Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court, No. GA063307 of Los Angeles County. Rafael A. Ongkeko, Judge.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant Jose Ramon Delgadillo.
Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Albert Quintero.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
A jury convicted appellant Jose Ramon Delgadillo (Delgadillo) of grand theft auto (Pen. Code, § 487) (count 2), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 3), and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 4).
All further references to statutes are to the Penal Code unless stated otherwise.
The jury convicted appellant Alberto Evan Quintero (Quintero) of carjacking (§ 215, subd. (a)) (count 1), grand theft auto (§ 487) (count 2), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 3).
With respect to counts 1 through 3, the jury found true the allegation that the crimes were committed for a criminal street gang purpose (§ 186.22, subd. (b)(1)(A)). In count 1, the jury found true with respect to Quintero that a principal personally used a firearm under section 12022.53, subdivision (e)(1). In counts 2 and 3, with respect to both appellants, the jury found true the allegation that a principal was armed with a firearm under section 12022, subdivision (a)(1). The jury found that Delgadillo personally used a firearm under section 12022.5, subdivision (a) in counts 2 and 3. The jury found true that Delgadillo had a prior serious felony conviction under section 667, subdivision (a)(1) and under sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
The trial court granted the defense motions to dismiss count 3 as a lesser included offense of count 2. In sentencing Quintero, the trial court imposed a term of 15 years to life for the carjacking in count 1. In count 2, the trial court imposed and stayed a term of six years consisting of the midterm of two years, a three-year gang enhancement, and a one-year arming enhancement under section 12022, subdivision (a).
The trial court sentenced Delgadillo to 15 years for grand theft auto in count 2. The sentence consisted of a two-year midterm doubled to four years under the three strikes law, a three-year gang enhancement, a three-year arming enhancement under section 12022.5, subdivision (a), and a five-year enhancement for a prior serious felony under section 667, subdivision (a)(1).
Delgadillo appeals on the grounds that: (1) he was denied his state and federal constitutional rights to due process when the trial court refused the defense request to have the jury instructed on self-defense and defense of another with CALCRIM No. 3470 with respect to the charge of personal use of a firearm under section 12022.5, subdivision (a); (2) there is insufficient evidence to support the jury’s finding on the gang allegation as to Delgadillo, which violates his constitutional rights to due process; (3) there is insufficient evidence to support the jury’s finding that Delgadillo personally used a firearm in the commission of grand theft auto and the unlawful taking of a vehicle, which violates his constitutional rights to due process; (3) Delgadillo was denied his constitutional rights to due process because CALCRIM No. 3146 is flawed; and (4) the defective reasonable doubt instruction, which was a structural error, denied Delgadillo his right to due process under the Fifth and Fourteenth Amendments. Delgadillo adopts all arguments presented by Quintero that accrue to his benefit.
Quintero appeals on the grounds that: (1) the trial court erred by refusing to instruct on the theory of self-defense and defense of another with CALCRIM Nos. 3470 and 2514 with respect to Quintero and (2) insufficient evidence supported the true finding on the gang allegation. Quintero joins in all issues raised by Delgadillo that accrue to his benefit.
FACTS
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following facts. On the evening of October 12, 2005, Gabriel Benza (Benza) drove in his 1988 Acura Legend to a liquor store on East Colorado Boulevard in Pasadena. He was with two friends, James Lopez (Lopez) and Bret Wotherspoon (Wotherspoon). Benza parked his car in the parking lot in back of the store. He bought cigarettes in the store and went back to sit in his car and smoke while his friends were in the store buying food and drinks.
Benza noticed there were five persons inside a car parked approximately 25 feet away. One of the five approached Benza’s car, and four of them went to stand near the entrance to the store, which was approximately 10 feet from Benza’s car. The person who approached Benza was a little under six feet tall and wore a baseball cap, gold chain, and an undershirt with no sleeves. Benza subsequently identified this person as Quintero.
Quintero asked Benza where he was from, and Benza understood this question to refer to a gang affiliation. Quintero told Benza that he liked his car and told him to get out of the car. Benza grabbed a baseball bat from the passenger’s seat and held it low to his side as he got out of his car. It was an aluminum T-ball bat for “little kids.” When Benza was halfway out of the car, he felt something hard pressing up against the left side of his head. He had not made any aggressive gestures with the baseball bat toward Quintero. Benza believed a gun was being held against his head, and he used his free hand to swat the object away. He then ran towards the store entrance with the bat in his hands.
