Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA282476, Norman Shapiro, Judge.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Zenaida Christina Cordova appeals from the judgment entered following her convictions by jury on two counts of carjacking (Pen. Code, § 215; counts 1 & 4) with a finding as to count 1 that appellant personally used a firearm (Pen. Code, § 12022.53, subd. (b)), count 2 – kidnapping to commit carjacking (Pen. Code, § 209.5), and count 3 – kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)) with findings as to each offense that appellant committed it for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). The court sentenced appellant to prison for an unstayed term of 30 years to life. Appellant claims the trial court committed trial and sentencing errors. We affirm the judgment in part, reverse it in part, vacate the sentence, and remand for resentencing with directions.
FACTUAL SUMMARY
1. People’s Evidence.
a. The Crimes Against Johnson (Counts 2 through 4).
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 9:30 p.m. on April 13, 2005, Bryan Johnson parked his car in a well-lit parking lot on Highland, north of Franklin, near the Hollywood Bowl. People’s exhibit No. 5 consisted of photographs depicting Johnson’s car. According to Johnson, the parking lot was pretty full. Johnson remained in his car and left its engine running while he spoke on his cell phone.
Appellant approached in a black Mercedes which contained two male passengers. She asked Johnson for driving directions and, after he provided them, she drove away. However, appellant returned shortly thereafter, asked for further directions, and asked if Johnson could drive one of appellant’s passengers to a party. Johnson declined. Appellant drove her vehicle forward and tried to block Johnson’s car, then appellant drove away.
Seconds later, Edward Valdez, who had been one of the passengers in appellant’s car, opened the door to Johnson’s car and pointed a gun at him. A second male, who had been one of appellant’s passengers, sat in the front passenger seat of Johnson’s car. Johnson dropped his phone and exited the car, but Valdez made him sit in the back seat and told him that they were taking him to a Chevron station so they could get money from a bank. Appellant’s confederates drove away with Johnson. Appellant was not in the car and did not go with them.
While en route, the person with whom Johnson had been speaking on his cell phone called back. Johnson conveyed to the caller that someone was with Johnson in the car, and that the caller should be calling someone. One of appellant’s accomplices told Johnson to hang up the phone, and he complied.
Appellant’s accomplices drove Johnson to a bank. Valdez pointed a gun at Johnson while the second male used Johnson’s bank card to withdraw money from an automated teller machine. Valdez told Johnson that once they got Johnson’s money, he could get out of the car. Valdez said he did not want to hurt Johnson, but they would shoot Johnson if necessary. Valdez also said that Johnson’s car would be left in Universal City. However, once appellant’s confederates obtained money from the bank, they did not release Johnson. Johnson began leaving and one of the males asked him, “What the fuck do you think you’re doing?” Johnson replied, “Fuck this. You guys said, when you got the money, I could get out.” Johnson told them that he was going, then fled.
Johnson later learned that his bank card had been used to make additional withdrawals. On April 21, 2005, Johnson identified appellant from a police photographic lineup. Johnson identified appellant at trial as the person who drove up to him the first and second times.
b. The Arakelian Carjacking (Count 1).
About midnight on April 14, 2005, Mr. Karen Arakelian parked his car outside a store near Franklin and Western. A man approached, grabbed Arakelian by the shirt and, while Arakelian was still in his car, pointed a gun at him and put it against his ribs. Appellant entered the front passenger seat and pointed a gun at Arakelian. Both assailants ordered Arakelian out of his car, and he complied. A second female entered the car and sat in the back seat. As Arakelian’s car was being driven away, a third female followed in a black Mercedes. Appellant continued pointing her gun at Arakelian as she left with her accomplices. Arakelian saw a tattoo of a lion’s head on appellant’s left breast.
On April 21, 2005, Arakelian identified appellant from a police photographic lineup. At trial, Arakelian identified appellant as the person who sat in Arakelian’s front passenger seat and pointed a gun at him.
c. Additional Evidence.
