Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI800373. Eric M. Nakata, Judge.
Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and Appellant Julius Earl Edwards.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant Jerome Julian.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found codefendants, Julius Earl Edwards (Edwards) and Jerome Julian (Julian), guilty of burglary (Pen. Code, § 459), and actively participating in a criminal street gang (§ 186.22, subd. (a)). The jury found true the allegations that Edwards and Julian committed the burglary to benefit a criminal street gang. (§ 186.22, subd. (b)(1)(B).) The trial court found true the allegations that Edwards suffered (1) a prior strike conviction (§ 1170.12, subds. (a) & (d)); (2) a prior serious felony conviction (§ 667, subd. (a)(1)); and (3) five prior felony convictions, for which he served prison terms (§ 667.5). Julian admitted suffering a prior felony conviction, for which he served a prison term. (§ 667.5.) The trial court sentenced Edwards to state prison for a term of 25 years. The trial court sentenced Julian to state prison for a term of 12 years.
All further statutory references will be to the Penal Code, unless otherwise indicated.
It appears from the record that a single jury served for both cases.
The trial court’s minute order reflects that the court found true the allegation that Edwards suffered prior convictions pursuant to section 667.1. The information alleges that Edwards suffered prior convictions pursuant to section 667.5. Based upon the language of the two statutes, we infer that the minute order is incorrect, and the trial court found Edwards suffered five prior convictions pursuant to section 667.5.
Julian makes five contentions. First, Julian argues that the evidence supporting his conviction for participating in a criminal street gang (§ 186.22, subd. (a)) does not meet the substantial evidence standard. Second, Julian contends that the evidence supporting the gang enhancement (§ 186.22, subd. (b)(1)(B)) does not meet the substantial evidence standard. Third, Julian asserts that the trial court erred by admitting the unauthenticated hearsay statements contained in a complaint, an information, and minute orders related to the convictions of Richard Vernal Macklin and Brian Allen Sayer (exh. 50). Fourth, Julian contends that the trial court incorrectly instructed the jury on the element of “pattern of criminal gang activity.” Fifth, Julian asserts that the trial court incorrectly instructed the jury to disregard Julian’s testimony, if it found that Julian was Edwards’s accomplice. Edwards contends that he was denied effective assistance of trial counsel, for a variety of reasons. Edwards also joins in Julian’s arguments “to the extent that those arguments may benefit [Edwards].” Likewise, Julian joins in all arguments raised by Edwards “which may accrue to his benefit.” We affirm the judgments.
FACTUAL AND PROCEDURAL HISTORY
We present the facts in three sections: (1) the prosecution’s burglary case; (2) Julian’s defense concerning the burglary; and (3) the gang evidence.
A. THE PROSECUTION’S BURGLARY CASE
On February 20, 2008, Gilbert was working in his home office. During the day, Gilbert looked through his office window and saw Edwards using a cell phone, walking briskly up the victims’ driveway. Gilbert saw Edwards ring the victims’ doorbell several times and knock on the door. Gilbert then saw Edwards use his body to break through the front door of the victims’ house. Gilbert immediately called 911.
Approximately 30 seconds later, a small black car stopped in front of the victims’ house. Julian exited the vehicle, entered the victims’ house through the front door, and closed the front door. After Julian exited the car, the car continued down the street, turned around, and stopped in front of a different house.
When the police arrived, Edwards and Julian immediately exited through a window in the back of the victims’ house. San Bernardino County Sheriff’s Deputy Rodriguez saw the two men crawling through the window, and told them to “get on the ground.” Edwards and Julian ran along the side of the house. Edwards opened a gate, where Deputy Swoboda was waiting; Deputy Swoboda detained Edwards. Julian jumped over a fence and ran through the victims’ neighbor’s front yard. As Julian jumped over the fence, he dropped a bag or pillowcase.
Deputy Holland was driving towards the victims’ house when he saw a black car that matched the description of the car Julian had exited. Almost immediately after seeing the car, and the female driver inside the car, Deputy Holland heard over the police radio that Deputy Kirby was pursuing Julian, on foot, through backyards. Deputy Holland began running through the residences’ front yards. Julian jumped over a fence into a front yard where Deputy Holland was running; Deputy Holland detained Julian.
Gilbert contacted one of the victims to let her know deputies were at her house. When the victim arrived home, she saw that her “mattress was thrown up, [her] drawers were all emptied, [her] jewelry box was dumped out[, and t]here was stuff just strewn through the house.” The victim had not left her house in that condition. Deputy Rodriguez saw white cotton gloves and a cell phone lying by the victims’ house.
B. JULIAN’S BURGLARY DEFENSE
In his defense, Julian testified that he met Edwards in February 2008. Julian first met Edwards at Julian’s girlfriend’s apartment. Edwards was at the apartment with Julian’s girlfriend’s sister.
