Opinion
B218795
10-05-2011
THE PEOPLE Plaintiff and Respondent, v. DANIEL ZEPPELLIN CASTRO et al., Defendants and Appellants.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Zeppellin Castro. Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant David Martinez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA054207)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Zeppellin Castro.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant David Martinez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.
Defendants Daniel Castro (Castro) and David Martinez (Martinez) challenge their convictions for one count of first degree murder (Pen. Code, § 187, subd. (a)) and two counts of deliberate and premeditated attempted murder (§§ 187, subd. (a), 664, subd. (a), 1192.7 subd. (c)) with true findings on special firearm use enhancement (§ 12022.53, subds. (b), (c), (d)), and found to have been committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22 subd. (b)(1)(C)). Defendants principally contend that evidence was insufficient to (1) sustain their convictions for attempted murder and support the jury's finding that the attempted murders were premeditated, and (2) impose gang enhancements pursuant to section 186.22. Additionally, they allege that the trial court erred in (3) admitting gang expert testimony, (4) failing to maintain courtroom decorum, and (5) giving instructions to the jury about flight as evidence of consciousness of guilt. We reject all of defendants' claims, and, accordingly, we affirm the trial court's judgment.
All statutory references herein are to the Penal Code unless otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 28, 2006, defendants Castro and Martinez were walking down Kittridge Avenue in Van Nuys, in "Lennox territory," when they encountered a group of four men, including the victim Juan Alonzo (Alonzo). Castro and Martinez were both members of the Tokers gang, while Alonzo was a member of the rival Lennox gang. After Alonzo stated his gang affiliation, Castro, the older gang member, or "OG," directed Martinez to shoot him, which Martinez did. Alonzo suffered four gunshots and died from his injuries. Castro and Martinez then walked back to their car. As Castro and Martinez were driving by the scene of the shooting, Castro pointed his gun at two women who were standing near Alonzo. The gun did not fire but both women heard three "clicks" before Castro and Martinez drove away.
The Los Angeles County District Attorney's Office charged Castro and Martinez with the murder of Alonzo (count 1) and the attempted murders of Elva Diaz (Diaz) and Karen Coreas (Coreas) (count 2 and 3). As to counts 2 and 3, it was alleged that the attempted murders were committed willfully, deliberately and with premeditation. It was also alleged as to all counts: that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)); that a principal personally and intentionally discharged a handgun, proximately causing great bodily injury to Juan Alonzo (§ 12022.53, subds. (d) & (e)(1)); that a principal personally discharged a handgun (§ 12022.53, subds. (c) & (e)(1)); and that a principal personally used a handgun (§ 12022.53, subds. (b) & (e)). It was further alleged that Castro suffered two prior convictions for a serious or violent felony, he suffered one prior conviction for which a prison term was served, and he suffered a conviction for assault with a deadly weapon within the meaning of section 667, subdivision (a)(1).
A. Prosecution Case
1. The Murder of Juan Alonzo
On November 28, 2006, at approximately 2:00 p.m. Elva Diaz and two of her cousins, Karen Coreas, "Solomon," and some other friend were leaving an apartment and getting into a car near the intersection of Hart Street and Hazeltine Avenue in Van Nuys. Diaz and her companions drove off. Solomon was a member of the Sunland Valley gang.
The record does not indicate Solomon's last name.
Two men later identified as defendants Castro and Martinez began to follow Diaz and Solomon in a blue Mustang. Castro and Martinez were both members of the Tokers gang. Solomon, who was driving, attempted to elude Castro and Martinez, and a car chase ensued. A few minutes later, Solomon stopped his car near a McDonald's restaurant, exited the car, approached the blue Mustang, and started speaking with Castro and Martinez. Diaz, who was still sitting inside Solomon's car, testified that she got a "good look" at both defendants. Solomon spoke with them for a few minutes, and returned to his car. Solomon then drove Diaz to her apartment, located near the intersection of Woodman Avenue and Kittridge Street in Van Nuys.
Castro's gang moniker was "Flaco," which means "skinny" in Spanish. Martinez's moniker was "Stomper."
Diaz testified that Solomon seemed "angry" when he returned to the car.
Later that day, at approximately 5:00 p.m., Diaz encountered Castro and Martinez again as she was walking from her apartment to Kittridge Elementary School to go pick up her nine-year-old cousin, Wendy Coreas. Castro and Martinez were standing near a blue colored Mustang, and Diaz recognized them as the same men she saw speaking with Solomon earlier that day. Castro was light-skinned, skinny, wore glasses and had a bald head. Castro also had a tattoo above his eyebrow that read "Tokers." Martinez was darker-skinned, chubby and also had a bald head.
Castro and Martinez approached Diaz and asked for her name and what she did for fun, and Diaz believed they were flirting with her. They walked with her for approximately one block until she entered the school to pick up Wendy Coreas. When Diaz exited the school with Wendy Coreas, Castro and Martinez were waiting for her. They kept following her as she walked back to her apartment.
Diaz's apartment building was located in an area claimed by the "Lennox" gang. Some time during the past few days, someone had written "Lennox 13" on the wall of the carport. Lennox and Tokers territories border each other, and disputes over control of the area near the intersection of Woodman and Kittridge had been going on since 2005. As Diaz, Wendy Coreas, and the defendants approached Diaz's apartment building, Diaz noticed that the "Lennox 13" graffiti on wall of the garage had been crossed out, and the word "Tokers" had been written above it.
At the same time, a group of four men, including the victim Alonzo, exited Diaz's apartment complex. Alonzo and at least two of the three men accompanying him were Lennox gang members. As Alonzo and his three companions approached Diaz, Wendy Coreas and the defendants, Castro asked, "Where are you from?" This question is a common challenge in gang culture and requires the addressee to state his gang affiliation. Alonzo replied, "'I'm Youngster, from Lennox.'" Castro turned to Martinez and told him, "'Take it out and handle it.'" Martinez then took out a gun from underneath his shirt, and fired approximately five shots at Alonzo, hitting him several times. Alonzo fell to the ground while his companions ran away. Castro and Martinez returned to the blue Mustang, which was parked by the school.
At trial, Alonzo was often referred to as "Johnnie." Alonzo's gang moniker was "Youngster."
Diaz testified that she knew the three men as "Jester," "Rocky," and "Peanut."
While Diaz initially said that it was Alonzo who had asked the question, she later testified that she did not remember. Wendy Coreas testified that Castro was the one who asked the question.
The medical examiner who performed Alonzo's autopsy found four gunshot wounds on Alonzo's body, two of which were fatal.
At trial, one of Alonzo's companions, Rocky Davila (Rocky), testified that he was standing next to Alonzo near the stairs of an apartment complex when two men, one skinny, one chubby, approached them. Rocky further testified that the skinny man asked Alonzo where he was from, that Alonzo replied "'I'm Youngster, from Lennox,'" and that the chubby man shot Alonzo three times with a revolver from a few feet away. Rocky then ran away from the shooting.
Rocky could not identify defendants as the men who approached them, but he testified that Castro had the same build as the skinny man, and Martinez had the same build as the chubby man.
Alonzo died from his injuries.
2. The Attempted Murders of Elva Diaz and Karen Coreas
Diaz told Wendy Coreas to go upstairs, and stayed with Alonzo who was bleeding on the sidewalk. Moments later, Coreas, who had just heard the gunshots, ran out of the building and joined Diaz in attempting to help Alonzo.