On April 20, 2005, deputies found Johnson’s cell phone at a trailer park. The phone contained photographs of appellant, Valdez, and a little girl. Deputies showed the phone and photographs to appellant, who was at the trailer park. Appellant falsely told deputies that the phone belonged to a friend. Appellant acknowledged that the photographs depicted appellant, Valdez, and her child. Police conducted surveillance of appellant and saw her and Valdez drive to the home of Joy Burgess.
Burgess, an acquaintance of appellant, testified as follows. On April 20, 2005, appellant asked if she could park a car at Burgess’s house. Appellant was accompanied by a male with gang tattoos. Appellant claimed the car belonged to appellant. The car was parked in Burgess’s driveway. At trial, Burgess identified the car parked in her driveway as the one depicted in People’s exhibit No. 5 (Johnson’s car). On April 22, 2005, police recovered Johnson’s car. Johnson testified that property had been taken from it. A gang expert opined for the People that the crimes committed against Johnson and Arakelian were committed for the benefit of EMF, a criminal street gang.
2. Defense Evidence.
In defense, an eyewitness identification expert testified concerning the unreliability of eyewitness identifications, and appellant presented misidentification evidence.
We will provide additional facts where pertinent.
CONTENTIONS
Appellant claims (1) the trial court’s admission in evidence of hearsay violated her right to confrontation, (2) there was insufficient evidence supporting appellant’s conviction on count 2, (3) the trial court erroneously admitted irrelevant and unduly prejudicial evidence, (4) the trial court orally misread a jury instruction, (5) appellant could not be convicted for both kidnapping to commit carjacking, and carjacking, (6) the trial court erred when it imposed for the carjacking (count 1) both a five-year term and a term of 15 years to life, (7) the trial court erred by staying imposition of sentences on counts 2 and 3, and (8) the trial court erroneously imposed a DNA sampling fee.
1. The Evidence that Persons Admitted Gang Membership Did Not Violate Appellant’s Right to Confrontation.
a. Pertinent Facts.
El Monte Police Detective Ralph Batres, an expert on the EMF gang in particular, testified as follows. Persons depicted in photographs seized from appellant’s home were EMF gang members. Some of the depicted persons had told Batres that they were EMF gang members. Other depicted persons were admitted gang members.
Batres had known appellant for a long time and, within the past five years, had gotten to know her very well. Batres and appellant previously had had a “heart-to-heart,” the last one having occurred a couple of years ago at her house. Batres knew appellant was an EMF gang member because appellant told this to him. Appellant’s moniker was Precious.
Batres had seen appellant’s tattoos. Appellant had a variety of tattoos, and Batres knew appellant had a tattoo of a lion’s head on her chest. Other detectives who had had an opportunity to view appellant’s tattoos had told Batres that she had a lot of them. Appellant had EMF tattoos on her body, and this was significant regarding her membership in the EMF gang.
Batres talked with gang members in situations that would not necessarily lead to their arrest. Batres testified he had had contact with them “either as a victim, witness, or suspect” and, because he had been a gang expert for a long time, they trusted him and came to him for assistance regarding family matters. Usually the matters involved child custody. Batres had friendly contacts with gang members. Sometimes he spoke with gang members to get background information, and other times he spoke with them to help them with family matters. They were willing to talk to Batres because they trusted him and knew the information he would give them would be fair.
Batres knew Danny Federico. Federico was an admitted EMF gang member who was convicted of robbery in a case which Batres had investigated. Batres was also familiar with Armando Bermudez, another gang member in the City of El Monte. Bermudez had been convicted in a case involving carjacking and kidnapping, and Batres had been involved in the case.
Appellant concedes Batres testified that Bermudez was an EMF gang member.
One of the previously mentioned photographs depicted appellant between two males. One of the males was making a hand sign of the letter F, which indicated to Batres that the male was an EMF gang member. Appellant and the other male, whose name was Joseph Reygoza, were also making a hand sign of the letter F. Another photograph depicted appellant next to Guillermo Bonilla, an admitted EMF gang member. Appellant was making a hand sign of the letter F. Another photograph showed appellant, a male, and a person named Fat Kathy. Appellant and the male were each making a hand sign of the letter F, and the male and Fat Kathy were each admitted EMF gang members. Another photograph showed appellant and a little girl next to her. The photograph indicated appellant was Big Precious and the little girl was Little Precious.