One of the persons who had arrived with Quintero called out, “just go back to the car.” Before Benza got to the entrance he heard someone yell, “Blast him, blast him.” Benza saw a man, later identified as Delgadillo, wearing baggy clothing and standing to the left of the store entrance. Delgadillo pulled a gun from his waistband as Benza ran toward the store entrance. Delgadillo approached Benza from a distance of approximately five to six feet with the gun in his hand. Lopez and Wotherspoon saw Benza come running into the store carrying a baseball bat and yelling, “‘He’s got a gun. He’s got a gun.’” Benza ran from the liquor store to an adjacent nail salon and yelled for someone to call 911.
Benza had left his car key in the ignition, and he saw his Acura being driven away. Later that night, police took Benza to the place where his car was found wrecked.
Susan Lowe (Lowe) lived on Martelo Avenue in Pasadena. On the night of October 12, 2005, she heard a loud noise and went outside where she saw that a car had crashed into a tree. Two men got out of the car and, after failing to start the car, they ran down an alley. Lowe said that one of the occupants was wearing a sleeveless T-shirt.
At approximately 9:00 p.m. on the night in question, Officer Anthony Russo was checking the area of East Corson Street for suspects in the carjacking. He found a wallet lying on the sidewalk on East Corson Street. Inside the wallet he found a California identification card and social security card bearing Quintero’s name.
Officer Jason Clawson heard a broadcast regarding a vehicle crash on Martelo Avenue and drove to the location. A citizen told Officer Clawson that he had seen two bald-headed male Hispanics wearing white T-shirts running eastbound on Maple Street. Both Quintero and Delgadillo were arrested in the area near the car crash and the location of the wallet.
Police placed a recording device in the police car used to transport Quintero and Delgadillo. The recording captured Quintero telling Delgadillo where he had hidden the gun. Police later found a knife and a loaded .22-caliber gun in the described location. Quintero said he had told Benza that this was his neighborhood, and he bragged about how he had “jacked” him. He said he was a member of Northside Pasadena Oak Street gang (NSP) and that was his neighborhood. The homies were going to see him and Delgadillo in a “good light” for “putting in work” with the “jacking.” Quintero said that the homies would show up in court and that Benza would be “smoked” if he testified. Delgadillo said he ran to the car to “strap” himself to aid Quintero after he saw that Benza had a baseball bat.
Police took Quintero and Delgadillo to the liquor store for a field showup. Benza identified Quintero as the one who put a gun to his head. Benza was not able to identify Delgadillo in the showup. Lopez and Wotherspoon were not able to identify anyone they saw at the liquor store with a gun.
Police Detective Ernie Devis interviewed Quintero and Delgadillo on the following day, and recordings of these interviews were played to the jury. During his interview Delgadillo said he happened to stumble on the carjacking taking place. He then changed his story and said he arrived in a car with Quintero and NSP gang members before the incident. He would not name the other occupants in the car.
Andrea Perez of the Pasadena Police Department testified as the “lead Latino gang intelligence officer” of her department. She said that the NSP gang was the main gang out of four subsets of gangs. The gang’s primary activity was committing carjackings, robberies, auto burglaries, narcotic sales, gun possession, murder, and attempted murder. At the time of the carjacking NSP had approximately 15 active members out of 70, and the gang’s activities had been decreasing because most of its members were in custody. Officer Perez knew Quintero from prior contacts and believed he was an NSP member. Quintero bore NSP tattoos. Officer Perez was aware of police records indicating that Delgadillo was an admitted NSP member. Officer Perez believed that the liquor store where Benza stopped was in NSP territory. Based on the evidence, Officer Perez was of the opinion that Quintero committed the carjacking to benefit the gang and that Delgadillo acted as Quntero’s assistant. She stated that gang members use guns for protection during crimes or an encounter with a rival gang.
DISCUSSION
I. Sufficiency of the Evidence of Delgadillo’s Alleged Use of a Firearm Under Section 12022.5
A. Delgadillo’s Argument
Delgadillo contends he did not display the gun in a menacing manner as required by section 12022.5, subdivision (a). He asserts he did not point the gun at Benza and merely ran with the gun in his right hand. He adds that the jury’s finding that he was not guilty of carjacking meant that as a matter of law it could not have found that he used a firearm in the commission of the grand theft auto and the unlawful taking of a vehicle. On the contrary, he argues, the evidence indisputably established he did not display a firearm in a menacing manner during the taking of the vehicle or afterwards. Therefore, there is insufficient evidence that he personally used a firearm in committing these counts, and double jeopardy principles preclude a retrial on this allegation.
Given the true finding regarding Quintero that a principal used a gun during the carjacking, Quintero presumably joins in Delgadillo’s argument.
B. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] . . . The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citations.]’” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Section 12022.5 provides in pertinent part: “(a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”
C. Evidence Sufficient
We disagree with appellant’s assertion that the evidence showed he did not display the firearm in a menacing manner and therefore the jury could not find that he used the firearm. Section 1203.06, subdivision (b)(3) provides that personal use of a firearm is “to display a firearm in a menacing manner, to intentionally fire it, or to intentionally strike or hit a human being with it.” (§ 1203.06; see also People v. Johnson (1995) 38 Cal.App.4th 1315, 1319.) “Nothing in the language of section 12022.5(a) discloses a legislative intent to limit its application to situations where the gun is pointed at the victim or the defendant issues explicit threats of harm.” (People v. Granado (1996) 49 Cal.App.4th 317, 322.) Neither an express threat nor other kinds of specific conduct is required to establish “‘use.’” “[W]hen a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5(a).” (Id. at p. 325.)
In this case, Benza testified that after he swatted away from his head what he believed was a gun held by Quintero, he began to run toward the liquor store. He saw that “another guy” had pulled a gun out of his waistband, and Benza heard someone yelling, “Blast him, Blast him,” or “Blast that fool.” Benza was scared for his life. The man with the gun was five or six feet away from Benza at that point. He did not look to see if it was pointed at him, but “[he] saw the gun, and that was enough for [him].” Benza ran into the liquor store and a “couple seconds” later, as he was running next door, he saw his car pull out of the driveway. Benza’s friend Lopez saw Benza run into the store looking fearful and screaming, “He’s got a gun. He’s got a gun.” Lopez saw the man approach Benza from behind, appearing to pull out a gun.
During his interview with Detective Devis, Delgadillo said that he ran to the car to get the gun when Benza came out of the car. He claimed he did not point the gun at Benza, but he ran with it in his hand, and Benza would have seen it. Quintero then got inside the car and told Delgadillo to get in. The clandestine digital recording from the police car reveals Delgadillo telling Quintero that he ran to the car to get the “strap” when he saw that Benza had a bat. Quintero said he told Delgadillo to get the strap and to “smoke this fool.”
We agree with the trial court’s statement in response to Delgadillo’s new trial motion that, “it is reasonable, under all the circumstances in that parking lot that evening, seeing even part of a firearm was more than enough of a threatening and menacing display to amount to an unlawful use under the law.” Even though the jury found Delgadillo not guilty of carjacking, the theft of the auto took place almost simultaneously and it cannot be said that Delgadillo did not display a firearm during the taking of the vehicle. Benza saw his car being driven away within seconds of his getting inside the liquor store. It was the display of the gun that heightened Benza’s fear and led him to abandon his car. Delgadillo’s gun use was clearly not incidental or inadvertent. Had Delgadillo not displayed a gun, he would have nevertheless been found guilty in counts 2 and 3. Therefore, the fact that he used a gun in a menacing manner during the commission of these crimes led to a reasonable finding by the jury, supported by substantial evidence, that Delgadillo’s use was facilitative of the taking of the vehicle rather than incidental exposure. (See People v. Granado, supra, 49 Cal.App.4th at p. 325.)
II. Allegedly Erroneous Language of CALCRIM 3146
A. Delgadillo’s Argument
Delgadillo claims that CALCRIM No. 3146 as given in the instant case did not state that a defendant must display the firearm to aid in the commission of the charged felony in order for the defendant to have personally used the firearm within the meaning of sections 1202.06, subdivision (a)(1). Since the jury found Delgadillo not guilty of carjacking, there is a reasonable and plausible basis for finding that the instructional error affected the jury’s verdict. This is especially true, appellant argues, when there is no evidence that he obtained the gun to aid Quintero in taking Benza’s vehicle. Under any standard, the error was prejudicial. Quintero presumably joins in this argument.
B. Relevant Authority
We review de novo the validity and impact of the trial court’s jury instructions. (People v. Burch (2007) 148 Cal.App.4th 862, 870.) “‘A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’” (People v. Hart (1999) 20 Cal.4th 546, 622.)
C. No Error
We disagree with Delgadillo’s claims and conclude that CALCRIM No. 3146, like its predecessor, CALJIC No. 17.19, is an accurate statement of the law. Delgadillo’s attempt to capitalize on his acquittal of carjacking in order to inject a degree of doubt into the jury’s true finding on the personal use allegations is of no avail.
CALJIC No. 17.19 provides: “It is alleged [in Count[s] ___ ] that the defendant[s] ______ personally used a firearm during the commission of the crime[s] charged.
CALCRIM No. 3146 was read to the jury as follows: “If you find a defendant guilty of the crimes charged in Counts 1, 2 or 3, you must then decide whether, for each crime, the People have proved the additional allegation that the defendants personally used a firearm during the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. The term firearm is defined in another instruction. A firearm does not need to be in working order if it was designed to shoot and appears to be capable of shooting. A firearm does not need to be loaded. Someone personally uses a firearm if he or she intentionally does any of the following: One, displays the firearm in a menacing manner; Two, hits someone with the firearm; Or Three, fires the firearm. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (Italics added.)