The second time Julian encountered Edwards, Edwards told Julian to take a car ride with him, and Julian complied. After driving for a while, Edwards pointed a gun at Julian and told Julian to “give him everything that [he] ha[d] and [to] get out of the car.” Julian complied.
Approximately three or four days later, Julian was walking home from school when he encountered Edwards a third time. Edwards stopped his car and pointed a gun at Julian. Edwards then exited the car and took “everything out of [Julian’s] pockets.” Edwards took approximately $20 from Julian, pushed or punched Julian, and then left.
On February 20, 2008, the day of the burglary, Julian encountered Edwards a fourth time. Julian was at a gas station, pumping gas into his cousin’s car. Edwards approached Julian and said, “‘Hey, let’s go rob this house. I’m going to leave you alone after this. If you rob this house with me I’ll leave you alone.’” Julian said, “no”; however, Edwards showed Julian a firearm, so Julian went with Edwards. Julian accompanied Edwards to Edwards’s house. Julian testified that he was afraid of Edwards because Edwards had told Julian that he was “357,” which Julian translated as meaning “Trey 57 Gangster Crip.”
The reporter’s transcript spells “trey” as “tray.” In this court’s experience, the spelling is typically “Trey 57.” Accordingly, we correct the reporter’s spelling to reflect the common spelling of “Trey 57.”
Julian left Edwards’s house in a black car with Edwards, Edwards’s wife, and Edwards’s four children. Edwards’s wife drove the car. Julian testified that he entered the victims’ house before Edwards. Edwards stayed in the car waiting for Julian to break into the house. Edwards gave Julian his cell phone before Julian exited the car. Edwards had already dialed and connected the phone he gave to Julian with his second cell phone, and Edwards instructed Julian to “Stay on this phone.” Julian testified that he used his shoulder to break the victims’ front door. Once Julian broke into the house, Edwards joined Julian. Julian then returned Edwards’s cell phone, and Edwards instructed Julian to “‘Run through the house and see what [he] could find.’” Julian ran through the victims’ house ransacking the rooms. Edwards then yelled, “‘The police!’” Julian exited the victims’ house through a window.
C. GANG EVIDENCE
In regard to his gang membership, Julian testified that he became a member of Trey 57 while in prison for a previous sentence; however, he stated that he was never a “real gang member” because he had not been officially “jumped in” to the gang. Julian admitted knowing that Trey 57 was a criminal street gang. Julian admitted committing the burglary in the instant case with a member of Trey 57. While in prison, Julian spent time in the prison yard with five other members of Trey 57. One member of Trey 57 gave Julian a four-inch knife, or shank, to carry for protection.
When Julian first met Edwards, Edwards introduced himself as “‘Bad [Luck] Trey 57,’” and Julian introduced himself as “‘Lil’ 7.’” Julian had a tattoo that read “Lil’ 7” on his right forearm, which he received when he was 15 years old, while in juvenile hall. Julian was 21 years old at the time of the trial in the instant case. When Julian was in prison for a prior conviction he received several more tattoos: (1) “TFS” on his right forearm, which referred to Trey Five Seven Sin Town Crips; (2) “STG” on his left arm, which referred to Sin Town Gangster; and (3) a handgun with the numbers 357 on his chest or shoulder.
Pomona Police Department Detective Freeman testified as a gang expert. Detective Freeman testified that he was familiar with the Trey 57 Crip gang, which had members in Pomona. The specific area claimed by the Trey 57 gang was in Pomona, “west of Fairplex, north of Holt, south of the 10 and east of the 71”; however, gangs were spreading throughout the region to sell narcotics.
Detective Freeman stated that older Trey 57 members will sometimes refer to the gang as “Sin Town” or “Trey 57 Sin Town Crips.” Detective Freeman testified that gang members will often display tattoos to show their gang affiliation. Gang members often have tattoos that resemble their gang hand sign. The Trey 57 gang hand sign involves extending the thumb and pointing the forefinger down, to resemble the number “7.” The tattoos on Julian’s body indicated to Detective Freeman that Julian is a member of Trey 57.
Detective Freeman explained that street gangs and individual gang members thrived on respect, and criminal activities brought respect to the gang and the gang members who committed the crimes. The primary activities of the Trey 57 gang were: narcotics sales, car thefts, carjackings, carrying firearms, assaults, attempted murders, murders, and witness intimidation. According to Detective Freeman, gang members would often steal items and sell contraband to finance various gang activities. The money allowed gang members to purchase weapons, narcotics, and the services of criminal defense attorneys.
Detective Freeman stated that if a gang member wanted to achieve a higher status within a gang, then the gang member would often commit crimes on behalf of the gang. Specifically, Detective Freeman discussed Brian Sayer’s (Sayer) and Richard Macklin’s (Macklin) attempted murder case. Sayer and Macklin were members of Trey 57. In 2006, Macklin, while accompanied by Sayer, shot a fellow gang member approximately nine times, because the fellow gang member was suspected of working with the police. Macklin was convicted of attempted murder.