According to Batres, cities kept track of gang members by such devices as field identification cards and gang photographs in gang books. Batres did this for a number of reasons. One reason he did this was so that he might be able to identify persons later, and this was one of the reasons he spoke with gang members on the streets. The resulting information could be used for possible court or criminal purposes later but, most of the time, the information was gathered merely to identify the person. The reason Batres was identifying them was to determine what nickname they were using. Batres would identify the persons to solve future crimes, but did not think about what would happen concerning the criminal prosecutions.
b. Analysis.
Appellant claims her convictions and the gang findings must be reversed because Batres’s testimony that persons depicted in photographs found in appellant’s residence were EMF gang members, and Batres’s testimony that Federico and Bermudez were EMF gang members, were based on hearsay statements of gang members in violation of appellant’s right to confrontation. Appellant argues, inter alia, that the former testimony contributed to the jury’s conclusion that appellant committed the present offenses “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” within the meaning of Penal Code section 186.22, subdivision (b). She argues the latter testimony (concerning Federico and Bermudez) contributed to the jury’s conclusion that the requisite predicate offenses had been committed for purposes of establishing the “pattern of criminal gang activity” requirement of Penal Code section 186.22, subdivision (e), and therefore also the “criminal street gang” element of subdivision (f).
Both Penal Code section 186.22, subdivisions (b)(1) and (b)(4) contain this language.
In People v. Saracoglu (2007) 152 Cal.App.4th 1584 (Saracoglu), we considered, inter alia, Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford) as well as the more recent case of Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis). In Saracoglu, we stated, “The Supreme Court offered the following summation of its reasoning in Davis: ‘. . . it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’ [Citation].” (Saracoglu, supra, at p. 1595.)
The record does not demonstrate that any admissions of gang membership upon which Batres relied were obtained as part of an investigation of a past crime, as distinct from a possible future crime. However, the high court stated, “When we said in [Crawford], that ‘interrogations by law enforcement officers fall squarely within [the] class’ of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator.” (Davis, supra, 547 U.S. at p. 826 italics added.)
Moreover, the record suggests that the admissions at issue were obtained during informal police contacts with gang members. Appellant does not dispute that at least some of the gang membership admissions were obtained during informal contacts between gang members and police. She concedes it “is difficult for defendants to establish the circumstances under which such information was acquired . . . .” Further, the record reflects that gang memberships were admitted, but it is not clear that all such admissions were made to police, that is, that the admissions were a product of police interrogation. Appellant concedes that Bates testified that some persons told him that they were EMF gang members, that Bates testified that others were admitted gang members, but that Bates did not testify to whom the latter admissions were made.
The burden is on appellant to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) We conclude appellant has failed to meet her burden of demonstrating that the gang membership admissions upon which Batres relied were testimonial statements, that is, that the circumstances objectively indicated that there was no ongoing emergency, and that the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution.
Further, even if the admissions as to gang membership, including the admissions as to Federico and Bermudez, were testimonial, it does not follow that introducing them into evidence violated appellant’s right to confrontation. “The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay. (See People v. Gardeley (1996) 14 Cal.4th 605, 618-619 [59 Cal.Rptr.2d 356, 927 P.2d 713]; Evid. Code, § 801, subd. (b) [an expert’s opinion may be based on matter ‘whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates’].)” (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 (Thomas).)
Thomas continued, “In People v. Vy (2004) 122 Cal.App.4th 1209, 1223, footnote [9] [19 Cal.Rptr.3d 402], the court stated, ‘. . . 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.]’
“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. Crawford itself states that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ (Crawford, supra, 541 U.S. at p. 59 [124 S.Ct. at p. 1369, fn. 9] citing Tennessee v. Street (1985) 471 U.S. 409, 414 [85 L.Ed.2d 425, 105 S.Ct. 2078].)” (Thomas, supra, 130 Cal.App.4th at p. 1210; cf. People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 (Ramirez); People v. Cooper (2007) 148 Cal.App.4th 731, 746-747; People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57.)