At the outset, given our determination that CALCRIM No. 3146 is a correct statement of the law, we conclude that Delgadillo waived his claim. Delgadillo appears to believe that the trial court should have added some additional language emphasizing that personal use requires that the gun use must aid in the commission of the crime. Because CALCRIM No. 3146 covers all the elements of a violation of section 12022.5, including the fact that the personal firearm use must have occurred during the commission of the crime, Delgadillo “‘may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete,’” since he requested no amplifying or clarifying language. (People v. Hart, supra, 20 Cal.4th at p. 622.)
Moreover, the cases cited by Delgadillo in support of his argument do not support his claim. In People v. Bland (1995) 10 Cal.4th 991 (Bland), the issue was whether a defendant was properly convicted of a possessory drug offense with an arming enhancement when he possessed both drugs and a gun but was not present when the police seized the items from his home. (Id. at p. 995.) The court rejected the Court of Appeal’s focus on the accessibility of the firearm to the defendant at the time the officers actually found the cocaine and assault weapon. (Id. at p. 996.) In reaching this conclusion the Bland court reviewed the distinction between use and arming. (Id. at p. 997.) The court stated that “use” means, inter alia, “‘“to carry out a purpose or action by means of,”’” and to “‘“make instrumental to an end or process.”’” (Ibid.) Bland provides no precedent as to the validity of CALJIC No. 17.19 (which contains language similar to CALCRIM No. 3146) and its explanation of “use” to a jury.
In In re Tameka C. (2000) 22 Cal.4th 190 (Tameka C.), the issue was whether a defendant who commits an assault with a firearm upon an intended victim, and with the same shot injures an unintended victim, thereby committing another assault, may have his or her sentence for each assault enhanced by a separate firearm-use enhancement. In that case the minor defendant shot her intended victim in the buttocks and then aimed the gun in the direction of police officers at the scene. The bullet she fired hit a child, Michael K., inside a hotel and seriously injured him. (Id. at pp. 191-192.) In a juvenile wardship proceeding, the juvenile court found true the allegation that the defendant committed an assault with a firearm on Michael K. and found true the allegation that defendant used a firearm in the commission of the offense pursuant to section 12022.5, subdivision (a). (Tameka C., supra, at p. 192.) Defendant appealed on the ground that the firearm-use enhancement for the assault on Michael K. was error. (Id. at p. 193.)
The Tameka C. court traced the history of its rulings in cases where a firearm was used against multiple victims. (Tameka C., supra, 22 Cal.4th at pp. 193-196.) The court concluded that the language of section 12022.5, subdivision (a) and the legislative intent supported the conclusion that an enhancement for each assault was correctly imposed on the defendant. (Tameka C., supra,at p. 196.) The court explained that the defendant could not claim she did not “‘use’” a firearm in her assault upon Michael K., since she made the firearm “‘instrumental’” in the assault and “‘applied’” the firearm to advantage. (Id. at pp. 196-197.) The court added that, “[a]s for the statutory phrase ‘in the commission of,’ nothing indicates that the Legislature intended to limit application of the statute to crimes in which the defendant possessed the intent to injure a particular victim.” (Id. at p. 197.) The court stated that the arming need only take place during the underlying felony and require some facilitative nexus to the offense. (Ibid.)
Thus we see that Tameka C., like Bland, has no relevance to Delgadillo’s complaint. Although the cases give explanations of what it means to use a firearm, neither of the cases, nor any of the cases Delgadillo cites, require that these expanded definitions of, or detailed explanations of, what it means to use a firearm must form part of the jury instruction on violations of section 12022.5.
Delgadillo also claims, citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), that his rights to due process and a jury trial on every element of the charge was violated because of this alleged failure to include an element of the sentence enhancement in the instruction. At the outset we note that any Apprendi claim has been waived. In Apprendi, the United States Supreme court held that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt[]” (Apprendi, supra, at p. 490). A constitutional objection based on Apprendi purposes is timely if made at the time of sentencing. (U.S. v. Candelario (11th Cir. 2001) 240 F.3d 1300, 1304, overruled on another point in U.S. v. Sanchez (11th Cir. 2001) 269 F.3d 1250, 1277, fn. 51; see also U.S. v. Smith (11th Cir. 2001) 240 F.3d 927, 929.) Appellants’ failure to raise an Apprendi issue in a timely manner forfeits the issue on appeal. (U.S. v. Candelario, supra, at pp. 1303-1311.) Furthermore, the United States Supreme Court has not held that an Apprendi claim may be raised for the first time on appeal while holding at various times that constitutional errors must be preserved by proper objection in the trial court. (See, e.g., Daniels v. United States (2001) 532 U.S. 374, 381; United States v. Olano (1993) 507 U.S. 725, 731.) Because appellants did not raise an Apprendi claim at the time of sentencing or at any time, the issue has been forfeited.
