Ridenour stated, were active Sureño gang members and committed the carjacking “to use that car to commit crimes” by making the gang members less traceable. The carjacked car would enable the Sureños to move from one crime scene to another. Ridenour provided substantial evidence, not merely vague speculation as defendant asserts.
Defendant also argues the gang enhancement applies only if the charged offense was committed with the specific intent to assist other criminal conduct by gang members. However, the element of intent is generally proven through circumstantial evidence. Specific intent to benefit the gang is not required. Instead, the prosecution must show defendant possessed 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.)
Here, the evidence revealed defendant participated in the carjacking of Laminero’s car. Ridenour testified such carjackings inure to the benefit of the criminal gang by providing a difficult-to-trace vehicle the gang can use in future crimes. The jury had before it sufficient evidence to find the crime was committed for the benefit of the gang.
Sufficiency of the Evidence of Primary Activities or Pattern of Conduct
Defendant also challenges the sufficiency of the evidence to prove the primary activities of the 19th Street Mission District gang or even of the Sureños in general, or to prove a pattern of criminal conduct by the Sureños that was actually known by defendant. Defendant faults Ridenour for merely listing the primary activities for a gang without any specific supporting evidence for that bare opinion, a practice that would render “just about any crime being deemed a gang-related crime.”
Background
Ridenour testified the Sureño gang came to San Joaquin County in 1991 and has 500 to 600 members in the City of Stockton. Members of Sureño subsets are considered full members of the Sureño gang.
The Sureños’ primary crimes, Ridenour testified, consist of homicides, attempted homicides, carjackings, burglaries, possession of firearms, vandalism, and drug sales. Ridenour also testified Sureños engaged in a pattern of criminal gang activity.
Defendant testified he had been convicted of grand theft, participating in a criminal street gang, assault with a deadly weapon, vehicle theft, illegal possession of a firearm, and stalking.
Discussion
To establish a gang enhancement under section 186.22, the prosecution must establish one of the group’s primary activities is the commission of one or more specified crimes and the group’s members have engaged in a pattern of criminal activity. A pattern of criminal activity is defined as two or more enumerated offenses committed on separate occasions or by two or more persons. (§ 186.2, subd. (e).)
Multiple incidents of criminal activity are not necessary to prove a pattern. A pattern can also be proven by showing that multiple gang members participated in a single incident of criminal activity. (People v. Loeun (1997) 17 Cal.4th 1, 5.)
To establish primary activities under section 186.22, the trier of fact may look to both the past and present criminal activities of the gang. Isolated criminal conduct will not suffice. Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. The primary activities element may be established through expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323; In re Alexander L. (2007) 149 Cal.App.4th 605, 611 (Alexander L.).)
In reviewing the sufficiency of the evidence in support of the gang enhancement, we determine whether there is credible, reasonable evidence from which a rational trier of fact could find the essential elements of the charge or allegation true beyond a reasonable doubt. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Primary Activities
Defendant argues the prosecution did not prove any primary activities with regard to the San Francisco 19th Street Mission District gang, but only submitted proof relating generally to activities of local Sureños with no indication defendant had any connection with them or knowledge of their crimes. This generalized proof, defendant contends, denied him his due process right to be held liable for his own actions, not the actions of others he has never met or of whom he has no knowledge.
Ridenour provided his professional law enforcement experience with gangs. He had investigated a vast number of gang-related crimes, interviewed numerous gang members, and had arrested several hundred gang members. In addition, Ridenour had academic training in gangs.
As for the Sureños, Ridenour was familiar with the gang through his assignment as an intelligence officer for Hispanic gangs. His duties included investigating and obtaining intelligence on all Hispanic gang crimes in Stockton. Ridenour identified gang members and investigated gang-related crimes.
At trial the prosecutor asked: “[I]s one of the gang’s primary activities the commission of any of the... criminal acts listed in Penal Code Section 186.22, sub (b)?” Ridenour responded yes, and listed “homicides, attempted homicides, carjackings, burglaries, possession of firearms, vandalism, and dope sales.” Ridenour also testified that, as a result of the gang’s activities, victims would be reluctant to cooperate with law enforcement, suggesting the gang’s crimes were consistent and not an occasional aberration. Ridenour’s background and expertise provided a backdrop for his testimony as to the Sureños’ primary activities. (Gardeley, supra, 14 Cal.4th at p. 620 [testimony by police expert provided a basis from which a jury could reasonably find the primary activities element was met].)