In Ramirez, the court said, “Ramirez attempts to distinguish Thomas on the basis that there the hearsay was not elicited for the truth of the matter, but merely to assess the weight of the expert's opinion. Ramirez believes that here [the gang expert’s] testimony about the facts of the predicate offenses was offered for its truth. He argues [the gang expert’s] opinion that the predicate offenses were committed for the benefit of the . . . gang would have been worthless unless the jury accepted the truthfulness of his testimony about how those crimes were committed. [¶] But any expert’s opinion is only as good as the truthfulness of the information on which it is based. Thus in Thomas, the expert’s opinion that the defendant is a member of a gang has value only if the jury believes the hearsay on which the expert relied. Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned. (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.)” (Ramirez, supra, 153 Cal.App.4th at p. 1427.) Appellant cites no case holding that the Confrontation Clause applies in such circumstances.
Finally, Crawford error does not warrant reversal of a judgment when the error is harmless beyond a reasonable doubt. (People v. Lewis (2008) 43 Cal.4th 415, 500, fn. 23.) In the present case, multiple photographs were admitted in evidence which depicted appellant and other persons making hand signs with the letter F, indicating they were EMF gang members.
According to Evidence Code section 225, “ ‘Statement’ means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” (Italics added.) The photographed hand signs of appellant and her companions indicating they were EMF gang members were statements by them which were not the product of police interrogation. They established gang memberships apart from any gang admissions to police. Appellant also had gang tattoos on her body.
To the extent appellant claims the gang findings must be reversed because (1) they required establishment of the element that appellant committed the present offenses “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” within the meaning of Penal Code section 186.22, subdivision (b), and (2) that element was proven by gang membership admissions to police which violated Crawford, the error was harmless beyond a reasonable doubt. To the extent appellant claims her convictions must be reversed because of the alleged Crawford error, there was, as we discuss in part 3 below, ample evidence that appellant committed the crimes; therefore, any such error was harmless beyond a reasonable doubt.
2. There Was Sufficient Evidence Supporting Appellant’s Conviction on Count 2.
Appellant claims there was insufficient evidence supporting her conviction for kidnapping to commit carjacking (count 2). We disagree.
Penal Code section 209.5, subdivision (a), states, in relevant part, “(a) Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole.” Moreover, “Kidnapping during the commission of a carjacking can be analogized to kidnapping during the commission of a robbery. The California Supreme Court has held that ‘where a kidnap[p]ing occurs after the actual perpetration of a robbery such kidnap[p]ing may be kidnap[p]ing for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm.’ [Citation.] Therefore, if there is substantial evidence that appellant intended the kidnapping to effect an escape or prevent an alarm from being sounded, his conviction for kidnapping during the commission of a carjacking must stand.” (People v. Perez (2000) 84 Cal.App.4th 856, 860-861.)
In the present case, appellant’s accomplices kidnapped and committed carjacking in plain view in a well-lit public parking lot which, according to Johnson, was pretty full of cars. Johnson was on the phone immediately before the kidnapping and carjacking commenced. The jury reasonably could have inferred that appellant knew that leaving Johnson behind would increase the risk of detection and decrease the likelihood of escape, and that Johnson would sound the alarm that appellant had committed carjacking. We also note that, en route to the bank, someone called Johnson on his cell phone, Johnson essentially conveyed to the caller that someone was in the car with Johnson and Johnson needed help, one of appellant’s accomplices told Johnson to hang up the phone, and Johnson complied.
Moreover, Valdez told Johnson that once they got Johnson’s money, he could get out of the car, and his car would be left in Universal City. However, once appellant’s confederates obtained money from the bank, they did not release Johnson. Johnson protested that he had been told that he could leave once the assailants obtained money, and Johnson fled. The jury reasonably could have inferred, as apparently Johnson did, that appellant and her confederates kidnapped Johnson in part because they thought he was the only eyewitness who could identify them as carjackers, and that they intended to kill him. Appellant’s confederates took Johnson’s phone before he left. There was sufficient evidence that appellant committed kidnapping to commit carjacking, including sufficient evidence that appellant committed the kidnapping “in order to facilitate the commission of the carjacking” within the meaning of Penal Code section 209.5, subdivision (a). (Cf. People v. Perez, supra, 84 Cal.App.4th at pp. 860-862.)
