Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA043519, Bernie C. LaForteza, Judge.
Page & Page and Edgar Eugene Page for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
A jury convicted defendant and appellant Oscar Flores in count 1 of the willful, deliberate, and premeditated attempted murder of Francisco Javier Hernandez in violation of Penal Code sections 664 and 187, subdivision (a). The jury further found in count 1 that defendant personally discharged a firearm within the meaning of section 12022.53, subdivisions (b)-(d), and the offense was committed for the benefit of a criminal street gang for purposes of section 186.22, subdivision (b)(1)(C). In count 2, defendant was found guilty of assault with a firearm on Hernandez in violation of section 245, subdivision (a)(2). The jury also found true in count 2 that the offense fell within section 186.22, subdivision (b)(1)(C), defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), and defendant personally used a firearm within the meaning of sections 12022.5, 1192.7, subdivision (c), and 667.5, subdivision (c).
All statutory references are to the Penal Code, unless otherwise indicated.
Defendant’s motions for new trial and for disclosure of juror identifying information were denied. Defendant was sentenced to life in prison on count one, with a 25-year-to-life enhancement for use of a firearm under section 12022.53, subdivision (d). The sentence on count 2 was stayed pursuant to section 654.
In this timely appeal from the judgment, defendant raises the following issues: (1) the standard jury instruction on alibi in Judicial Council of California Criminal Jury Instructions (2008-2009) CALCRIM No. 3400 is an inaccurate statement of law and constitutionally defective; (2) it was a violation of state and federal due process to fail to advise the jury that the definition of “presence” in the alibi instruction requires the prosecution to fix the time of the offense; (3) the evidence is insufficient to support the verdicts because the prosecution failed to establish the time of the offense; (4) the trial court should have cured the error of insufficiency of the evidence by granting motions under sections 1118.1 (judgment of acquittal), 1385 (dismissal in furtherance of justice), and 1181 (new trial); (5) the trial court erred in denying the motion for new trial because the photographic identification procedure used at trial violated due process, the testimony of an accomplice was insufficient for conviction, defendant’s innocence was established by his alibi, the eyewitness identification was not credible and did not support the verdict, substantial evidence did not support the gang findings, and jury misconduct was demonstrated by jurors expressing sorrow at the time of the verdict and the absence of a unanimous verdict; (6) the trial court erred in denying access to juror identifying information and the case should be remanded to the trial court for that purpose; (7) the evidence was insufficient to support the gang finding because defendant shot in defense of others; and (8) the cumulative effect of errors, including a juror seeing defendant being handcuffed, requires reversal.
We affirm.
FACTS
Hernandez went to the El Novillo Market in Littlerock with his girlfriend, Wendy Gaspar, and their two-year-old daughter to get medicine for the daughter on May 10, 2008. They were driven to the store by Hernandez’s brother, Miguel. When it was time to leave the store, Hernandez went to get Miguel, who was at a water dispenser talking to two Latino males, one of whom Hernandez knew as Edgar. At that time, a male exited a car, armed with a handgun, and shot Hernandez, the bullet entering and exiting his arm, then entering his back. Hernandez ran to the side of the market, chased by the shooter, and then back through the market to his brother’s car. Four to five shots were fired at him. Hernandez could not identify the shooter, but noticed that he was tall, thin, had big ears, a shaved head, and a tattoo on his right arm.
The bullet was removed from Hernandez’s back at the hospital, several days after the shooting.
Gaspar was in the car with her daughter at the time of the shooting. At first, she ducked down, but then looked up and witnessed defendant commit the shooting. She saw Hernandez run around the corner of the store with defendant giving chase. Defendant ran back to the front of the store and pointed the gun into the car from a distance of 17 feet. Defendant then got in another car and left with two Latino males. Hernandez was bleeding from the right arm and was taken to the hospital. Gaspar identified defendant’s photograph from a six-pack photo lineup on July 22, 2008. She did not recall the shooter having a goatee, but he is the only one with a goatee in the photos. Gaspar identified defendant in court as the shooter. Her identification was based on seeing defendant shoot Hernandez, and she knows defendant is the shooter.