When the prosecutor instructed Detective Freeman to assume that the case presented by the prosecution was true, Detective Freeman opined that the burglary was committed to benefit the Trey 57 gang because the money obtained from the crime could be used to purchase cars, weapons, narcotics, or attorneys. Further, two gang members committing a crime together was beneficial to the two gang members because they would earn respect within the gang and could vouch for one another’s report of the crime.
DISCUSSION
A. JULIAN’S CONTENTIONS
We begin our analysis with Julian’s contentions. We address the issues raised by Edwards after we have finished discussing all five alleged errors set forth by Julian.
1. PARTICIPATION IN A STREET GANG
Julian contends that the evidence supporting his conviction for participating in a criminal street gang (§ 186.22, subd. (a)), does not meet the substantial evidence standard. We disagree.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘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.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) “Gang evidence, including expert testimony, is relevant and admissible to prove the elements of the substantive gang crime and gang enhancements.” (People v. Williams (2009) 170 Cal.App.4th 587, 609 [Fourth Dist., Div. Two] (Williams).)
“The substantive offense defined in section 186.22[, subdivision] (a) has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is the first element of the substantive offense.... The second element is ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and the third element is that the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42 Cal.4th 516, 523.) We address the three elements in sequence.
“Active participation is defined as ‘involvement with a criminal street gang that is more than nominal or passive.’ [Citation.] It does not require that ‘a person devot[e] “all... or a substantial part of his time and efforts” to the gang. [Citation.]’ [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) Julian admitted that he was a member of Trey 57. Julian testified that he fraternized with Trey 57 members while in prison and carried a knife for protection. It can be inferred that Julian was also protecting his fellow gang members by carrying the knife. Additionally, Julian’s various tattoos, related to Trey 57, were constant advertisements for the gang. Moreover, Julian admitted committing the burglary in the instant case with a fellow member of Trey 57; and burglaries provide gangs with financial support. Accordingly, substantial evidence supports a finding that Julian was an active participant in Trey 57.
Julian admitted knowing that Trey 57 was a criminal street gang. Julian testified that his brother was a member of Trey 57, and had been to prison “three or four” times for selling crack cocaine and parole violations. Julian further testified that he too was a member of Trey 57 and had been to prison for possessing crack cocaine for sale. Further, while in prison, Julian fraternized with five other members of Trey 57 in the prison yard. The foregoing was substantial evidence that Julian had knowledge that members of Trey 57 have engaged in a pattern of criminal gang activity.
Julian admitted burglarizing the victims’ house in the instant case with another member of Trey 57. Burglaries provide a financial means for gang members to buy weapons and narcotics. Consequently, substantial evidence supports the finding that Julian willfully furthered or assisted in the felonious criminal conduct of Trey 57 gang members by (1) assisting Edwards in the burglary, and (2) giving the gang a means of financial support.
In sum, substantial evidence supports the jury’s finding that Julian was an active participant in a criminal street gang. (§ 186.22, subd. (a).)
Julian contends that substantial evidence does not support the jury’s finding that Trey 57 engaged in a pattern of criminal gang activity, i.e., the second element of the offense. Julian argues that the jury was instructed that the pattern of gang activity could be established by (1) evidence of the burglary in the instant case, and (2) evidence of Sayer’s and Macklin’s attempted murder. Julian argues that the evidence of Sayer and Macklin’s offense was not substantial because (1) the documents establishing Sayer’s and Macklin’s convictions (exh. 50) were not shown to the expert witness or discussed by any prosecution witness; and (2) no evidence, other than the expert’s opinion, established that Sayer and Macklin were members of Trey 57. In other words, Julian contends that there is a lack of foundational support for the finding that Trey 57 engaged in a pattern of criminal gang activity.
First, we address Julian’s concerns regarding exhibit 50. Exhibit 50 consisted of (1) a felony complaint filed against Macklin and Sayer; (2) an information filed against Macklin and Sayer charging a variety of offenses, including attempted murder (§§ 664, 187); and (3) a certified printout of the Los Angeles County Superior Court’s electronic docket, which reflected Macklin was found guilty of attempted murder, and that the crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(A)). The trial court admitted exhibit 50 pursuant to the public records exception to the hearsay rule. (Evid. Code, §§ 1280, 452.5.)
The complaint and information reflect that Sayer’s last name is “Sawyer.”
We review the trial court’s decision to admit evidence pursuant to the public records exception for an abuse of discretion. (People v. Martinez (2000) 22 Cal.4th 106, 119-120 (Martinez).) The trial court’s ruling regarding the exhibit’s admissibility “‘implies whatever finding of fact is [a] prerequisite thereto.’” (Id. at p. 120.)