3. The Court Did Not Erroneously Receive Irrelevant and Unduly Prejudicial Evidence.
a. The Evidence of Appellant’s Daughter’s Nickname Was Admissible.
(1) Pertinent Facts.
Prior to Batres’s testimony, the People proffered a photograph of appellant and her daughter. The photograph indicated that the monikers of appellant and her daughter were Precious and Little Precious, respectively. Appellant asked the court to exclude the photograph under, inter alia, Evidence Code section 352, claiming the photograph was cumulative with respect to appellant’s moniker, and unduly prejudicial because the photograph suggested appellant was raising her daughter in the gang lifestyle. The trial court overruled the objection, concluding the photograph, like others, would be introduced through a gang expert who would draw conclusions from the photographs, and the photographs, like the instant one, were admissible to show that gang lifestyle was the most prominent thing in appellant’s life.
(2) Analysis.
Appellant claims the trial court erred by failing to exclude, under Evidence Code section 352, the photographic evidence of appellant, her daughter, and their respective monikers. We disagree. We review a trial court’s ruling on an Evidence Code section 352 issue for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 723-724.)
We have set forth the pertinent facts. We believe the trial court reasonably concluded the photograph at issue was admissible to show the prominence of gang affairs in appellant’s life. The trial court did not abuse its discretion by failing to exclude the photograph under Evidence Code section 352. Moreover, the application of ordinary rules of evidence here did not violate appellant’s federal rights to due process or a fair trial. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Mincey (1992) 2 Cal.4th 408, 440.)
Finally, appellant was an active gang member and, for that reason alone, the jury reasonably could have concluded that she was continually exposing her daughter to a gang lifestyle. There is no dispute that someone committed the substantive offenses of which appellant was convicted. Johnson and Arakelian identified appellant as a perpetrator by her photograph and at trial. Johnson saw the tattoo of a lion’s head on appellant, and Batres testified she had such a tattoo. Johnson’s cell phone, when later recovered, contained appellant’s photograph. Appellant caused Johnson’s car to be left with Burgess. Johnson drove a black Mercedes, and such a vehicle was involved in the Arakelian carjacking. Appellant concedes that multiple photographs were used to show how prominent the gang lifestyle was for appellant.
During jury argument, appellant’s counsel conceded appellant was present when Arakelian was carjacked, but counsel argued appellant did not participate in the carjacking and instead engaged in an act of prostitution with him. Appellant did not dispute that someone committed the offenses against Johnson of which appellant was convicted, but argued to the jury that appellant was not the person who initially drove up to Johnson in the Mercedes and, even if she was, she did not know her male companions were going to commit the offenses. Appellant’s counsel, commenting he would talk “a little bit” about the gang allegations, suggested Batres was not a gang expert, if he was a gang expert he was biased as a People’s witness, and, according to appellant, a portion of Batres’s testimony indicated the offenses were not committed for the benefit of a criminal street gang. The alleged error was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].)
b. The Evidence That Prostitutes and Drug Dealers Paid the Gang, and that Drug Trafficking Benefited the Gang, Was Admissible.
During the People’s direct examination of Batres, he testified that the EMF gang committed crimes in El Monte. The prosecutor asked Batres what the word “taxes” meant in regard to the gang, and appellant posed a relevance objection. The court overruled the objection and Batres testified as follows. There were prostitutes and drug dealers in El Monte, and they told police that they had to pay taxes or a fee to the gang or they would be assaulted or assaulted with baseball bats.
Later during the People’s direct examination of Batres, the prosecutor asked how drug crimes, drug sales, and drug trafficking or transportation benefited the gang. Appellant posed a relevance objection which the court overruled. Batres then indicated that those crimes benefited the gang because the crimes supported the gang’s budget because the gang needed income from narcotics sales so the gang could purchase more narcotics.