Diaz and Coreas both saw a blue Mustang approach them from where it had been parked on a street off Kittridge, facing Kittridge and the school. Both women testified that Martinez was driving and Castro was in the passenger seat. The Mustang stopped at the intersection of Woodman and Kittridge facing Woodman, and was behind a car stopped at a red light. The car was in front of Diaz and Coreas. Diaz screamed at Castro and Martinez, "'Why?'" and Coreas yelled at them, "'Fuck you.'" One of the men inside the car replied, "'Fuck you too.'" Castro then pointed a gun out of the Mustang's window, aiming first at Coreas, and then at Diaz. Coreas testified that Castro said, "'Tokers gang'" as he pointed the gun at them. Both women heard the gun click three times, but the gun did not fire. Diaz was scared she would be shot, and ran toward a tree. Castro and Martinez then drove away.
Diaz's cousin Wendy Coreas also testified at trial that she saw Castro and Martinez leave the scene in a blue Mustang.
Rocky also testified that, as he was about to return to Alonzo's location, he saw a blue Mustang drive by with what appeared to be the two men who had just shot Alonzo inside.
3. The Police Investigation
Two or three hours after the shooting, Diaz and Coreas were shown a six-pack photographic lineup, and identified Castro as the man who told Martinez to shoot Alonzo, and as the same man who pointed and clicked the gun at them from the car. Diaz identified Martinez as the man who shot Alonzo, and Coreas identified him as the man who drove the blue Mustang from which Castro pointed the gun at Diaz and her. Wendy Coreas also identified Martinez as resembling the man who shot Alonzo, and Castro as resembling the man she saw earlier with Martinez.
On December 14, 2006, Los Angeles Police Officer Martin Mojarro arrested Castro in Tulare, a city in central California. Castro told Detective Mojarro that he was a member of the Tokers gang, but initially denied knowing anything about Alonzo's shooting. However, he later admitted that he was present when Alonzo was shot. Martinez was arrested on December 15, 2006. Los Angeles Police Detective Linda Lowande documented several tattoos on Martinez's body indicating that he belonged to the Tokers gang.
On December 20, 2006, Detective Mojarro photographed a blue Mustang that was on sale at a car dealership on Sherman Way. The Mustang was previously registered to Maria Mendez, Martinez's mother. Martinez sometimes drove the car. Inside the car, a salesman found an identification card bearing Castro's name and picture.
4 Evidence Concerning Defendants' Gang Affiliation
At trial, Los Angeles Police Officer Clint Weir, a gang enforcement officer testified that he was assigned to monitor the Tokers gang. On March 11, 2006, he encountered Martinez. Martinez had a "'TKS'" tattoo on his upper chest, which Officer Weir explained stood for "'Tokers Southside.'" Los Angeles Police Officer Todd Costello also testified that he spoke with Martinez on November 23, 2006, and that Martinez told him that he belonged to the Tokers gang, and that his moniker was "Stomper."
Los Angeles Police Officer Anthony Smith testified that on September 11, 2006, as he was assigned to the Tokers gang, he encountered Castro during a traffic stop. Officer Smith noted that Castro had several tattoos, including a "'Tokers'" tattoo over his eyebrow, a "'Tokers'" tattoo on his chest, a "'Southside Tokers'" tattoo on his left forearm, and a "13" tattoo near his left thumb. The number 13 refers to the letter "M," which is the 13th letter of the alphabet, and indicates the gang is a Southern California gang affiliated with the Mexican Mafia. Los Angeles Police Officer Leticia Thompson also testified that she encountered Castro in October 2006, during which Castro told her that had been a Tokers gang member for eight years and that his gang moniker was "'Flaco.'" Officer Thompson also described Castro's tattoos, and opined that they were consistent with gang affiliation.
Officer Thomas Appleby from the Los Angeles Police Department testified as the prosecution's gang expert at trial. Officer Appleby was assigned to the gang enforcement detail at the Van Nuys police station. Officer Appleby spent 10 years in Van Nuys, and four years on the gang enforcement detail. Officer Appleby testified that he came into contact with gang members virtually every day during his time in Van Nuys, and that he often spoke with them about their background in the gang, and other gang-related information. Officer Appleby also testified about his training and background as a gang enforcement officer.
In Van Nuys, Officer Appleby was assigned to the Tokers and Lennox gangs, among others. He testified that Lennox territory borders Tokers territory, and that both gangs had territorial disputes since 2005. Officer Appleby explained at trial that since 2005, Lennox has "claimed" the area near the intersection of Woodman and Kittridge, where some gang members live, and which also serves as a hideout for other gang members.
Officer Appleby further testified that a graffiti "cross out" takes place when a gang encroaches upon another gang's territory. By crossing out the other gang's name and inserting its own gang name, the encroaching gang shows its disrespect, and implicitly challenge's the other gang for its territory. Officer Appleby explained that after these cross-outs, acts of violence between rival gangs generally occur. Presented with a photograph of a wall near the intersection of Woodman and Kittridge, where Lennox 13 graffiti was crossed out, and the Tokers name was written above it, Officer Appleby testified that the cross-out indicated, among other things, that Tokers gang members had encroached upon Lennox territory, and were now claiming the territory for themselves.
Officer Appleby explained that the Lennox gang was a very large gang in the Van Nuys area. Officer Appleby also testified that the Tokers gang was one of the smallest gangs in the area, and only consisted of approximately 40 members, 12 of which were active members. Officer Appleby further testified that active Tokers gang members "put in the work" for the gang by tagging the gang's name on a rival gang's wall, committing robberies, and committing assaults with deadly weapons against other gang members, citizens, and law enforcement. The more a gang member "puts in the work," the more tattoos he receives, and the more prestige he enjoys within the gang. The number of tattoos a gang member receives is determined by an old gang member, also referred to as an "OG."
Officer Appleby testified that some of the Tokers' primary activities are felony vandalism, assaults and robberies with firearms, crimes against persons, and some property crimes. Officer Appleby had seen Tokers' graffiti placed on public and private property "spread throughout the valley," but was not specific about the date. He also testified that during the three years preceding trial, the Tokers was a very active gang in the Van Nuys area, and was involved in approximately six major incidents involving violent crimes.
During trial, the prosecutor presented Officer Appleby with documents pertaining to the criminal convictions of two Tokers gang members, one for Oscar Munoz (Munoz) for two counts of armed robbery for offenses occurring in 2006, and the other conviction for Emanuel Tanario (Tanario), one count of robbery for an offense occurring in 2003.The prosecution also presented Officer Appleby with documents related to the criminal conviction of another Tokers gang member, Robert Green (Green), for one count of robbery for an offense occurring in 2003. Officer Appleby testified that he was familiar with Munoz, Tanario and Green, that they were all well-known Tokers gang members, and that he had personal knowledge of their criminal convictions.
Munoz was known as "Listo," and Tanario was known as "Cluer."
Green was known as "Filo."
Officer Appleby further testified that he was familiar with both Castro and Martinez, that he was aware of their different tattoos, and that it was his opinion that they belonged to the Tokers gang. Officer Appleby also expressed his opinion that Castro was an old gang member, or "OG." Officer Appleby based his opinion concerning Castro's membership in the Tokers gang on his own personal contacts with Castro, conversations he had with officers who spoke with Castro in the past, and the fact that Castro was arrested for a crime that was consistent with gang activity. Officer Appleby's opinion about Martinez's membership was based on Martinez's gang tattoos, as well as on the fact that Martinez was arrested for a crime consistent with gang activity. Based on his conversations with Officers Thompson, Costello, Smith, and Weir, Officer Appleby was familiar with the facts surrounding Alonzo's shooting, and the attempted murders against Diaz and Coreas.