Evidence Code section 1280 authorizes hearsay documents to be admitted at trial to prove an act, condition, or event if: (1) “the writing was made by and within the scope of duty of a public employee”; (2) the writing was drafted at or near the time of the act, condition, or event; and (3) the sources of information, method, and time of preparation indicate the document’s trustworthiness.
The foregoing public record exception, or official record exception, permits a trial “‘court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation... if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness.’ [Citations.]... [A] court may rely on the rebuttable presumption that [an] official duty has been regularly performed (Evid. Code, § 664) as a basis for finding that the foundational requirements of Evidence Code section 1280 are met.’ [Citation.]” (People v. George (1994) 30 Cal.App.4th 262, 274; see also Martinez, supra, 22 Cal.4th at pp. 128-130.) “‘This presumption shifts the burden of proving the foundational issue of trustworthiness of the method of preparing the official writing to the party objecting to the admission of the official writing. [Citation.]’ [Citation.]” (Martinez, at p. 130, fn. omitted.)
An official record of conviction is admissible pursuant to the foregoing public records exception (Evid. Code, § 1280) to prove the commission of the pertinent criminal offense. (Evid. Code, § 452.5, subd. (b); People v. Duran (2002) 97 Cal.App.4th 1448, 1461.) Courts have debated which documents fall within the definition of an “official record of conviction”; however, most authorities have concluded “that the record of conviction includes the trial court record. [Citations.]” (Duran, at p. 1462.)
The complaint and information included in exhibit 50 were filed with the trial court, and the electronic docket printout was certified by the clerk of the Los Angeles County Superior Court. Accordingly, we infer that the documents were part of the trial court record, and therefore, exhibit 50 was admissible pursuant to Evidence Code sections 452.5 and 1280. Consequently, a witness was not required to testify about the exhibit, and the trial court could apply the presumption that an official duty was regularly performed, in order to satisfy the foundational requirements. Therefore, we find Julian’s argument concerning the lack of testimony in regard to exhibit 50 to be unpersuasive.
Next, we address Julian’s contention that there was a lack of substantial evidence that Trey 57 members participated in a pattern of criminal gang activity, because no evidence, other than the expert’s opinion, established that Sayer and Macklin were members of Trey 57. Contrary to Julian’s position, exhibit 50 reflects that Sayer and Macklin stipulated that Trey 57 is a criminal street gang; and that Macklin was found guilty of committing attempted murder to benefit a criminal street gang. Accordingly, there was documentary evidence supporting the expert’s opinion that Macklin was a member of Trey 57.
2. GANG ENHANCEMENT
Julian contends that the evidence supporting the gang enhancement (§ 186.22, subd. (b)(1)(B)), does not meet the substantial evidence standard. We disagree.
Our standard of review for issues involving substantial evidence is set forth ante. Consequently, we do not repeat it here.
“Punishment for a crime may be enhanced when the crime is ‘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.’ [Citations.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 820.)
Julian admitted that he was a member of Trey 57, and that he burglarized the victims’ house with a member of Trey 57. Julian’s admission provides substantial evidence that the burglary was committed in association with a criminal street gang. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [Fourth Dist., Div. Two] [“the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members”].)
Julian also testified that he broke into the victims’ house, informed Edwards over the cell phone that he was in the house, waited for Edwards inside the house for approximately one minute, and then followed Edwards’s directions to run through the various rooms of the house stealing the victims’ possessions. Julian’s testimony provides substantial evidence that he committed the burglary with the specific intent of assisting the criminal conduct of a Trey 57 member, because he broke into the house for Edwards, and assisted Edwards with taking the victims’ belongings. Accordingly, we conclude that substantial evidence supports the gang enhancement (§ 186.22, subd. (b)(1)(B)).
Julian asserts that substantial evidence does not support the enhancement because (1) there is insufficient evidence that Trey 57 engaged in a pattern of criminal gang activity, and (2) there is insufficient evidence that Julian committed the burglary to benefit Trey 57.
We have concluded ante, that substantial evidence supports the finding that Trey 57 engaged in a pattern of criminal activity. Accordingly, we do not repeat that analysis here.
We now turn to Julian’s assertion that substantial evidence does not support a finding that the burglary was committed to benefit Trey 57. We are not persuaded by Julian’s argument, because Julian ignores the statute’s alternative element of a crime committed “in association with any criminal street gang.” (§ 186.22, subd. (b)(1).) Nevertheless, we will briefly address Julian’s argument, because the issue is easily resolved.