Appellant claims the evidence was irrelevant and excludable under Evidence Code section 352. We disagree. We review both issues under an abuse of discretion standard. (People v. Waidla, supra, 22 Cal.4th at pp. 723-724.) Assuming the Evidence Code section 352 objection was preserved for appellate review, we note that, in the present case, the Penal Code section 186.22, subdivision (b), gang allegations required that the People prove the “criminal street gang” element of that subdivision. That, in turn required, under subdivision (f), proof that one of the “primary activities” of the gang was the commission of one or more statutorily-enumerated acts. Felonious assault, drug sales, and felony extortion were some of the statutorily-enumerated acts (Pen. Code, § 186.22, subds. (e)(1), (e)(4), & (e)(19)). These matters were placed in issue by appellant’s not guilty plea. (Cf. People v. Daniels (1991) 52 Cal.3d 815, 857-858; Evid. Code, § 210.) The trial court did not abuse its discretion by receiving the challenged testimony.
Moreover, the court instructed the jury that they could not use the gang activity evidence as propensity evidence or to conclude appellant had a bad character, and that they could consider said evidence only on the issue of the gang allegations. In light of that instruction and the evidence of appellant’s guilt, the alleged error was not prejudicial. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.)
c. The Introduction of Evidence that A Gang Member’s Mother Was In the Courtroom Was Not Prejudicial Error.
During the People’s direct examination of Batres, he testified without objection that he was familiar with Irma Hernandez. The prosecutor then asked how Batres was familiar with Hernandez, and Batres replied that it was in regards to Hernandez’s son. Appellant posed a relevance objection. At sidebar, the court suggested that the prosecutor was going to ask Batres a hypothetical question and ask him to opine. The court indicated Hernandez’s mother was “here today[]” and that she had smiled at the court. The prosecutor represented that Batres had arrested Hernandez’s son, and that he was an EMF gang member. Appellant argued the evidence was tangential and its introduction would delay trial. The court suggested the evidence was not tangential, but indicated it was somewhat cumulative and the introduction of the evidence was taking a little time. The court ruled it would admit the evidence.
Batres subsequently testified before the jury that he was familiar with Hernandez’s son because Batres had arrested him in connection with witness intimidation. Batres also testified that Hernandez’s son’s moniker was Clever, and Clever was depicted in the photographs. Batres further testified Hernandez was depicted in a photograph.
Appellant claims the evidence that Hernandez, the mother of an EMF gang member, was in the courtroom was irrelevant and excludable under Evidence Code section 352. We disagree. Assuming there was evidence that Hernandez was in the courtroom, the evidence was admissible to show how prominent the gang lifestyle was for appellant. The application of ordinary rules of evidence here did not violate appellant’s federal rights to due process or a fair trial. (Cf. People v. Boyette, supra, 29 Cal.4th at pp. 427-428.) Moreover, appellant concedes various evidence was received to show how prominent the gang lifestyle was for appellant and, in light of the evidence of appellant’s guilt, no prejudicial error occurred. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.)
4. The Trial Court Did Not Reversibly Err by Orally Misstating an Instruction.
One of the written instructions given to the jury was CALJIC No. 17.24.2, pertaining to felonies committed for the benefit of street gangs. In pertinent part, that written instruction stated: “The phrase ‘primary activities,’ as used in this allegation, means that the commission of one or more of the crimes identified in the allegation, be one of the group’s ‘chief’ or ‘principal’ occupations. This would of necessity exclude the occasional commission of identified crimes by the group’s members.” (Italics added.) However, before the court delivered the written instructions to the jury, it orally read them to the jury. The reporter’s transcript reflects that when the court at that time orally read CALJIC No. 17.24.2, the court, instead of saying “exclude” as italicized above, said “include.”
Appellant claims the trial court reversibly erred when it orally stated “include” instead of “exclude.” We disagree. In People v. Osband (1996) 13 Cal.4th 622 (Osband), the defendant claimed that the trial court’s oral misstatements of correctly worded written instructions violated, inter alia, his Fifth and Fourteenth Amendment rights. Our Supreme Court stated, “as long as the court provides the jury with the written instructions to take into the deliberation room, they govern in any conflict with those delivered orally. [Citation.] As it did at the guilt phase, the court gave the jurors six copies of the written instructions. There was no violation of any federal constitutional provision.” (Id. at p. 717.)