In any event, we believe such a claim to be meritless. The trial court properly instructed the jurors on all the elements of the firearm-use allegations and the appellants were thus afforded a jury trial on all elements of the allegations.
III. Failure to Read CALCRIM Nos. 3470 and 2514 As Requested
A. Appellants’ Argument
Quintero contends his request that the jury be instructed with CALCRIM Nos. 3470 and 2514 should have been granted. The defense case was constructed around the theory that Delgadillo pointed a gun at Benza only because Delgadillo reasonably believed Benza was going to hit Quintero with the baseball bat and that Delgadillo acted in lawful defense of another (Quintero) in pointing the gun. Therefore, the trial court was in error when it refused CALCRIM No. 3470 and limited CALCRIM No. 2514 to count 4, in which Delgadillo only was charged (as a felon in possession of a firearm). This meant that Quintero did not benefit from the instruction and was subject to his sentence being enhanced because a principal was armed.
The version of CALCRIM No. 3470 requested by counsel for Quintero on behalf of both appellants provided: “The defendant is not guilty of personally using a firearm if he used force against the other person in lawful defense of another. The defendant acted in lawful defense of another if:
Quintero’s counsel proposed the following version of CALCRIM No. 2514: “The defendant is not guilty of unlawful possession of a firearm as charged in Count ____, if he temporarily possessed the firearm defense of another [sic]. The defendant possessed the firearm in lawful defense of another if:
CALCRIM No. 2514 was read to the jury in pertinent part as follows: “This instruction applies only if you have already found that: “‘One, defendant Jose Ramon Delgadillo personally used a firearm in this case; and two, before the defendant Jose Ramon Delgadillo personally used a firearm in this case, the People failed to prove some or all of the elements in instruction 2510 [describing the elements of a violation of section 12021, subdivision (a)(7)], which precedes this instruction. Defendant Jose Ramon Delgadillo is not guilty of unlawful possession of a firearm as charged in Count 4 if he temporarily possessed the firearm in defense of another. The defendant possessed the firearm in lawful defense of another if: One, the defendant reasonably believed that Alberto Quintero was in eminent [sic] danger of suffering significant or substantial physical injury; two, that the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; three, a firearm became available to the defendant without planning or preparation on his part; four, the defendant possessed the firearm temporarily, that is, for a period no longer than was necessary for self-defense; five, no other means of avoiding the danger of injury was available; And six, the defendant’s use of the firearm was reasonable under the circumstances.”
Delgadillo also argues that the proposed modified version of CALCRIM No. 3470 should have been given. According to Delgadillo, if the jury believed Delgadillo used the gun only to protect himself or Quintero and not to aid in taking Benza’s car, it was a defense to the personal firearm-use allegation contained in section 12022.5, subdivision (a). He maintains there was substantial evidence to support the instruction and it was necessary so that the jury could consider the defense theory. According to Delgadillo, appellant’s rights to due process under the federal and California Constitutions were violated.
B. Relevant Authority
A court must give self-defense instructions requested by the defense only when substantial evidence supports them. (People v. Elize (1999) 71 Cal.App.4th 605, 615; People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) Evidence is substantial if a reasonable jury could find it persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201 & fn. 8.) In determining whether substantial evidence exists, we do not examine the credibility of the witnesses. (People v. Elize, supra, at p. 615.)
On appeal, we independently review the question of whether the trial court erred in failing to instruct on the defendant’s defenses. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78, citing People v. Waidla (2000) 22 Cal.4th 690, 739.)
C. Proceedings Below
Upon Quintero requesting the reading of CALCRIM No. 3470, the trial court asked, “Where is the substantial evidence of self-defense on behalf of defendant Quintero?” Quintero replied he was requesting the instruction on behalf of both defendants, and counsel for Delgadillo then joined in the request. Delgadillo asserted that the instruction would explain his mental state. Quintero stated that because he was relying on the defense, substantial evidence was not required. The prosecutor argued that Quintero did nothing to merit instruction on this defense. As for Delgadillo, he did not use any force on the victim and therefore there was no self-defense.
The trial court did not believe that self-defense was relevant to a charge of carjacking. Quintero argued that he still faced a gun enhancement (as a principal) for Delgadillo’s use of a weapon even if the jury found Quintero had no gun. He stated that if the only gun (Delgadillo’s) was drawn for the purpose of defending Quintero from the bat, it negated all firearm enhancements for both defendants. The prosecutor argued that Quintero could not get the benefit of self-defense on his vicarious liability for the firearm use. The trial court stated it would take up the matter later on.