In Officer Appleby's opinion, the crimes were committed for the purpose and benefit of the Tokers gang. The shooting sent a very strong message to the Lennox gang that the Tokers were entering Lennox territory, and "tak[ing] . . . out" Lennox gang members, thus showing "total disrespect" for the Lennox gang. Officer Appleby further explained that the graffiti crossed out was almost a declaration of war, and that the crime committed against the victim was similar to an invasion. Further, the attempted shooting of Diaz and Coreas were committed for the benefit of the gang because they spread fear and intimidation throughout the community, and dissuaded potential witnesses from collaborating with the police investigation.
B. Defense Case
Martinez's sister, Patricia Martinez testified for the defense as an alibi witness. She testified that, on the day of the shooting, Martinez arrived at her apartment at approximately 4:00 p.m., and stayed there with her until 7:00 p.m. or 7:30 p.m.
Juan Luis Rosas Alvarez testified as an alibi witness for the defense. Alvarez testified that he arrived at Patricia Martinez's apartment sometime between 5:30 p.m. and 6:00 p.m. on the day of the shooting, and that Patricia Martinez and defendant Martinez were there, watching television.
Dr. Mitchell Eisen testified for the defense about potential problems with eyewitness identifications. He described various phases of memory, explained how people tend to remember distinctive facial features better, and opined that there is a poor correlation between confidence and accuracy.
C. Prosecution Rebuttal
Detective Mojarro testified that he interviewed Martinez on December 15, 2006. During the interview, Martinez told Detective Mojarro that he was with his sister at the mall during the time of the shooting, although Detective Mojarro had not informed him of the date of the shooting. Martinez also denied knowing Castro, or owning a blue Mustang.
D. Verdict and Sentencing
The jury convicted Castro and Martinez as charged, with true findings on the gang and firearm allegations. Castro waived a court trial on his prior convictions, and admitted one strike prior and a prior prison term.
The court sentenced Castro to an aggregate prison term of 120 years to life, calculated as follows: 25 years to life for the first degree murder conviction (count 1) doubled to 50 years pursuant to his strike prior, plus 25 years to life pursuant to the appended firearm enhancement, plus five years pursuant to section 667, subdivision (a)(1); 15 years to life for both counts of attempted murder (count 2 and 3), doubled to 30 years to life pursuant to his strike prior, plus 10 years pursuant to the appended firearm enhancement. The court ordered the sentences for counts 2 and 3 to be served concurrently to each other but consecutively to count 1.
Martinez was sentenced to an aggregate prison term of 65 years to life. He received 25 years to life for the first degree murder conviction (count 1), plus 25 years to life pursuant to the appended firearm enhancement. For the two attempted murder convictions (count 2 and 3), Martinez received two sentences of 15 years to life, to be served concurrently to each other, but consecutively to the first degree murder sentence.
DISCUSSION
I. SUFFICIENT EVIDENCE SUPPORTS DEFENDANTS' CONVICTIONS FOR THE ATTEMPTED MURDERS OF DIAZ AND COREAS
Castro and Martinez contend that the evidence was insufficient to sustain their convictions for attempted murder and to support the jury's finding that the attempted murders were premeditated. Martinez argues that if the evidence is insufficient to convict Castro for attempted murder, Martinez cannot be convicted for the same as an aider and abettor, and there was no evidence he aided and abetted Castro. We find substantial evidence supports their convictions.
Castro complains that respondent argues for the first time on appeal that (1) defendants had a motive to kill Coreas and Diaz to eliminate any witnesses, (2) another possible motive for the attempted murder was to increase defendants' status within their gang, and asks us to disregard these legal arguments that were not made in the trial court. These purely legal arguments regarding motive (which is not an element of the offense) that are supported by facts in the record are permissible on appeal. (People v. Shrier (2010) 190 Cal.App.4th 400, 419.)
A. Standard of Review
When determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We review the entire record in the light most favorable to the judgment to determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.)"'"This standard applies whether direct or circumstantial evidence is involved."'" (People v. Thompson (2010) 49 Cal.4th 79, 113.) "[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (People v. Maury (2003) 30 Cal.4th 342, 403.) "Even when there is a significant amount of countervailing evidence, the testimony of a single witness" can be sufficient to uphold a conviction. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) So long as the "'"'"circumstances reasonably justify the trier of fact's finding, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment."' [Citations.]"'" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal is not warranted unless it appears that "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Attempted Murder
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]" (People v. Lee (2003) 31 Cal.4th 613, 623.) Since there is rarely direct evidence of a defendant's intent, the required intent to kill "may in many cases be inferred from the defendant's acts and [from] the circumstances of the crime." (People v. Smith (2005) 37 Cal.4th 733, 741.) Furthermore, that the gun did not fire does not preclude a finding of intent to kill, and a conviction for attempted murder. (People v. Van Buskirk (1952) 113 Cal.App.2d 789, 793.) The act of firing toward a victim at a close, but not point blank, range "'"in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." [Citation.]' [Citations.]" (Smith, at p. 741.) In People v. Ramos (2004) 121 Cal.App.4th 1194, the defendant armed himself and went to a party at which rival gang members were present. The defendant, who was in the back of the house, ran to the front when he heard one of his fellow gang members was involved in a fight, and pulled the trigger of a gun to shoot at them. Although the gun failed to fire, Ramos found sufficient evidence of intent to kill where a gang member pointed a gun at a group of rival gang members, based on "evidence of planning and motive and the manner of the attempted murder, firing numerous rounds at an occupied vehicle." (Id. at p. 1208.)
Here, sufficient evidence existed for the jury to conclude that Castro intended to kill Diaz and Coreas when he pointed and "'clicked'" the gun at them. Defendants claim that there was no evidence either that Castro believed the gun was loaded when he pulled the trigger, that the gun misfired, or that Castro actually intended to kill the victims as opposed to frighten them. Defendants' contention rests on the erroneous assumption that the prosecution was required to present direct evidence of Castro's intent. However, and as discussed above, the jury was entitled to infer Castro's intent from Castro's own actions and from the circumstances of the crime. (People v. Smith, supra, 37 Cal.4th at p. 741.)
Defendant Castro repeatedly argues that "intent to kill cannot be presumed from the aiming and firing of a gun," citing People v. Ratliff (1986) 41 Cal.3d 675, 695.) Ratliff did not so state, instead reaffirming the principle that intent to kill can be inferred from the circumstances. (Ibid.; see also Evid. Code, § 600, subds. (a) & (b) [defining presumptions and inferences].)
Here, the incident took place a few minutes after Castro had directed Martinez to shoot Alonzo in front of Diaz and outside of Coreas's apartment. As Castro and Martinez were driving by the scene of the shooting, Diaz and Coreas screamed in their direction "'Why?'" and "'Fuck You!'" to which Castro responded by pointing a gun out the window, aiming at both victims in turn, and squeezing the trigger three times. The jury could have inferred from the use of revolver and the previous firing of four or five shots at Alonzo that Castro believed there was still at least one bullet in the gun, and his clicking of the revolver several times supported an inference he did not believe the gun was empty. These facts provided sufficient evidence from which the jury could infer Castro's intent to kill. (People v. Davis (1995) 10 Cal.4th 463, 509.) The fact the evidence was also consistent with the defense's theory at trial that Castro simply intended to frighten the victims does not warrant reversal of the trial court's judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Indeed, Martinez writes in his brief, "[i]t is possible that [Castro] thought the gun was loaded, but it is at least equally likely that he realized the gun was empty." Defendant thus implicitly concedes that the evidence at trial was consistent with the jury's conclusion that Castro intended to kill Diaz and Coreas.