Citing to Osband, our Supreme Court more recently has said, “when there is an inconsistency between the trial court’s oral and written instructions, it is assumed that the jury followed the written instructions.” (People v. Huggins (2006) 38 Cal.4th 175, 260.) We note appellant does not cite from the record instances of “the occasional commission of identified crimes by the group’s members” upon which the jury erroneously might have relied to find true the gang allegations. No reversible error occurred.
5. Appellant’s Conviction on Count 4 Must Be Reversed and Dismissed.
The jury convicted appellant of kidnapping Johnson to commit carjacking (count 2), and carjacking (count 4). Respondent concedes carjacking is a lesser included offense of kidnapping to commit carjacking, and, therefore, appellant’s conviction on count 4 must be reversed. (Cf. People v. Medina (2007) 41 Cal.4th 685, 700-703; People v. Pearson (1986) 42 Cal.3d 351, 355; People v. Ortiz (2002) 101 Cal.App.4th 410, 415; People v. Jones (1999) 75 Cal.App.4th 616, 624-625; People v. Contreras (1997) 55 Cal.App.4th 760, 763-765; see People v. Palacios (2007) 41 Cal.4th 720, 725, fn. 2.) We accept the concession and will reverse appellant’s carjacking conviction (count 4) and remand the matter with directions to the trial court to dismiss count 4. (People v. Contreras, supra, at pp. 765-766.)
6. The Trial Court Erroneously Imposed a Five-Year Term on Count 1.
The jury found true as to appellant’s carjacking conviction (count 1) that appellant committed the offense for the benefit of a criminal street gang “pursuant to Penal Code Sections 186.22 (b)(1)(c) and (b)(4).” (Sic.) On March 16, 2007, the court sentenced appellant, including a sentence as to count 1 of 30 years to life in prison. This consisted of the five-year middle term for carjacking, plus ten years for the Penal Code section 12022.53, subdivision (b) enhancement, plus 15 years to life pursuant to Penal Code section 186.22, subdivision (b)(4)(B). On July 10, 2007, the court recalled its sentence pursuant to Penal Code section 1170, subdivision (d), modified the sentences previously imposed as to counts 2 through 4, but left unchanged the sentence previously imposed as to count 1.
We use sic here not only because the correct reference is section “186.22 (b)(1)(C)”, but because, as discussed below, section 186.22, subdivision (b)(1)(C) and (b)(4) are mutually exclusive provisions.
The July 10, 2007 minute order reflects, “Defendant’s motion pursuant to Penal Code section 1170(D) comes on for hearing, is argued and granted as to counts 2, 3 and 4 only.” (Some capitalization omitted.)
Appellant claims the trial court erred to the extent it imposed the five-year middle term as to count 1. Respondent agrees and we accept that concession. Penal Code section 186.22, subdivision (b)(4), required that the trial court impose a prison sentence of 15 years to life for appellant’s felony offense of carjacking (count 1); therefore, the trial court’s sentence as to count 1 was correct to this extent. “Current section 186.22, subdivision (b)(4) . . . is an alternate penalty provision because it . . . ‘sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.’ [Citation.]” (Robert L. v. Superior Court, supra, 30 Cal.4th 894, 900, fn. 6, first and third italics added.) It follows that the trial court erred when it also imposed the five-year middle term for the felony offense of carjacking. In light of this and other sentencing errors discussed below, we will vacate appellant’s sentence and remand for resentencing.
Respondent’s assertion that appellant’s sentence as to count 1 should be 15 years to life (without a reference by respondent to the Penal Code section 12022.53, subdivision (b) gun enhancement pertaining to that count), suggests that respondent is asserting that the trial court not only erred by imposing the five-year middle term but erred by imposing the ten-year gun enhancement. However, appellant does not expressly raise any issue concerning the gun enhancement, and Penal Code section 186.22, subdivision (b)(4) does not expressly require that we strike the gun enhancement. As mentioned below, that subdivision is an alternate penalty provision for the “underlying felony itself.” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900, fn. 6.) To the extent respondent suggests we strike the gun enhancement, we decline to do so.