In a further discussion of jury instructions, the court stated that its tentative ruling was not to give the requested instruction, since it had no relevance to the underlying counts, and the court asked Quintero if he had found any authority to support giving the instruction on the enhancement only. Quintero acknowledged he had not. The prosecutor argued that self-defense and defense of others are not available to aggressors, and appellants were the aggressors. Although the victim had a bat, the aggressors merely proceeded to aggress. When the court suggested that it first wished to address the issue of the enhancement being separated from the charge for the purpose of self-defense, Quintero argued that enhancements are part of the charged offense and become an element of the offense. Quintero’s premise was based on People v. Seel (2004) 34 Cal.4th 535 (Seel), in which the California Supreme Court determined that a jury’s premeditation finding that the Court of Appeal concluded was unsupported by substantial evidence could not be retried. According to Seel, premeditation is an element of the crime of attempted murder and not a mere sentencing enhancement. (Id. at p. 550.)
The trial court stated it would not change its ruling. The court believed that Seel did not apply in the instant case. The court found that it was not logical to allow the perpetrators of a crime to have a gun available nearby and then, depending on the victim’s degree of resistance, to resort to using the gun and claim it was used to defend themselves or another. In addition, in the instant case there was no evidence to support a defense of self-defense or defense of another to the charges in counts 1, 2, and 3. The court allowed argument on the point, however, as long as the argument was tied to the facts.
During a motion for new trial, appellants reasserted their belief that CALCRIM No. 3470 should have been read to the jury. The trial court responded that the evidence showed a gun was used by someone other than Quintero, and the evidence also showed the gun was used when the carjacking was still in progress. The court stated that Delgadillo’s acquittal for carjacking, for whatever reason, did not obviate Quintero’s vicarious liability for Delgadillo’s firearm use, which clearly occurred during the commission of the carjacking by Quintero. The jury drew a logical and reasonable inference from the evidence.
D. No Error on Due Process Violation
We agree with the trial court and conclude that CALCRIM No. 3470 was not a proper instruction to give in relation to the enhancement under section 12022.5. It is well established that an enhancement does not define a crime. Rather, it is an additional term of imprisonment added to the base term when a defendant is convicted of a crime. (People v. Rayford (1994) 9 Cal.4th 1, 8.) Enhancements generally focus on a circumstance occurring during commission of the crime or the criminal history of the defendant that is not present in all such crimes or does not apply to all perpetrators. This circumstance justifies a higher penalty than the penalty prescribed for the offense itself. This is the purpose of an enhancement. (Ibid.)
Because the firearm-use enhancement was therefore inextricably bound up with the offense to which it was alleged to apply, the defense of self-defense was not available for the enhancement alone. As stated by the trial court below, Delgadillo’s logic would allow a carjacker, or the perpetrator of another crime, to attempt to subdue a victim without the use of a firearm or other weapon. When the victim resisted, the perpetrator could then claim he used a weapon in self-defense or, as in this case, defense of a co-perpetrator.
Section 12022.53, another firearm enhancement, actually provides that the enhancements cannot be imposed if the weapon use was in lawful self-defense. There is no authority, however, for instructing the jury that the defense of self-defense can be used to defend against the enhancement alone. In fact, both the former and current jury instructions on this enhancement contain no paragraph on self-defense or defense of others. (See CALCRIM Nos. 3146, 3148-3150; CALJIC Nos. 17.19, 17.19.5.) In People v. Watie (2002) 100 Cal.App.4th 866 (Watie), the defendant argued that reversal was required on the section 12022.53 true finding because the trial court did not give a specific instruction saying that self-defense was a defense to the allegation and that the prosecution was required to prove the defendant did not act in self-defense with respect to the allegation. (Watie, supra, at pp. 885-886.) The Watie court stated that, since the jury rejected the defendant’s self-defense claims with regard to the substantive offense, there was no need to separately instruct on self-defense with regard to the enhancement. (Id. at pp. 876, 886.) In the instant case, there was no claim of self-defense on the substantive offenses, and we agree with the trial court that an instruction on self-defense with respect to the firearm-use only was neither reasonable nor logical based on the evidence.
Furthermore, the instruction on defense of another was read to the jury in the form of CALCRIM No. 2514 with respect to Delgadillo’s possession of a firearm by a felon in count 4. The jury convicted Delgadillo of this offense, thereby rejecting the concept that he drew his gun only in defense of Quintero. Therefore, any error in not reading an instruction on defense of another with respect to the allegations in the other counts was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836.)
In that same vein, we reject Quintero’s argument that the trial court improperly limited CALCRIM No. 2514 to Delgadillo. The instruction pertains to an offense with which only Delgadillo was charged. Therefore, there was no reason to include Quintero in the instruction.
Appellant’s arguments are without merit. We conclude the trial court ruled correctly and no due process violation occurred.