Furthermore, although not required to establish intent to kill, evidence of motive may be probative of such intent. (People v. Smith, supra, 37 Cal.4th at pp. 740-741.) Here, the jury was presented with substantial evidence from which it could infer that Castro intended to kill Diaz and Coreas in order to eliminate witnesses to Alonzo's murder. Indeed, during Alonzo's shooting, Diaz testified that she was standing very close to both Castro and Martinez, that she heard Castro tell Martinez to "'Take it out and handle it,'" and that she saw Martinez take out a gun and shoot Alonzo numerous times. As for Coreas, she had Alonzo's head on her lap as Castro and Martinez drove by the scene of the shooting. She testified that she got "a good look" at both defendants just before Castro pointed and clicked the gun at Diaz and her. From these facts, the jury was entitled to infer that Castro's act of pointing and clicking the gun at both women was motivated by Castro's desire to eliminate witnesses to Alonzo's murder, and was therefore probative of Castro's intent to kill.
Moreover, as it heard Officer Appleby's expert testimony on gangs and gang-related crimes, the jury could also reasonably conclude that Castro's actions were motivated by the desire to increase his own status within the Tokers gang. Officer Appleby testified that gang members earn more prestige within the gang as they "put in the work" for the gang by committing various crimes, including murders. Coreas also testified that Castro said, "'Tokers gang,'" as he pointed the gun out the car's window and aimed at Diaz and her. These facts provided additional evidence from which the jury could infer that Castro specifically intended to kill Diaz and Coreas in order to increase his reputation within the Tokers gang.
C. Jury's Finding of Premeditation
Castro and Martinez claim that even in the event that there was sufficient evidence to support the attempted murder convictions, the evidence was nevertheless insufficient to support the jury's finding that the crimes were premeditated and deliberate. Castro and Martinez specifically allege that the prosecution failed to present any evidence of planning or motive that would have supported the jury's finding of premeditation. We disagree.
"An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) Deliberation and premeditation do not require any particular amount of time. Rather, "'"'[t]he true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' [Citations]"'" (People v. Young (2005) 34 Cal.4th 1149, 1182.)
In People v. Anderson (1968) 70 Cal.2d 15, our Supreme Court set forth three categories of facts that would support a finding of premeditation and deliberation. These categories may support an inference of premeditation where direct evidence of a defendant's state of mind is not available: (1) facts constituting "'planning'" activity, such as acts by the defendant prior to the killing that show the defendant was engaged in activity directed toward and intended to result in the killing; (2) facts about the defendant's prior relationship with the victim from which the jury could reasonably infer a motive to kill; (3) facts about the nature of the killing from which the jury could infer the manner of killing was the result of preexisting reflection and careful thought rather than unconsidered, rash impulses hastily executed. Strong evidence of all three factors will support a finding of premeditation, as will strong evidence of planning or evidence of motive in conjunction with planning and method evidence. (Id. at pp. 26-27; People v. Proctor (1992) 4 Cal.4th 499, 529.)
The Anderson criteria of planning, motive and method are meant to guide reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection. Therefore, no particular Anderson factor need be accorded a particular weight, the factors need not be used in any particular combination, and they are not exhaustive. (People v. Proctor, supra, 4 Cal.4th at p. 529.) The circumstances need only show appellant formed the intent to kill through planning, motive, and the manner of killing. (People v. Sanchez (1995) 12 Cal.4th 1, 34.) Thus, although facts may be consistent with a "'"rash impulse,"'" they may be equally consistent with a deliberate, premeditated decision to kill. The Supreme Court has explained that "'"Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]"' [Citation.]" (People v. Combs (2004) 34 Cal.4th 821, 850.) It is settled law that the reflection necessary to establish premeditation and deliberation is not measured by duration of time because "[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." (People v. Thomas (1945) 25 Cal.2d 880, 900-901.) Thus, the mere fact that defendant may have had little time to deliberate does not require a conclusion that he could not have done so. (Ibid.; see People v. Thomas (1992) 2 Cal.4th 489, 514 [if evidence reasonably justifies the jury's findings, the fact that the circumstances might be reconciled with a different conclusion does not warrant reversal of the judgment].)
Here, evidence was sufficient for the jury to find that the attempted murders of Diaz and Coreas were premeditated. The fact that Castro and Martinez walked back to their car on a nearby street after Martinez shot Alonzo, then drove by the scene of the shooting, stopped at the signal, kept the motor running while Castro pointed and clicked his gun at Diaz and Coreas, suggests planning activity on the defendants' part. Castro and Martinez had the opportunity to reflect on their actions, and as shown via exhibit 1, take other routes of escape down Kittridge Avenue away from the shooting, but nevertheless decided to persist in their criminal conduct by returning to the scene of the shooting, stopping the car, and attempting to kill Diaz and Coreas.
Moreover, as discussed above, the jury was presented with evidence that Castro and Martinez had motive to kill Diaz and Coreas, either to eliminate witnesses to Alonzo's murder, or to increase their status within the Tokers' gang. Such evidence also allowed the jury to conclude that the attempted murders against Diaz and Coreas were the result of preexisting reflection and deliberation on defendants' part.
Finally, the manner in which Castro carefully aimed his gun at Diaz and Coreas in turn, and then squeezed the trigger three times also provided the jury with evidence consistent with a finding of premeditation. Again, considering the evidence in the light most favorable to the prosecution, Castro's conduct was consistent with the jury's finding that the attempted murders were premeditated. We therefore affirm the jury's finding of premeditation and deliberation.
D. Martinez's Aider and Abettor Liability
Martinez correctly argues that if the evidence is insufficient to convict Castro for attempted murder, Martinez cannot be convicted for the same as an aider and abettor. (See People v. McCoy (2001) 25 Cal.4th 1111, 1119-1120.) Martinez also contends that evidence was insufficient for the jury to find him guilty of the attempted murders against Diaz and Coreas as an aider and abettor because he claims that the prosecution failed to present any evidence that he had knowledge of Castro's unlawful purpose when Castro pointed and clicked the gun at Diaz and Coreas, and that he shared Castro's unlawful intent. We find Martinez's contentions are without merit.
Aiding and abetting liability requires, (1) "knowledge of the unlawful purpose of the perpetrator," (2) "the intent or purpose of committing, facilitating or encouraging commission of the crime," (3) an "act or advice[] [that] aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) An aider and abettor must act with knowledge of the criminal purpose of the perpetrator and with the intent or purpose of committing, facilitating, or encouraging commission of the offense. (People v. Beeman (1984) 35 Cal.3d 547, 561.) "[A]n aider and abettor will 'share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (Id. at p. 560.) While mere presence at the scene of a crime or failure to prevent a crime are not alone sufficient to establish guilt as an aider and abettor, such evidence may be considered along with other evidence in making the determination of aiding and abetting. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.) The jury may also consider a defendant's conduct, as well as its relationship with the perpetrator when determining guilt as an aider and abettor. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) "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.)
Here, although no direct evidence showed that Martinez acted with the required knowledge and intent, there was sufficient circumstantial evidence from which a reasonable jury could conclude that he in fact possessed such a mental state. Sufficient evidence supports the jury's conclusion that Martinez knew of Castro's intent to kill Diaz and Coreas, and intended to facilitate the crime by aiding Castro.