Detective Freeman testified that Trey 57 claimed a portion of Pomona as its “territory.” He then stated, “We’re seeing more and more of a trend that—with the narcotics trade and stuff like that [street gangs are] moving out and more transitory.” Detective Freeman further testified that a primary activity of Trey 57 was selling narcotics, and that thefts provided money for gangs to purchase sellable quantities of narcotics. Julian admitted that he and his brother, who are both Trey 57 members, had been to prison for possessing crack cocaine for sale. The foregoing is substantial evidence that the burglary was committed to benefit a criminal street gang, because the jury could reasonably infer from the evidence that Trey 57 was expanding its narcotics trading area into Hesperia; Julian burglarized the victims’ house to obtain money for a sellable quantity of narcotics; and selling narcotics benefitted Trey 57 by providing money for weapons and more illegal drugs.
3. EXHIBIT 50
Julian contends that the trial court erred by admitting the unauthenticated hearsay statements contained in exhibit 50. We analyzed this issue ante, and concluded that the trial court did not abuse its discretion by admitting exhibit 50 pursuant to the public records exception to the hearsay rule. (Evid. Code, §§ 1280, 452.5.) Nevertheless, we will address Julian’s concerns related to our Supreme Court’s opinion in People v. Wheeler (1992) 4 Cal.4th 284, which Julian relies upon to support his position that exhibit 50 was incorrectly admitted into evidence.
Julian asserts that exhibit 50 was improperly admitted because it was utilized to prove the fact that Macklin’s and Sayer’s criminal acts occurred, rather than the fact that Macklin was convicted of the charged offenses. In Wheeler, our Supreme Court concluded that records of a misdemeanor conviction were admissible pursuant to the official records exception to the hearsay rule, but the conviction records were only competent for proving that the conviction occurred; the conviction records do not prove that the underlying criminal conduct occurred. (People v. Wheeler, supra, 4 Cal.4th at p. 300, fn. 13.) Approximately four years after the Wheeler decision, in 1996, our Legislature enacted Evidence Code section 452.5 which provides, “An official record of conviction... is admissible pursuant to [Evidence Code] section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense....” (Evid. Code, § 452.5, subd. (b).) It is our opinion that Evidence Code section 452.5 changed the law, and created a hearsay exception that was lacking at the time Wheeler was decided. (People v. Wesson (2006) 138 Cal.App.4th 959, 968; People v. Duran, supra, 97 Cal.App.4th at p. 1459.) Accordingly, we do not find Julian’s reliance on Wheeler to be persuasive.
4. PATTERN OF CRIMINAL GANG ACTIVITY INSTRUCTION
Julian contends that because a conviction for actively participating in a gang (§ 186.22, subd. (a)), and the sentence enhancement related to gangs (§ 186.22, subd. (b)), both require a finding that members of the gang have engaged in a pattern of criminal gang activity, which is proven by predicate offenses—the elements of those predicate offenses are themselves elements of the substantive gang offense and the gang enhancement. Consequently, it is Julian’s assertion that the trial court erred by not instructing the jury on the elements of the predicate offense, e.g., attempted murder (§§ 664, 187), which was used to establish the element of a “pattern of criminal gang activity.” We disagree.
The People assert that Julian forfeited the foregoing argument by failing to request a clarifying jury instruction at the trial court. We choose to address the merits of Julian’s contention, in order to forestall a future claim of ineffective assistance of counsel.
A trial court has a sua sponte duty to instruct the jury on the basic principles of law that are applicable to the case; this duty requires the trial court to instruct the jury on all of the elements of the charged offenses and enhancements. (Williams, supra, 170 Cal.App.4th at pp. 638-639.) A “pattern of criminal gang activity” is defined as “the commission [or] attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following [enumerated] offenses.” (§ 186.22, subd. (e).)
As we concluded ante, the element of “pattern of criminal gang activity” was satisfied by (1) Julian’s admission that Trey 57 was a criminal street gang; (2) Julian’s testimony his brother was a member of Trey 57, and had been to prison “three or four” times for selling crack cocaine and parole violations; (3) Julian’s testimony that he too was a member of Trey 57 and had been to prison for possessing crack cocaine for sale; and (4) Julian’s testimony that, while in prison, he fraternized with five other members of Trey 57 in the prison yard. Further, Macklin’s conviction for attempted murder further supported a finding that Trey 57 engaged in a pattern of criminal gang activity.
Because the evidence supporting the element of a “pattern of criminal gang activity” relates to prior convictions, rather than the commission of the predicate offenses, we disagree that the trial court had a duty to instruct on the elements of the predicate offenses. The jury’s task was not to decide whether Macklin, Julian, and/or Julian’s brother committed the various offenses, rather, they only had to decide if the gang members had been convicted. Accordingly, the elements of the predicate offenses were not necessary for the jury’s deliberations.
Nevertheless, if we were to assume that Julian is correct, and therefore assume that the trial court erred by not instructing the jury on the elements of the predicate offenses, then any such error would be harmless beyond a reasonable doubt. (Williams, supra, 170 Cal.App.4th at p. 627 [applying harmless beyond a reasonable doubt standard to section 186.22 instructional error].)