Such was not the case in Alexander L., supra,149 Cal.App.4th 605, relied upon by defendant. In Alexander L., the defendant was charged with vandalism stemming from his “tagging,” or spray painting graffiti. (Id. at p. 609.) An expert testified graffiti generally benefited a gang. The expert stated he knew the gang had “‘committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) The expert did not testify that the criminal activities comprised the gang’s primary activities, nor did he provide details or any information as to how he acquired the information. (Id. at pp. 611-612.) The court found the testimony lacked sufficient foundation. (Id. at p. 612.)
Ridenour’s testimony suffers no such infirmity. He testified as to his background in investigating the Sureños and gave his opinion as to their primary activities. The testimony was sufficient to establish the element of primary activities.
Pattern of Criminal Activity
Defendant also disputes the sufficiency of the evidence in support of a finding of a pattern of criminal activity. Again, defendant challenges the sufficiency of Ridenour’s testimony regarding the activities of the Sureños.
Ridenour testified about incidents involving Nunez and two other Sureño gang members. One Sureño, Manuel Soto, had been convicted of assault with a deadly weapon. The other, Eric Zapata, had been convicted of murder and voluntary manslaughter. Nunez had been convicted of attempted murder, robbery, and illegal possession of a weapon, and was a documented Sureño gang member. Nunez testified he and defendant had been gang members together since they were “kids.” Defendant testified he had been convicted of grand theft with a gang enhancement in 1998, assault with a deadly weapon in 2001, and vehicle theft in 2006. This evidence established the requisite pattern of criminal gang activity required by section 186.22.
Admission of Rap Sheets
Defendant argues the trial court erred in admitting the rap sheets of Sureños Zapata and Soto. According to defendant, the admission of the rap sheets denied him his right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford).
Background
During Detective Ridenour’s testimony, the prosecution introduced certified copies of Zapata’s and Soto’s criminal rap sheets. Based on the rap sheets, Ridenour testified as to the duo’s criminal convictions. Defense counsel objected, arguing they were unreliable hearsay and a violation of defendant’s constitutional rights. The trial court overruled the objection.
Discussion
In Crawford, supra, 541 U.S. 36, the United States Supreme Court held that the Sixth Amendment’s confrontation clause bars admission of testimonial statements of witnesses absent from trial. An exception exists only if the prosecution establishes that the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford,at p. 59.)
Defendant acknowledges the court in People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas) concluded that Crawford does not apply to the admission of hearsay statements used in support of expert testimony. The Thomas court determined such statements were not offered to establish the truth of the matter asserted, but merely to serve as a basis for the expert witness’s opinion. (Id. at p. 1210.) However, defendant argues Thomas should be reevaluated.
In Thomas, the court held that the confrontation clause did not apply to prevent admission of hearsay evidence in the form of a gang expert’s conversations with other gang members in which they identified the defendant as a gang member. The conversations were mentioned only as a basis for the gang expert’s opinion that the defendant was a gang member. According to the court, “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.” (Thomas, supra, 130 Cal.App.4th at p. 1210.)
We find Thomas persuasive and see no need to revisit the issue. The trial court did not err in admitting the rap sheets of Zapata and Soto.
Instructional Error
Defendant argues the trial court failed to instruct sua sponte that defendant’s mere presence at the scene did not make him an aider and abettor of any crime. In addition, defendant contends, the court improperly instructed the jury to decide whether defendant himself committed the crimes comprising the primary activities of the gang. According to defendant, these errors deprived defendant of a defense and confused the jury.
Background
The trial court instructed the jury on the elements of active participation in a street gang: “To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal street activity; [¶] and [¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.” (CALCRIM No. 1400.)