Prior to the attempted murders against Diaz and Coreas, Castro directed Martinez to shoot Alonzo after Alonzo had stated that he was a Lennox gang member. Martinez followed Castro's command and shot Alonzo several times. Martinez and Castro then left the scene together and went to their car parked on the nearby side street. When they drove directly back to the scene of the shooting and stopped in front of Diaz and Coreas, Martinez was driving the car from which Castro pointed and clicked the gun at Diaz and Coreas. Martinez left the engine running while Castro pointed the gun at Diaz and Coreas, and only drove away after Castro had clicked the gun three times. Contrary to Martinez's contention that they were fleeing pursuant to a preplanned escape route, trial exhibit 1 demonstrates two other paths of egress which would have taken defendants away from the scene of the crime, and establishes defendants deliberately drove in a direction that would take them past Diaz and Coreas.
Furthermore, there is no evidence that Martinez attempted to prevent Castro from aiming the gun and pulling the trigger, or protested when Castro did so. After Castro clicked the gun three times, he and Martinez drove away together, suggesting a coordinated effort on their part, and further supporting the jury's conclusion that they shared a common criminal purpose. Finally, since Martinez was the shooter in Alonzo's murder, the jury could reasonably infer the he shared Castro's motive to kill Diaz and Coreas in order to eliminate potentially incriminating witnesses.
II. GANG ENHANCEMENTS
Castro and Martinez allege that the gang enhancements must be stricken because the evidence was insufficient for the jury to find one of the Tokers' primary activities was any of the crimes enumerated in paragraphs 1 through 25 of section 186.22, subdivision (e). They further argue the trial court's failure to define the elements of felony vandalism for the jury in CALCRIM No. 1401 was prejudicial error. We disagree.
Section 186.22, subdivision (e) was amended in 2006 (Stats. 2006, ch. 596, § 1) to add additional offenses to the list of predicate offenses, and became effective January 1, 2007, after the commission of the crimes herein. The revision did not affect those crimes listed in paragraphs 1 through 25.
A. Sufficient Evidence Supports Finding of the Tokers' "Primary Activities" for Purposes of the Gang Enhancement Statute
The California Street Terrorism Enforcement and Prevention Act of 1988 defines a "'criminal street gang'" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts enumerated in section 186.22 subdivision (e) of the statute, and which has "a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).)
The gang enhancement requires proof of three elements: (1) that there is an ongoing association involving three or more participants having a common name or common identifying symbol; (2) that the group has as one of its primary activities the commission of one or more statutorily specified crimes, and (3) the group's members either separately or as a group have engaged in a pattern of criminal gang activity. (In re Alexander L. (2007) 149 Cal.App.4th 605, 610-611.)
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.]" (People v. Sengpadychith (2001) 26 Cal. 4th 316, 323 (Sengpadychith).)To establish a gang enhancement under section 186.22, the prosecution must offer evidence that one of the group's "primary activities" is the commission of one or more of the multiple offenses enumerated in section 186.22, subdivision (e), and that the group's members have engaged in a pattern of criminal activity by committing two or more of those predicate offenses within a defined time period. Section 186.22, subdivision (e) enumerates the criminal acts, the commission of which must serve as one of the gang's primary activities. (§ 186.22, subds. (e), (f); People v. Gardeley (1996) 14 Cal.4th 605, 617.) The crimes necessary to establish a pattern within the meaning of section 186.22, subdivision (f) need not be gang related. (Gardeley, at pp. 621-623; In re Alexander L., supra, 149 Cal.App.4th at p. 611.)
"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." (Sengpadychith, supra, 26 Cal.4th at p. 324.) The gang's primary activities also may be proved by expert testimony where the gang expert's opinions are based on conversations with gang members (including the defendant), the expert's own experience investigating gang crime, and "information from colleagues in [the expert's] own police department and other law enforcement agencies. [Citation.]" (Ibid.)As the court explained in People v. Vy (2004) 122 Cal.App.4th 1209, 1223, footnote 9, "because the culture and habits of gangs are matters which are 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact' (Evid. Code, § 801, subd. (a)), opinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. [Citation.] Such an expert—like other experts— may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. [Citations.] Such opinions may also be based upon the expert's personal investigation of past crimes by gang members and information about gangs learned from the expert's colleagues or from other law enforcement agencies. [Citations.]" In Gardeley, the California Supreme Court concluded that gang expert testimony which expressed the opinion that a gang's primary activity was the sale of narcotics and witness intimidation, and based that opinion on "conversations with the defendants and with other [gang] members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies," satisfied the "'primary activities'" requirement of section 186.22. (People v. Gardeley, supra, 14 Cal.4th at p. 620; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1465.)
"Past offenses, as well as the circumstances of the charged crime" are relevant to this question and may be considered by the jury on the issue of the group's primary activities. (People v. Duran, supra, 97 Cal.App.4th at p. 1465; accord, Sengpadychith, supra, 26 Cal.4th at p. 323 ["Nothing in this statutory language [of § 186.22] prohibits the trier of fact from considering the circumstances of the present or charged offense in deciding whether the group has as one of its primary activities the commission of one or more of the statutorily listed crimes"].) We review claims of insufficient evidence regarding gang enhancements by examining the entire record in the light most favorable to the judgment below. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196; People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
Here, defendants complain that the evidence of Tokers' activities came entirely from Officer Appleby, and did not establish they consistently and repeatedly committed crimes enumerated in the statute. For example, they contend, Officer Appleby only testified to the graffiti that is spread throughout much of the valley, which incorrectly defined graffiti under section 594, subdivision (b)(1), and did not establish that the graffiti scrawled by the gang inflicted more than $400 in property damage. Furthermore, defendants argue there was insufficient evidence any of the predicate offenses was gang related; the only evidence before the jury of gang-related crimes consisted of the four episodes of criminal activity by Tokers members over three years, which would not permit a reasonable trier of fact to conclude the gang's primary activities were any of the enumerated offenses.
We disagree. Much like in People v. Gardeley, supra, 14 Cal.4th 605, Officer Appleby's testimony established a reliable foundation for his expert opinion based on his experience as a police officer for 12 years, including 10 years spent in Van Nuys, and four years in the gang enforcement detail there. Officer Appleby detailed for the jury his training and background as a gang enforcement officer, his familiarity with both the Tokers and Lennox gangs, and described his conversations with other gang unit officers who had contact with Castro and Martinez, as well as with other Tokers gang members. Officer Appleby also testified in detail about the crimes committed by Munoz, Tanario, and Green, all of whom he knew to be well-known Tokers gang members. Officer Appleby thus had a reliable foundation for his opinion that the Tokers' primary activity was the commission of felony vandalism, assaults, robberies with firearms, crimes against persons, and some property crimes, including graffiti. Under Gardeley, no more is required.
Even though Officer Appleby's testimony alone provided the jury with sufficient evidence, the prosecution presented additional evidence which further established the "primary activities" requirement of section 186.22 in the form of evidence that three documented Tokers gang members—Munoz, Tanario, and Green—had been convicted of several counts of robbery and armed robbery arising out of incidents within the last three years, all of which are criminal activities enumerated in section 186.22, subdivision (e). Although the record is silent on the issue of whether those particular offenses were gang related in the sense that they benefitted or promoted the defendants' gang, under Gardeley, the prosecution was not required to establish the crimes were gang related. (People v. Gardeley, supra, 14 Cal.4th at pp. 621-623; In re Alexander L., supra, 149 Cal.App.4th at p. 611.)