Macklin and Sayer were accused of going to a fellow gang member’s house, walking onto the porch, and shooting the victim approximately nine times. “‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citation.]” (People v. Stone (2009) 46 Cal.4th 131, 136.) There is nothing indicating that an element of attempted murder (§§ 664, 187), is missing from Macklin’s and Sayer’s offense. A reasonable juror could infer that Macklin and Sayer intended to kill the victim by going to the victim’s house and shooting him nine times; shooting the victim nine times is also evidence of a direct act toward accomplishing the intended killing. Accordingly, any error in failing to instruct the jury on elements of attempted murder was harmless beyond a reasonable doubt.
Additionally, Julian testified that both he and his brother had been to prison for possessing crack cocaine for sale. (Health & Saf. Code, § 11351.5.) Such a crime is complete when a person “possesses for sale or purchases for purposes of sale cocaine base.” (Ibid.) The record in the instant case does not reveal that an element of the offense might be missing. Accordingly, any error the trial court may have made by not instructing the jury on the elements of the predicate offenses was harmless beyond a reasonable doubt.
5. ACCOMPLICE TESTIMONY INSTRUCTION
a) Instruction
The trial court gave the jury an edited version of CALCRIM No. 334, regarding accomplice testimony. The following reflects the trial court’s instruction: “Before you may consider the testimony of... Julian as evidence against... Edwards, you must decide whether... Julian was an accomplice to those crimes. A person is an accomplice if he is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he personally committed the crime or if: [¶] 1. He knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 2. He intended to, and did in fact... aid, facilitate, promote, encourage, or instigate the commission of the crime or participate in a criminal conspiracy to commit the crime. [¶] The burden is on the defendant to prove that it is more likely than not that... Julian was an accomplice. [¶] If you decide that a witness was not an accomplice, then supporting evidence is not required and you should evaluate his testimony as you would that of any other witness.”
b) Analysis
Julian contends that the trial court erred by giving a truncated version of the accomplice testimony instruction (CALCRIM No. 334), which effectively directed the jury to disregard Julian’s testimony. We disagree.
Our review of the accomplice testimony instruction reveals that the trial court failed to instruct the jury on how to treat Julian’s testimony if it concluded that Julian was Edwards’s accomplice. The instruction only informed the jury that if it concluded Julian was not Edwards’s accomplice, then it should evaluate Julian’s testimony in the same manner as any other witness. Accordingly, Julian’s argument that the trial court effectively instructed the jury to disregard Julian’s testimony is unpersuasive, because no such instruction was given.
Julian asserts that the trial court erred by omitting the portions of CALCRIM No. 334 that instruct the jury that (1) an accomplice’s testimony requires corroboration, but does not need to be disregarded, and (2) a person who commits a crime under duress is not an accomplice. Assuming that Julian is correct, and therefore assuming that the trial court erred, the error is harmless beyond a reasonable doubt. The trial court did not instruct the jury to disregard Julian’s testimony if it concluded that he was Edwards’s accomplice; therefore, there is no reason to conclude that the jury disregarded Julian’s testimony.
6. EDWARDS’S CONTENTIONS
Julian asserts that he adopts and joins in Edwards’s arguments to the extent that they benefit Julian. Edwards’s appellate contentions relate to the alleged ineffective assistance of his trial counsel. Edwards and Julian had different trial attorneys. Accordingly, we conclude that Edwards’s contentions will not benefit Julian, and therefore, we do not analyze Edwards’s arguments in relation to Julian.
B. EDWARDS
1. INEFFECTIVE ASSISTANCE
Edwards contends that his trial counsel was ineffective for (1) not objecting to Julian’s testimony about Edwards’s prior bad acts, e.g., Edwards robbing Julian; (2) not requesting that the trial court instruct the jury to limit its consideration of Julian’s testimony concerning defendant’s prior bad acts; and (3) failing to move the trial court to sever Edwards’s trial from Julian’s trial. Edwards asserts that “there is... a reasonable probability that the flood of bad act and uncharged crimes evidence affected the verdict.” We disagree.
“‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶]... under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)
a) Objection
First, we address Edwards’s contention that his trial counsel was ineffective for not objecting to Julian’s testimony about Edwards’s prior bad acts. Edwards’s trial attorney portrayed Julian’s stories concerning Edwards’s prior bad acts as “self-serving and unbelievable.” The central theme of Edwards’s closing argument was that the witnesses against Edwards lacked credibility, and therefore the prosecution failed to establish the elements of the crimes.
It was reasonable for Edwards’s trial attorney not to object to Julian’s testimony because Julian’s stories about being afraid of Edwards could be utilized as prime examples of Julian’s lack of credibility, considering that Julian had multiple opportunities to escape from Edwards prior to the burglary, but chose not to. In other words, Edwards’s trial attorney was able to use the prior bad act stories to discredit Julian; therefore, it was reasonable for him to not object. Accordingly, counsel’s performance did not fall below an objective standard of reasonableness under prevailing professional norms.