The court also provided a definition of “pattern of criminal gang activity: “1. The commission of or conviction of any combination of two or more of the following crimes: Murder, Voluntary Manslaughter or Assault with Force Likely to Cause Great Bodily Injury. These offenses are defined elsewhere in these instructions. [¶] 2. At least one of these crimes was committed after September 26, 1988; [¶] 3. The most recent crime occurred within three years of one of the earlier crimes; [¶] and [¶] 4. The crimes were committed on separate occasions, or were personally committed by two or more persons. [¶] The People need not prove that every perpetrator involved in the pattern of criminal gang activity, if any, was a member of the alleged criminal street gang at the time when such activity was taking place. [¶]... [¶] To decide whether the defendant committed attempted murder, shooting at an occupied motor vehicle, mayhem or felon in possession of a firearm, please refer to the separate instructions that I will give you on those crimes.” (CALCRIM No. 1400.) The jury instructions included instructions on possession of a firearm by a convicted felon, the crime defendant was accused of.
Discussion
Trial courts have a sua sponte duty to instruct on the general principles of law relevant to the case. This obligation includes instructions on all the elements of a charged offense, on recognized defenses, and on the relationship of these defenses to the elements of the charged offense. (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) We review claims of instructional error de novo. (People v. Russell (2006) 144 Cal.App.4th 1415, 1424.)
The notes to CALCRIM No. 1400 state: “If there is evidence that the defendant was merely present at the scene or only had knowledge that a crime was being committed, the court has a sua sponte duty to give the [following instruction: If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.]” Defendant faults the trial court for not giving this instruction.
According to defendant, the eyewitness testimony established that defendant was the driver of the red Neon “and did not do much, if anything.” We disagree.
Although defendant reads the evidence selectively, the eyewitness testimony revealed defendant was an active participant in the carjacking. Defendant drove the car that bumped Laminero’s car, forcing it to stop. After Laminero attempted to flee, defendant again bumped the car, once more forcing it to stop. Defendant then positioned the red Neon to prevent Laminero’s driving away. During the carjacking, Pangilinan thought she saw a gun in defendant’s hands. Ruvalcaba stated defendant walked up to the Accord and pointed a gun at them. None of this evidence supports the giving of a mere presence instruction.
Moreover, defendant claimed to not have been present at the scene. He testified he was sleeping at Milazzo’s apartment. A trial court has a duty to instruct sua sponte on particular defenses relied upon or supported by substantial evidence and that are not inconsistent with the defendant’s theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195.) Here, the instruction on mere presence clashes with defendant’s insistence that he was not even present during the carjacking.
Defendant also criticizes the trial court’s inclusion in the instructions the crimes of attempted murder, shooting at an occupied vehicle, mayhem, and possession of a firearm by a convicted felon when the only crime for which proof was submitted was possession of a firearm by a convicted felon. Defendant argues this error resulted in removing an element of the gang crime and the gang enhancement from the jury’s consideration in violation of his constitutional rights.
The People concede the trial court erred in including language of other crimes in the final paragraph of the instruction but argue any error was harmless. We agree.
The instruction as given clearly set forth the elements of active participation in a street gang under section 186.22, subdivision (a). The inclusion of the noncharged offenses did not undermine or negate the accurate preceding instructions. The jury was also instructed that “[s]ome of these instructions may not apply.” The court also instructed the jury to refer to the separate instructions that it would provide for the crimes specified. Since the only separate instruction provided was possession of a firearm by a convicted felon, the other crimes were superfluous and would not apply. Given these circumstances, it is not reasonably probable the jury would have returned a different verdict absent the error. (People v. Rogers (2006) 39 Cal.4th 826, 867-868.)
Doyle Error
Finally, defendant contends the gang expert committed reversible error when he twice testified he had not been able to speak with defendant about the meaning of defendant’s tattoos. Since defendant had invoked his right under Miranda not to speak with the police, the expert’s testimony was a reference to that invocation in violation of Doyle, supra, 426 U.S. 610.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
Background
Detective Ridenour testified regarding defendant’s tattoos. The prosecution asked: “And what, if any, significance does that have? [¶] A. He has a 13 on his middle and index finger -- or middle and ring finger, and a S-R, which I’m not quite sure what that stands for. I haven’t been able to talk to Mr. Canon to find out what that means. [¶] Q. Okay. Does the S and/or the R have any significance separately? [¶] A. Well, it could. I just don’t –- I have never been able to officially talk to Mr. Canon and ask him any questions.”