The circumstances of the case provided additional proof of the Tokers' gang primary activities. Castro and Martinez, both self-admitted Tokers gang members, confronted Alonzo, a Lennox gang member, in an area located on Lennox turf. Castro asked Alonzo, "'Where are you from?'" to which Alonzo responded, "'Lennox,'" thus prompting Castro to direct Martinez to shoot him. Martinez then shot Alonzo several times. Furthermore, as the defendants were driving away from the scene, Castro pointed a gun at Diaz, who had witnessed the shooting, and at Coreas, who was attempting to help Alonzo, and clicked the gun at them, while saying "Tokers gang."
Finally, we point out that contrary to defendants' assertions, the predicate offenses themselves need not be gang related, but need only indicate, as they did here, a pattern of criminal activity. (People v. Gardeley, supra, 14 Cal.4th at p. 622.)
B. Trial Court's Failure to Define the Elements of Felony Vandalism for the Jury
1. Factual Background
Pursuant to CALCRIM No. 1401, the jury was instructed as follows: "A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal: [¶] 1. That has a common name or common identifying sign or symbol; 2. That has, as one or more of its primary activities, the commission of felony vandalism, assault with a deadly weapon, robbery, and murder; [¶] AND [¶] . . . [w]hose members, whether acting alone or together, engage or have engaged in a pattern of criminal gang activity. [¶] . . . [¶] If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was the commission of that crime and whether a pattern of criminal gang activity has been proved." The instruction did not include a definition of the elements of felony vandalism as set forth in section 594. Defendants did not object to the proposed instruction.
CALCRIM No. 1401 contains bracketed language to be given "when the conduct that establishes the primary activity . . . has not resulted in a conviction," and provides that "[t]o decide whether the organization, association or group has, as one of its primary activities, the commission of <insert felony or felonies from Pen. Code § 186.22[, subds.] (e)(1)-(25), (31)-(33)> please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s]."
2. Forfeiture
A claim of instructional error is forfeited on appeal where, as here, the defendants fail to interpose an objection at trial. (People v. Moore (2011) 51 Cal.4th 1104, 1134.)
3. Discussion
Even assuming their claim of error was not forfeited, we reject defendants' arguments. Castro and Martinez contend that, in giving CALCRIM No. 1401, the trial court was required but failed to sua sponte define the elements of felony vandalism because it was one of the crimes inserted in the list of the gang's alleged "primary activities," but had not been established by prior convictions. We find that any error was harmless.
Section 186.22, subdivision (e)(2) defines "felony vandalism" as a predicate offense supporting evidence of a pattern of criminal gang activity; section 594, subdivision (b)(1) defines "felony vandalism" as an offense where the property damage exceeds $400. The bench notes for CALCRIM No. 1401 provide that "the court should . . . give the appropriate instructions defining the elements of crimes inserted in the list of alleged "'primary activities'" . . . that have not been established by prior convictions." The bench notes further provide that the court should "insert one or more of the crimes listed in Penal Code section 186.22[, subdivisions] (e)(1)-(25), (31)-(33) that are alleged to be the primary activities of the gang," citing Sengpadychith, supra, 26 Cal.4th at pp. 323-324. (CALCRIM No. 1401, bench notes.)
In Sengpadychith, supra, 26 Cal.4th 316, the court failed to instruct the jury that in order to trigger the enhancement, the jury had to find one of the gang's principal activities was the commission of one or more statutorily enumerated felonies under section 186.22, subdivisions (e) and (f). (Id. at p. 321.) Given that Sengpadychith involved a complete failure to identify any of the gang's primary activities, rather than a failure to specify the elements of each of the offenses that could serve as a predicate offense, we hesitate to read it as broadly as defendants to require that "felony vandalism" needed to be defined for the jury. Sengpadychith identified the issue to be decided as the "standard of harmless error govern[ing] a trial court's failure to instruct on the requisite primary activities of the [gang]." (Id. at p. 320, italics added.) Thus, to the extent defendants argue the statutory definition of "felony vandalism" needed to be given to the jury, Sengpadychith does not so mandate. Even the bench notes to CALCRIM No. 1401 do not cite Sengpadychith for this requirement, only noting that Sengpadychith requires insertion of two or more crimes from the list of section 186.22, subdivision (e).
Even assuming it was error for the trial court to fail to define the elements of felony vandalism, Sengpadychith found "a trial court's failure to instruct the jury on an element of a sentence enhancement" that increased the penalty for a crime beyond the statutory maximum was reviewed under the Chapman v. California standard of harmless error; otherwise, the standard of prejudice is evaluated under the People v. Watson (1956) 46 Cal.2d 818, 836 standard. (Sengpadychith, supra, 26 Cal.4th at p. 237.) Specifically, Sengpadychith held the Chapman standard (harmless beyond a reasonable doubt) applies when (1) an enhancement adds a separate term of imprisonment in addition and consecutive to the punishment otherwise prescribed for the felony; and (2) when an enhancement operates to increase the punishment for a felony punishable by a determinate term to an indeterminate term of imprisonment for life. (Sengpadychith, supra, 26 Cal.4th at p. 327.) On the other hand, when the court imposes an indeterminate term of life imprisonment, and the enhancement merely increases the minimum a defendant must serve before being eligible for parole, the enhancement does not increase the life term. In this circumstance, any error in imposing the gang enhancement is reviewable under the standard articulated in Watson. (Id. at p. 327.) Here, the firearm enhancements imposed on Castro and Martinez for their convictions for murder and attempted murder convictions pursuant to section 12022.53, subdivision (e)(1) solely increased their eligibility for parole under their life sentences.
Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)
Therefore, applying the Watson standard here, we find it is not reasonably probable the jury would have found differently even if the offense of felony vandalism had been defined, rather than merely inserted, in the instruction: The crime of robbery had been established by the prior convictions of Tokers gang members Munoz, Tanario, and Green, and thus did not need to be defined for the jury. Moreover, since Castro and Martinez were charged with Alonzo's murder, the jury was instructed on the elements of murder pursuant to CALCRIM 520. Felony vandalism, however, even though listed among the "predicate offenses" used to prove the gang's primary activities, was neither established by prior convictions, nor charged in the present case. As discussed above, Officer Appleby's testimony was already sufficient to establish the Tokers gang's primary activities. Moreover, the prosecutor presented evidence that other Tokers gang members had been charged with and convicted of robbery, which further established the gang's "primary activities." Since the jury had sufficient evidence to establish the Tokers' primary activities without considering felony vandalism as a necessary predicate offense, the trial court's failure to define the elements of felony vandalism was harmless under Watson.
Although the crime of assault with a deadly weapon was also listed as one of the "predicate offenses" that the jury could use to establish the Tokers' primary activities, such offense was not proven by any documented Tokers gang member's conviction. Documents introduced by the prosecution indicated that Tanario had been charged with—but not convicted of—assault with a deadly weapon. Therefore, as with felony vandalism, applying defendants' reasoning, arguably the court should have defined sua sponte the elements of the crime of assault with a deadly weapon. Castro and Martinez do not raise the issue in their briefs, but we conclude that, in light of the overwhelming evidence from which the jury could reasonably conclude that the Tokers was a criminal street gang under section 186.22, any error on the part of the trial court was harmless under the standard set forth in People v. Watson, supra, 46 Cal.2d at p. 836.