Nevertheless, we note that Edwards’s trial attorney moved for a mistrial during Julian’s testimony, because he believed that Edwards’s was being denied a fair trial. Edwards’s trial attorney asserted that he did not have time to investigate, and therefore refute, Julian’s assertions regarding Edwards’s parole status and gang affiliations. The trial court denied the motion. Additionally, Edwards’s trial attorney objected to Julian referring to Edwards as “Bad Luck.”
Edwards contends that his trial counsel should have objected to Julian’s prior bad act testimony on the theory that the evidence was more prejudicial than probative. (Evid. Code, § 352.) Edwards’s argument presents a reasonable, alternative, tactical decision, which in hindsight might appear to be the better strategic decision. However, we cannot assess trial counsel’s performance through the lens of current circumstances, rather, we must evaluate trial counsel’s actions and inactions through the lens of all the circumstances that were present at the time of the claimed error. (People v. Adkins (2002) 103 Cal.App.4th 942, 950.) At the time Julian testified, it was a reasonable decision to use Julian’s testimony regarding the prior bad acts as a vehicle for discrediting all of his testimony. In sum, we find Edwards’s argument unpersuasive.
b) Limiting Instruction
Edwards contends that his trial counsel was ineffective for failing to request a limiting instruction regarding Julian’s prior bad act testimony.
When Julian began testifying about the first bad act involving Edwards—that Edwards said he wanted Julian to smoke marijuana with him—Edwards’s trial attorney objected, on the basis of hearsay. The trial court asked Julian’s attorney if the testimony was being offered for the truth of the matter asserted. Julian’s trial attorney stated that the testimony was being offered to show “Subsequent conduct.” The trial court then said, “On that basis. Ladies and gentlemen, this evidence is being offered to show not that the statements are true, but the effect on the listener.”
Edwards’s trial counsel also objected, on the basis of hearsay, to Julian’s testimony that he knew the police were coming to the house because Edwards told him. The trial court said that the evidence was not admissible if it was being used to prove “when they left the house”; however it was admissible to prove the effect on Julian.
The trial court’s admonishment to the jury that Julian’s testimony regarding Edwards’s prior bad acts was not to be considered for its truth, and the follow-up explanatory ruling—that the evidence was admissible only to prove the effect on Julian—could be considered, by a reasonable attorney, as sufficient instructions on how to treat the prior bad act evidence. Accordingly, we conclude that Edwards has failed to show that his trial counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, because it was reasonable to not request a limiting instruction.
Edwards asserts that his trial counsel was ineffective for not requesting a limiting instruction regarding the prior bad act evidence because the trial court’s admonition did not clarify that all of Julian’s testimony regarding prior bad acts must not be considered for the truth of matters asserted. The record does not reveal why trial counsel did not request a limiting instruction; however, it is possible that trial counsel did not wish to have the trial court call attention to the prior bad act evidence. (People v. Freeman (1994) 8 Cal.4th 450, 495.) In other words, Edwards has not demonstrated that his trial counsel was ineffective.
c) Severing Codefendants’ Trials
Edwards contends that his trial counsel was ineffective for failing to move the trial court to sever his trial from Julian’s trial.
“The Legislature has stated a preference for joint trials where defendants are jointly charged. (Pen. Code, § 1098.) In fact, a ‘“classic” case for [a] joint trial is presented when defendants are charged with common crimes involving common events and victims. [Citation.]’ [Citation.]” (People v. Singh (1995) 37 Cal.App.4th 1343, 1374.) A joint trial cannot be severed for the sole purpose of avoiding prior bad act evidence that would be inadmissible against an accused in his own separate trial. (People v. Keenan (1988) 46 Cal.3d 478, 501 (Keenan).) “Furthermore, ‘[s]everance remains largely within the discretion of the trial court. [Citations.]’ [Citation.]” (Singh, at p. 1374.)
Edwards and Julian were charged with the same substantive offenses and same gang enhancement; and the prosecution alleged that Edwards and Julian acted together when burglarizing the victims’ house. Given that (1) Edwards and Julian were jointly charged; (2) Edwards and Julian were charged with common offenses involving common events and victims; and (3) the legislative preference for joint trials, it is not likely that the trial court would have granted a severance motion. Accordingly, Edwards has failed to show that he was prejudiced by his trial counsel’s failure to request a severance.