Penal Code section 186.22, subdivision (b)(4), states: “Any person who is convicted of a felony enumerated in this paragraph 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, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. [¶] (B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55. [¶] (C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1.” (Italics added.)
7. Remand for Resentencing is Warranted as to Counts 2 and 3.
a. Pertinent Facts.
The jury found true as to each of counts 2 and 3 that appellant committed the offense for the benefit of a criminal street gang “pursuant to Penal Code Section 186.22 (b)(1).” As mentioned, on March 16, 2007, the court sentenced appellant. Appellant’s sentence included, as to each of counts 2 and 3, a prison term of life with the possibility of parole (Pen. Code, § 209.5 (count 2) & Pen. Code, § 209, subd (b)(1) (count 3)), with each such sentence consecutive to each other and to the sentence imposed as to count 1.
As a matter of guidance to the trial court following remand, we note that, as to each of counts 2 and 3, the court purported to stay or strike a 10-year Penal Code section 186.22, subdivision (b)(1)(C) enhancement. However, because each substantive offense required a sentence of life with the possibility of parole, subdivision (b)(1)(C) was inapplicable and only subdivision (b)(5) applied. Penal Code section 186.22, subdivision (b)(1), creates an exception to the imposition of the 10-year enhancement term otherwise mandated by Penal Code section 186.22, subdivision (b)(1)(C). The exception states, “Except as provided in paragraph . . . (5).” Penal Code section 186.22, subdivision (b)(5), states, in relevant part, “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.” As to each of counts 2 and 3, the exception rendered inapplicable the 10-year enhancement term (cf. People v. Herrera (1999) 70 Cal.App.4th 1456, 1465) and mandated instead a minimum parole eligibility term of 15 years (cf. People v. Ramos (2004) 121 Cal.App.4th 1194, 1209).
Also as mentioned, on July 10, 2007, the court recalled its sentence as to, inter alia, counts 2 and 3, and stated that, as to those two counts, the court would “stay the imposition of the life sentences.” The court later stated, “The two life sentences in counts 2 and 3 will be stayed.” The July 10, 2007 minute order states, “The sentence imposed as to counts 2 and 3 consecutively to that imposed in count 01 is now stayed.” (Some capitalization omitted.) The trial court cited no statutory basis for staying imposition of sentences on counts 2 and 3.
Appellant asserts the reporter’s transcript reflects the trial court did not know whether it had discretion to impose concurrent sentences on counts 2 and 3. However, in support, appellant cites only a reference to a comment by the prosecutor, not by the trial court.
b. Analysis.
Respondent concedes that the trial court, with no citation to legal authority, stayed imposition of sentences on counts 2 and 3, and that remand for resentencing is appropriate. We accept the concession. We will vacate appellant’s sentence and remand for resentencing.
8. The DNA Sampling Charge Must Be Stricken.
The trial court imposed a $200 Penal Code section 1202.4, subdivision (b) restitution fine, and a $20 Penal Code section 1465.8, subdivision (a) court security charge. The court also purported to impose, pursuant to Penal Code section 299.5, a $20 charge for DNA sampling. Appellant claims the trial court erred by imposing the DNA sampling charge.
Respondent concedes the $20 DNA sampling charge must be stricken because 2007 legislation enacted pending appellant’s appeal renders inapplicable the provision--Government Code section 76104.6--which otherwise would have applied to mandate the charge. (Cf. People v. Vieira (2005) 35 Cal.4th 264, 305; Gov. Code, § 76104.6, subd. (a)(3)(A); Stats. 2007, ch. 302, §§ 7 & 18.) We accept the concession. We will vacate appellant’s sentence.
DISPOSITION
The judgment is affirmed, except that appellant’s conviction for carjacking (count 4) is reversed, appellant’s sentence, including the DNA sampling charge, is vacated, and the matter is remanded to the trial court with directions to dismiss count 4, and resentence
appellant on the remaining counts consistent with this opinion. The trial court is also directed to forward to the Department of Corrections an amended abstract of judgment.
We concur: CROSKEY, Acting P. J., ALDRICH, J.