III. GANG EXPERT TESTIMONY
Castro and Martinez claim that Officer Appleby's testimony at trial as a gang expert usurped the role of the jury by reaching ultimate issues of defendants' intent and guilt. We disagree.
A. Factual Background
During direct examination, the prosecutor presented Officer Appleby with a scenario patterned after the facts relating to Alonzo's murder, and the attempted murders of Diaz and Coreas:
"Q Assuming you have two individuals that are identified in this case that have been identified as Tokers gang members, assume also that you have testimony that a [graffiti] cross out that is consistent or similar to the cross out that is displayed in People's [exhibits] is observed the day of the shooting, and also assume that Juan Alonzo is hit up and asked where is he from and he responds Youngster from Lennox right before an individual says, "'Take it out and handle it,'" and the second individual pulls out a gun and shoots Juan Alonzo or Youngster from Lennox.
"Based on these facts and other facts that you may know regarding this case, do you have an opinion as to whether or not that crime would be a crime committed for the purpose and benefit of the Tokers gang?
"A Yes, I do, sir.
"Q What is the opinion?
"A My opinion is definitely you have the association of two Tokers gang members, an OG who is recently out from prison, a young member who is trying to gain status in the gang who is putting in his work.
"You have the direction, you have two rival gang members that are in a neighborhood they don't belong, they don't live there, they are not visiting there, they really don't work there, they have no real business there.
"They are in a rival gang neighborhood and they approach the rival gang member in broad daylight, walk up to them and the typical challenge of where are you from and, of course, rival gang member is going to come back where they are from, and when that happens there is going to be an act of violence, and then you have the older OG directing the younger gang member to take care of business, which resulted in death.
"Q How is that particular crime going to benefit the Tokers gang?
"A What it is is it sends a very strong message to Lennox that we will come down into your neighborhood, not only into your gang area, we will come to the heart, kind of like the headquarters of where you hang out and we will take you out, and we will have no trouble doing it. Total disrespect for the gang.
"The cross out is almost like a declaration of war, and then the act that is perpetrated on the victim is like an invasion, they come in, they take out the gang member and that sends a message we control your neighborhood, not you.
"Q And in the course of leaving the location, if those same two individuals that have committed the shooting drive by the location and the shot caller now has the firearm, as the original shooter is driving, car stops, and the gun is now pointed at two individuals or two witnesses to the earlier crime, the gun is fired or dry fired in their direction, no bullets come out, do you have an opinion as to whether this act committed by that original shot caller again has any benefit for the Tokers gang?
"A Again, furtherance of the gang. It is kind of adding insult to injury. You have already taken out a rival gang member, now you are leaving basically unmolested, and you add that insult to injury by sticking the gun out and using that fear and intimidation on members of the community whether they are gang members or not, total disregard for public safety.
"Wh[o] that sends a message to is those gang members [who] will come down here again and take care of business. That also spreads that fear and intimidation for all hard working people in that neighborhood who are now afraid to come out of their houses for [fear of] being shot.
"Q Does it send a message to individuals that—let's assume also there were people standing around when this original shooting occurred. That second act of firing the gun or dry firing the gun in their direction, is that sending any type of message to them, those individuals who were witnesses?
"A If they are witnesses, they may not want possibly to be involved in the fear that the next time they come out of their house they may be the one shot from that gun, from those same gang members.
"Q And so, therefore, this promotes or this encourages or this benefits the Tokers gang?
"A Yes, it is the whole point of the gang culture is you control the neighborhood, not the police, not a rival gang, not the citizens, the gang controls the neighborhood. They decide what goes on in the neighborhood.
"Q This will then further their efforts to control that particular area, to quash or take Lennox out of an area they want to be in.
"A They basically—the words used is they punked Lennox. What they did is they went in, they smoked—they took out a Lennox gang member. That is sending the message we'll do that to any other Lennox gang member wherever and whenever we want."
Defense counsel did not present any objection during Officer Appleby's testimony.
B. Discussion
1. Forfeiture
"It is, . . . 'the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.'" (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7, quoting People v. Rogers (1978) 21 Cal. 3d 542, 548.) Here, defense counsel did not object to Officer Appleby's expert testimony at trial. Consequently, defendants' claim is forfeited.
2. Officer Appleby's Testimony Did Not Impermissibly Encompass an Ultimate Issue
Even assuming defendants did not forfeit their argument, "[a] gang expert may render an opinion that facts assumed to be true in a hypothetical question present a 'classic' example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.]" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.) The People are entitled to "'introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.'" (Id. at p. 1550, quoting People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) However, "[a] witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.' [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
Therefore, gang expert testimony is inadmissible when it provides a conclusion about the individual intent and knowledge of the gang members involved in the charged crimes. (People v. Killebrew (2002) 103 Cal.App.4th 644, 658.) In Killebrew, a gang expert opined that every gang member traveling in a convoy of three cars would know there was a gun in two of the cars and would mutually possess those guns. The Killebrew court found that the expert's testimony "was the only evidence offered by the People to establish the elements of the crime [of conspiring to possess a handgun]. As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded." (Ibid.)
The Killebrew court noted that "[a] bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible. The issue has long been a subject of debate. [Citations.] . . . '"We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. . . ."'"(People v. Killebrew, supra, 103 Cal.App.4th at pp. 651-652.) In People v. Gonzalez (2006) 38 Cal.4th 932, 946-947, the court stated, "we read Killebrew as merely 'prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.' [Citations.] . . . 'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth."' [Citations.]" (Id. at p. 946, fn. omitted.) Gonzalez summarized, "there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons." (Id. at p. 946, fn. 3.) A trial court's decision to admit expert testimony is reviewed for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.)
Here, although the prosecutor's testimony skirted the imprecise line of Killebrew and bordered on embracing the ultimate issue of defendants' intent because Officer Appleby mentioned the victim, Alonzo, the specific gangs (Lennox and Tokers) by name and referenced the "two individuals" in this case, our review of the testimony indicates Officer Appleby primarily testified about hypothetical facts and hypothetical defendants. Although he was asked to make assumptions about "two individuals that have been identified in this case that have been identified as Tokers gang members," defendants were not mentioned by name; and Officer Appleby testified regarding generic gang members, remarking on the motivations of an "OG," "a young member," the "shot caller," "the original shooter," or an "older OG." As a result, his testimony did not embrace the defendants' particular intent but the intent of hypothetical gang members. Unlike the gang expert in Killebrew, Officer Appleby did not express an opinion about Castro's and Martinez's specific knowledge or intent, but simply discussed whether the crimes charged were the types of crimes generally committed for the benefit of the criminal street gang based upon the circumstances of the case. While Officer Appleby's testimony allowed the jury to infer that Castro and Martinez had committed the crimes charged with the intent to benefit the Tokers gang, Officer Appleby never expressed an opinion regarding Castro's and Martinez's actual intent, and his testimony was therefore properly admitted.
Even assuming Officer Appleby testified concerning an ultimate fact, any error was harmless under People v. Watson, supra, 46 Cal.2d at p. 836. (People v. Venegas (1998) 18 Cal.4th 47, 93 [Watson standard applies to erroneous admission of expert testimony].) Here, the portions of Officer Appleby's testimony that could be construed as embracing an ultimate fact added little to the other very strong evidence in the record concerning defendants' gang membership, the motivations of gang members, gang territorial issues, and crimes committed by gang members from which the jury could infer the ultimate fact of defendants' motivation. Thus, it is not reasonably probable had Officer Appleby's evidence been excluded that the result in this case would have been different.