Defense counsel objected and moved for a mistrial, arguing defendant had invoked his Miranda rights and refused to speak with officers. Ridenour, defense counsel asserted, was referring to the fact that defendant hadn’t spoken with Ridenour or other officers, so references to his exercise of his right to silence was error.
The trial court denied the motion for a mistrial. The court explained: “I’ll tell you, it is a concern to me, because I think... it’s close. Because it does allude to a Miranda situation. [¶] But I thought about it and I’m going to deny it for two reasons. [¶] First of all, I think the language was a bit ambiguous in that, ‘I didn’t get a chance,’ or, ‘I wasn’t able to,’ I think is a little different than ‘He would not speak, he refused to speak,’ something along those lines that would make it a clear Miranda situation versus an accessibility, it may just be a physical accessibility, something like that. [¶] Second of all, and I think this is the most important point to me, was the fact that this was regarding a tattoo. If it was regarding the case, I think I would grant the motion, to be honest with you. If this was regarding his involvement in the case, I think I would grant a mistrial. [¶] But because it was limited to the issue of a tattoo, and a tattoo that was not deemed to even be gang-related, I think for that reason, if there is any error, it’s harmless.”
Discussion
Under Doyle, the United States Supreme Court held a defendant cannot be penalized for invoking his Miranda rights. Doyle prohibits the prosecution from impeaching a defendant’s trial testimony with evidence of the defendant’s silence after being arrested and advised of his constitutional right to silence under Miranda. (Doyle, supra, 426 U.S. 610; People v. Earp (1999) 20 Cal.4th 826, 856.)
A violation under Doyle has two components. The first is that the prosecution uses a defendant’s postarrest silence for impeachment purposes. The second is that the trial court permits that use, giving the jury the unmistakable impression that what the prosecution is doing is legitimate. Both elements are necessary. (Greer v. Miller (1987) 483 U.S. 756, 763-764 [97 L.Ed.2d 618].) There is no Doyle error if there is no attempt to suggest a defendant’s invocation of his right to remain silent was substantive evidence of guilt or to impeach a defense by referring to a defendant’s postarrest silence. (People v. Austin (1994) 23 Cal.App.4th 1596, 1612-1613.)
Defendant argues that although Ridenour did not directly tell the jury defendant had invoked his Miranda rights, Ridenour’s testimony was an “indirect but clear reference to [defendant’s] silence.” We disagree.
Ridenour’s statements came within the context of interpreting one of defendant’s tattoos. In responding to the prosecution’s questions, Ridenour simply stated he hadn’t been able to talk to defendant about the tattoo. When asked about the significance of the “S” and “R” tattoo, Ridenour responded that he hadn’t been able to officially talk to defendant.
Neither response hinted at or alluded to defendant’s invocation of his right to silence. In addition, Ridenour’s testimony centered on the meaning of defendant’s gang tattoos, not on any of the circumstances surrounding the carjacking.
Despite defendant’s attempts to portray the tattoo interpretation as “central to the gang expert’s opinion,” Ridenour’s testimony was only minimally related to the case. Defendant himself testified as to his gang membership. As previously discussed, Ridenour relied on his expertise and experience in investigating Sureño crimes in forming his opinion regarding the gang benefit enhancement. Ridenour did not reference the tattoos in forming his opinion. Nor did the prosecution refer to defendant’s tattoos in closing argument when discussing the gang enhancement.
Given the brief, ambiguous reference to Ridenour’s inability to ask defendant about his tattoos and the tangential connection between the tattoos and the crimes defendant was convicted of, we find the trial court did not err in finding the comments did not constitute Doyle error.
Cumulative Error
Defendant asserts that, taken together, the trial court’s errors were sufficiently prejudicial to require reversal. Since we find any error on the part of the trial court in instructing under CALCRIM No. 1400 was not prejudicial, we find no cumulative error.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.