IV. Sufficiency of Evidence Supporting Gang Allegation
A. Appellants’ Arguments
Delgadillo claims that, assuming arguendo Quintero committed the carjacking for the benefit of or in association with the NSP gang, there is insufficient evidence to support the jury’s finding on the gang allegation as to Delgadillo. He claims there is no substantial evidence of the required specific intent.
Quintero argues that substantial evidence did not show that these crimes were for the benefit of, at the direction of, or in association with a criminal street gang or that Quintero had the required specific intent. The evidence showed that his fellow gang members, a sizeable portion of the few active members, urged him to leave Benza alone and to get back in their car. Moreover, the prosecution’s gang expert testified that if Quintero’s friends were urging him to get back in the car, the crime could not have been for the benefit of or at the direction of the gang.
B. Relevant Authority
Section 186.22, subdivision (b) requires proof that the charged felony was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) In reviewing the sufficiency of the evidence for the gang allegation, we examine the record in the light most favorable to the judgment, to determine whether there is substantial evidence that would lead a reasonable trier of fact to find guilt beyond a reasonable doubt. (People v. Gaut, supra, 95 Cal.App.4th at p. 1430.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (Ibid.) The jury’s true finding on the gang allegation may not be stricken unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support it. (Ibid.)
In order to assist the trier of fact, the culture and habits of criminal street gangs are proper subjects for an expert’s opinion. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) An expert may express an opinion based on facts given in a hypothetical question in which the expert is asked to assume the truth of the facts, which must be rooted in the evidence. (Id. at p. 618.) An expert may also base his or her testimony on reliable material not admitted into evidence—or even inadmissible material—as long as it is of a type reasonably relied upon by experts in that particular field. (Ibid.)
C. Evidence Sufficient
We disagree with appellants and conclude that there was sufficient evidence that the instant crimes were for “the benefit of, at the direction of, or in association with” a criminal street gang and that the offenses were committed with the intent to “promote, further, or assist” in criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
The jury heard the gang expert, Perez, testify regarding appellants’ membership in the NSP gang. The expert commented on photographs taken from NSP members that showed Quintero with other gang members, who were making the gang hand signal. Perez knew Delgadillo as an NSP gang member from Field Identification cards and from speaking with Altadena Sheriff’s deputies. She stated that the NSP gang had 15 active members in 2005, when the instant crimes were committed, and that there were well over 50 associates. The liquor store where the carjacking took place was in NSP territory.
When given a hypothetical situation matching the evidence in the instant case, Perez was of the opinion that the gang member who approached Benza used words and actions intended to inform Benza that the gang was claiming rights to that part of town. The facts also showed that the gang member was trying to intimidate Benza by letting him know he should not be there because it was the gang’s territory. When such actions are taken while other gang members are watching, it tends to give the actor more credibility within his gang. The fact that other gang members were standing nearby and observing Quintero and Delgadillo shows that appellants’ actions were in furtherance of gang activity because the very presence of several gang members is a great intimidation factor for the victim. The victim could assume the observing members were poised to help out their fellow gang members should anything go amiss. If another gang member standing back pulled out a gun, this would also be an act in association with or in furtherance of gang activity. According to Perez, the second the victim says “no” or indicates that he is not going to go along with the speaker’s program, the gun-wielding person would become involved to assist and help that gang member. He would be assisting in order to facilitate the crime—to take whatever piece of property the gang members were after.
The jury also heard testimony from Pasadena Police Officer Alejandro Peinado, who listened to the recording from the device that was surreptitiously placed in the police car with appellants. Quintero talked about “approaching the victim and telling him he was a gang member, and this was his neighborhood, and he ordered him out of the car.” Quintero bragged to Delgadillo that the victim got out like a “weenie.” Quintero spoke expansively about the area being his neighborhood and that he was from the NSP gang. He said that the homies were going to view him and Delgadillo in a positive light for putting in work. Quintero vowed on his neighborhood that if the victim showed up and testified he was planning on having all his home boys show up to court so they could beat him and have him “smoked.”
Delgadillo stated on the recording that he armed himself in order to aid Quintero, and he therefore cannot divorce himself from Quintero’s actions. He admitted that he acted in association with Quintero and with the specific intent to aid Quintero in his efforts to take the car, and he therefore cannot claim that the evidence was insufficient as to him.
The fact that someone was heard to say “Go back to the car” is of no significance when there was no evidence as to the identity of the speaker or the reasons for shouting this. For example, there was no evidence that this was an order from a gang member of superior rank, which could perhaps cast doubt on whether appellants’ acts were for a gang purpose. Delgadillo said in his interview that he did not hear these words. The possibility that someone at the scene may have stated this does not detract from Quintero’s motive to enforce his gang’s territorial claims and from Delgadillo’s intent to aid in Quintero’s endeavor.