IV. COURTROOM DECORUM
Castro and Martinez allege that the trial court's failure to maintain courtroom decorum when a spectator became unruly during trial was prejudicial error, therefore requiring reversal of their convictions. We disagree.
Castro cites numerous out-of-state cases in support of his argument. Out-of-state cases "are not binding on this court." (Episcopal Church Cases (2009) 45 Cal.4th 467, 490.)
A. Factual Background
During trial, Detective Mojarro's testimony was interrupted by a member of the audience saying out loud, "Why did they kill my son?" The spectator then exited the courtroom, and the court took a 15 minute break. The record does not indicate whether there was an off-the-record discussion. After the break, Detective Mojarro resumed his testimony. Neither defense counsel presented an objection to the spectator's remark, or asked the court to admonish the jury to disregard the outburst.
B. Discussion
1. Forfeiture
"A defendant's failure to object to and request a curative admonition for alleged spectator misconduct waives the issue for appeal if the objection and admonition would have cured the misconduct." (People v. Hill (1992) 3 Cal.4th 959, 1000, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Here, defendants' counsel never objected to the spectator's saying out loud in the courtroom, "why did they kill my son?" and never asked the court to admonish the jury to disregard the comment. The spectator's outburst was short and minor, and a prompt admonition would have cured any prejudicial effect the comment may have had on the jury. Defendants' failure to raise a timely objection or to request a curative admonition forfeits their claim on appeal.
2. No Abuse of Discretion
In any event, defendants' claim is meritless.
On appeal, a claim that the trial court's conduct in maintaining courtroom decorum violated the defendants' right to a fair trial is reviewed for abuse of discretion. (People v. Lucero (1988) 44 Cal.3d 1006, 1022.) Absent a finding that the trial court's failure to correct the prejudicial effect of a spectator's outburst was arbitrary, capricious, or absurd, and resulted in a miscarriage of justice, the trial court's decision will not be reversed on appeal. (People v. Albarran (2007) 149 Cal.App.4th 214, 225.)
"Misconduct on the part of a spectator is a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict." (People v. Lucero, supra, 44 Cal.3d at p. 1022.) In determining whether a spectator's conduct was prejudicial, the trial court is afforded "broad discretion," and on appeal, the appellant bears the burden of showing prejudice. (Ibid.)
Here, based on the facts in the record, the trial court did not abuse it discretion when it did not admonish the jury after a spectator said out loud, "Why did they kill my son?" Defendants' briefs cite to cases from Florida and Missouri in support of their claim that the outburst was prejudicial, even though these decisions are not binding on this court. They have failed to show that the spectator's remark was so prejudicial as to threaten their right to a fair trial. The remark was short, and the spectator quickly exited the courtroom. The court then ordered a 15-minute break, after which Detective Mojarro resumed his testimony. At no point did any of defendants' counsel object to the spectator's remark, or request the court to admonish the jury.
Furthermore, even assuming that the trial court erred in failing to admonish the jury, any presumed error was harmless. Indeed, since the spectator's comment clearly referred to Alonzo's shooting, any prejudice caused by the comment must be evaluated in the context of the prosecution's case against Castro and Martinez for Alonzo's murder. Here, the prosecutor presented testimony by several eyewitnesses who all testified that they saw Martinez shoot Alonzo at Castro's direction, and, thus, the spectator's remark did not expose the jury to any fact that had not already been introduced into evidence. In light of the overwhelming evidence of the defendants' guilt, it cannot be said that the trial court's failure to admonish the jury resulted in a miscarriage of justice, and any presumed error on the part of the trial court was therefore harmless.
V. FLIGHT INSTRUCTION
Finally, Castro contends the trial court erred in instructing the jury on flight as evidence of consciousness of guilt. Castro argues that evidence of flight was insufficient in this case to justify giving the instruction, and the instruction permitted the jury to draw an improper inference between his alleged flight and his guilt because it permitted the jury to conclude because he was found in Tulare, he was conscious of his guilt. Finally, Castro claims that because identity was a central issue in the case, a flight instruction was improper, and highly prejudicial. We find that the trial court properly gave the flight instruction, and we reject Castro's claim.
Martinez does not join Castro in this argument.
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A. Factual Background
Prior to instructing the jury with CALCRIM No. 372, Castro objected, and the following colloquy occurred:
"The Court: All right. The only evidence we have is that the defendant—well, I mean the testimony of the witnesses, if you believe it, is that the defendant drove away. We also have the testimony that defendant Castro was up in another county. That may or may not be flight. I guess you can argue it one way or the other on that. It seems to me this would be appropriate.
"[Castro's counsel]: Only after the fact that they left in a car after the incident.
"The Court: And possibly the fact that defendant—there was testimony that defendant Castro left the county. Again, you can make arguments otherwise. The People I guess could argue it. They fled from that. Certainly, there is evidence from the eyewitnesses that they drove away and didn't come back. I guess that is evidence of flight. Is that what you had in mind, Mr. Nunez [the prosecutor]?
"Mr. Nunez: Yes, Your Honor.
"The Court: I think for both those reasons. It can be argued either way. I will keep it as drafted."
During closing argument, the prosecution told the jury "Mr. Castro, defendant one, fled the county. He was arrested in the Central Valley City of Tulare."
Over defendant's objection, the jury was instructed as follows: "If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
B. Discussion
1. Standard of Review
"In reviewing the purportedly erroneous instructions, 'we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' [Citations.] In conducting this inquiry, we are mindful that '"a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge."' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 957 overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
2. The Flight Instruction was Proper
Flight instruction is proper whenever there is evidence that the person who fled was the defendant, and that such evidence is relied upon as tending to show consciousness of guilt. (People v. Roberts (1992) 2 Cal.4th 271, 310.) Here, there was sufficient evidence for the court to instruct the jury on flight as evidence of consciousness of guilt. After Alonzo's shooting, and the attempted murders against Diaz and Coreas, Castro was seen leaving the scene of the crime in a car driven by Martinez. Moreover, Castro was arrested two weeks later, on December 14, 2006, in Tulare, in Central California. As the trial judge properly noted when answering defense counsel's objections to the flight instruction, "we . . . have testimony that defendant Castro was up in another county," and "certainly there is evidence . . . that [the defendants] drove away and didn't come back." Such evidence of Castro's flight was sufficient for the jury to draw an inference that Castro's departure was motivated by guilty knowledge, and that there might have been an alternate explanation for Castro's presence is not decisive in light of the fact that there existed sufficient evidence for the jury to conclude that Castro did in fact flee the scene of the crime.
Further, the language of the instruction clearly limited the use of flight evidence in the jury's determination of Castro's guilt. By stating that, "evidence that the defendant fled or tried to flee cannot prove guilt by itself," the instruction expressly prohibited the jury from inferring Castro's guilt from evidence that he fled the scene.
Moreover, in People v. Mason (1991) 52 Cal.3d 909, the California Supreme Court made clear that a flight instruction is proper even when identity is an issue, so long as "there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt.'" (Id. at p. 943) Here, evidence of Castro's flight consisted of eyewitness testimony identifying Castro as the same man who had directed Martinez to shoot Alonzo, later pointed and clicked a gun at Diaz and Coreas from a car that Martinez was driving, eventually drove away from the scene, and was finally arrested in a different county two weeks later. There was sufficient evidence identifying Castro as the same man who committed the crimes against Alonzo, Diaz and Coreas, and later fled the scene. The instruction was thus properly given.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
CHANEY, J.