Edwards contends that he was prejudiced by his trial counsel’s failure to request a severance because the joint trial resulted in the jury hearing about a variety of uncharged criminal acts committed by Edwards against Julian. In considering Edwards’s argument, we are mindful of our Supreme Court’s decision in Keenan. Keenan pertained to two codefendants, Keenan and Kelly, who were jointly charged with murder. (Keenan, supra, 46 Cal.3d at p. 490.) Keenan moved to sever the joint trial on the ground “that Kelly did not simply seek to exculpate himself by laying blame on [Keenan]. Rather, [Kelly’s] ‘antagonistic defense’ of duress or menace allowed him to present prejudicial evidence and argument of uncharged conduct by [Keenan], which would not have been admissible against [Keenan] in a separate trial.” (Id. at p. 500.) Our Supreme Court concluded that the trial court acted within its discretion in denying Keenan’s severance motion, because the likelihood of antagonistic testimony alone cannot support the granting of a severance motion. (Ibid.) Based upon Keenan, we are not persuaded that Edwards was prejudiced by his trial attorney’s failure to request a severance, because it is not likely such a motion would have been granted. (See People v. Singh, supra, 37 Cal.App.4th at pp. 1375-1376 [reaching a similar conclusion].)
d) Conclusion
In sum, we conclude that Edwards has not demonstrated that he was denied effective assistance of trial counsel.
2. JULIAN’S CONTENTIONS
Edwards purports to join in Julian’s appellate arguments to the extent that they will benefit Edwards. (Cal. Rules of Court, rules 8.200(a)(5), 8.360(a).) Julian did not prevail on his appellate contentions. In his opening brief, Edwards does not explain how any issue raised by Julian applies to him, or how he suffered prejudice from the alleged errors. Nevertheless, in his reply brief, Edwards asserts that substantial evidence does not support a finding that he (1) committed the burglary with the specific intent to benefit Trey 57, or (2) in association with Trey 57. We will address Edwards’s substantial evidence arguments, despite his failure to specifically designate the issues in his opening brief, as ones that will “benefit him.” (See People v. Roscoe (2008) 169 Cal.App.4th 829, 840 [issues not raised in the appellant’s opening brief are forfeited].) We do not address the other contentions raised by Julian, in relation to Edwards, because it is not our function to determine which issues might “benefit” Edwards. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
3. SUBSTANTIAL EVIDENCE
Edwards asserts that the evidence supporting the finding that he committed the burglary to benefit Trey 57, or in association with Trey 57, does not qualify as substantial. We disagree.
The evidence supporting Edwards’s gang enhancement is essentially the same as the evidence supporting Julian’s gang enhancement, except that Edwards’s Trey 57 related tattoos are different than the tattoos on Julian’s body. Otherwise, the evidence is substantially the same: Julian testified that both Edwards and he were members of Trey 57, and Detective Freeman testified that burglaries provided street gangs with a means of purchasing weapons and controlled substances. This court has previously concluded that “‘the jury could reasonably infer the requisite association from the very fact that [the] defendant committed the charged crimes in association with fellow gang members.’” (Williams, supra,170 Cal.App.4th at p. 625.) The evidence delineated ante, supports a finding that Edwards and Julian were members of Trey 57, a criminal street gang, and that they burglarized the victims’ house together. Consequently, substantial evidence supports the conclusion that the burglary was committed in association with a criminal street gang.
Edwards relies on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 to support his assertion that the record does not contain substantial evidence. In Briceno, the reviewing court concluded that a gang expert’s testimony, which was based primarily on hypothetical situations, could help to establish that the defendant’s crime ultimately benefitted the gang; however, the expert’s testimony “says nothing about [the defendant’s] specific intent in committing the robberies.” (Id. at p. 1079.) The Ninth Circuit Court noted that evidence of the defendant’s intent was “lacking,” because there was no evidence that the crime occurred within the gang’s territory; that the crime occurred within a rival gang’s territory; or that either defendant made their gang membership known to the victims. (Id. at p. 1081.) Accordingly, the Ninth Circuit Court concluded that the gang enhancement was not supported by substantial evidence, specifically, the element of a “‘specific intent to promote, further, or assist in any criminal conduct by gang members.’” (§ 186.22, subd. (b)(1)). (Briceno, at p. 1082.)
Based upon Briceno, Edwards argues that the instant case is lacking “any evidence that [Edwards] had the specific intent to benefit the Trey 57 gang or that he committed a burglary at the direction of or in association with the Trey 57 gang.”
The relevant statute provides: “[A] person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall,... be punished as follows....” (§ 186.22, subd. (b)(1).) As one can see from reading the statute, “a ‘specific intent to benefit the gang is not required.’ [Citation.]” (People v. Leon (2008) 161 Cal.App.4th 149, 163, fn. omitted.) Consequently, we do not find Edwards’s argument on this point to be persuasive. Further, we have concluded ante, that substantial evidence supports the finding that Edwards committed the burglary in association with Trey 57.
DISPOSITION
The judgments are affirmed.
We concur: McKINSTER, Acting P. J., RICHLI, J.