We conclude there was substantial evidence that the crimes were committed for a gang purpose by appellants and that their intent was to further criminal activity by gang members. Appellants’ arguments are without merit.
V. CALCRIM 220 (Reasonable Doubt Instruction)
A. Appellants’ Arguments
Delgadillo urges that the CALCRIM instruction on reasonable doubt should be deemed unconstitutional because it does not define “abiding conviction.” He states that since the deletion of the “moral certainty” language in the 1994 revision of CALJIC No. 2.90, it has been impossible for a jury to know the degree of persuasion that an abiding conviction requires. He asserts that a jury is unable to afford a criminal defendant due process of law because it does not adequately understand what reasonable doubt means. He claims it is reasonably conceivable a jury might construe the “abiding conviction” language as a mandate to apply a standard of proof that is tantamount to the “clear and convincing” evidence standard. Quintero presumably joins in this argument.
B. CALCRIM No. 220 Not Constitutionally Infirm
We review de novo the validity of the trial court’s jury instructions. (People v. Burch, supra, 148 Cal.App.4th 862, 870.) The trial court instructed the jury in accordance with CALCRIM No. 220 that the defendant is presumed innocent unless the People prove each element of the crime or special allegation beyond a reasonable doubt. The instruction defined “[p]roof beyond a reasonable doubt” as “proof that leaves you with an abiding conviction that the charge is true.” The jury was told that to decide whether the People had proved their case beyond a reasonable doubt it must “impartially compare and consider all the evidence that was received throughout the entire trial.”
The trial court read CALCRIM No. 220 as follows: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. When I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. In deciding whether or not the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal, and you must find him not guilty.”
At the outset we note that appellants did not take issue with CALCRIM No. 220 during their discussion of the proposed jury instructions. “Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’” (People v. Campos (2007) 156 Cal.App.4th 1228, 1236.)Appellants have therefore forfeited their challenge to the language of CALCRIM No. 220.
In any event, as this court noted in People v. Campos, supra, 156 Cal.App.4th 1228, the California Supreme Court and the Courts of Appeal in every appellate district have rejected similar challenges to the language used in CALCRIM No. 220. (People v. Campos, supra, at p. 1239 and cases cited therein.) These cases concluded that the contents of the reasonable doubt instruction did not violate due process or lessen the burden of proof below that of finding guilt beyond a reasonable doubt. As stated in People v. Campos, “The definition of reasonable doubt in CALCRIM No. 220 is derived from CALJIC No. 2.90 which in turn was taken directly from the language of section 1096 which, when given, requires ‘no further instruction . . . defining reasonable doubt . . . .’ (§ 1096a.) In Victor v. Nebraska (1994) 511 U.S. 1, 14–15 [], the United States Supreme Court sustained the then language of CALJIC No. 2.90, and stated: ‘An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.’” (People v. Campos, supra, at p. 1239.) Appellants’ contention is without merit.
DISPOSITION
The judgments are affirmed.
We concur: J. DOI TODD, J. ASHMANN-GERST, J.
“If you find the defendant[s] guilty of [one or more of] the crime[s] charged [or an attempt to commit the crime[s] charged] [or a lesser and included felony offense], you must determine whether the defendant[s] _______ personally used a firearm in the commission of [that] [those] [felony] [felonies].
“The word ‘firearm’ includes [a ____.] [any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.] [The ‘firearm’ need not be operable.]
“The term ‘personally used a firearm,’ as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.
“The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
“Include a special finding on that question in your verdict, using a form that will be supplied for that purpose.”
“1. The defendant reasonably believed that Albert Quintero was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;
“2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
“AND
“3. The defendant used no more force than was reasonably necessary to defend against that danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to someone else. Defendant’s belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful defense of another.
“When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.
“The defendant’s belief that someone else was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.
“A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating.
“The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful defense of another. If the People have not met this burden, you must find the defendant not guilty of personal use of a firearm.”
“1. The defendant reasonably believed that Albert Quintero was in imminent danger of suffering significant or substantial physical injury;
“2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
“3. A firearm became available to the defendant without planning or preparation on his part;
“4. The defendant possessed the firearm temporarily, that is, for a period no longer than was necessary or reasonably appeared to have been necessary for defense of another;
“5. No other means of avoiding the danger of injury was available;
“AND
“6. The defendant’s use of the firearm was reasonable under the circumstances.
“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to someone else. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful defense of another.
“When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.
“The defendant’s belief that someone else was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.
“The People have the burden of proving beyond a reasonable doubt that the defendant did not temporarily possess the firearm in defense of another. If the People have not met this burden, you must find the defendant not guilty of this crime.”