The person recognized at the shooting by Hernandez was Edgar Diaz Fernandez (Diaz). Diaz’s white sports utility vehicle was observed leaving the shooting. Diaz was arrested on drug charges, after which he was interviewed by Detective Richard O’Neal. Diaz was not aware that the interview was being recorded. By the time of trial, Diaz had pled guilty to being an accessory in violation of section 32, but he claimed to be unable to recall his interview with the detective because he was under the influence of drugs at the time. Diaz, at some point, lived in a house with defendant’s mother at 5029 Cliffrose in Palmdale.
Detective O’Neal questioned Diaz about the shooting at the El Novillo Market on May 10, 2008. Diaz was read his Miranda rights, which he waived in writing. On May 10, Diaz was with defendant and Steven Cuatro, driving his white sports utility vehicle, when he inadvertently cut off another car containing Hernandez, whom he knew from high school. The people in the other car were “mad dogging” him. Words were exchanged between the two groups at the market. Diaz saw Hernandez reach toward his waistband, at which point defendant fired five shots at him. Diaz did not want to say the names of his companions for Detective O’Neal, so he wrote the names Steven Cuatro and “Oscar F.” on a notepad, indicating defendant was the shooter.
Miranda v. Arizona (1966) 384 U.S. 436.
Anthony Delia, a gang unit detective for the Los Angeles County Sheriff’s Department, saw Diaz’s white sports utility vehicle at 5029 Cliffrose on May 23, 2008. The vehicle matched the description of the vehicle at the Hernandez shooting. Detective Delia had past contacts with defendant, who was a member of the Down As Fuck (DAF) gang. Field identification cards reflecting prior contacts with defendant in 2007 showed that defendant admitted membership in DAF with the moniker Dumbo.
Detective Joseph Fender of the sheriff’s department had several contacts with defendant before the shooting, which had been memorialized on field identification cards. Defendant admitted being a DAF member. He changed his moniker from Dumbo to Ears. The detective had multiple contacts with DAF members. DAF was a gang as defined in the Penal Code. Detective Fender has made arrests of DAF members for possession of weapons, assault with a deadly weapon (including firearms), and possession of narcotics.
Jorge Acevedo was near the El Novillo Market on May 10. The market is nearby his residence. As he waited for a bus, he heard the sound of five gunshots and saw the shooter jump into the street. Someone came out of the market, bleeding from his arm in the area of the bicep. Acevedo saw cars leave quickly. He told the police he heard the victim yell, “I know that guy. We’ve got to get out of here.”
Detective O’Neal was the investigating officer of the Hernandez shooting. Aware that Acevedo said that someone at the shooting said he knew “that guy, ” he spoke to Hernandez, who told him he knew Diaz. Diaz did not appear to be under the influence of drugs at the time of his interview on July 10, 2008. The first time Detective O’Neal had a suspect in the shooting was when Diaz wrote down the names of Cuatro and defendant, and indicated the latter was the shooter.
Based on Diaz’s statements, Detective O’Neal prepared a six-pack of males with similar features, which he showed to Gaspar. She identified defendant as the shooter.
Hernandez mentioned the shooter’s tattoos. Defendant has an S tattooed on each shoulder, for Southside, a gang affiliated with the Mexican Mafia in Southern California. “Antelope” is on defendant’s right forearm and “East” on his right hand. His left forearm has a “Valle 661” tattoo, and his left hand has a “Side” tattoo. The tattoos stand for Antelope Valley, the area code 661, and the east side of Palmdale dominated by DAF. DAF is tattooed on the back of defendant’s left arm. The back of his right hand had “MKS” for the maniacs clique of DAF. These tattoos reflect defendant’s strong gang affiliation.
Detective O’Neal interviewed defendant, who waived his Miranda rights. Defendant matched the description given by Gaspar and Hernandez. Defendant admitted being an active DAF gang member with the moniker Dumbo or Ears. Defendant said he was in juvenile hall at the time of the shooting and denied involvement. Defendant never said he was at a barbeque at the time of the shooting. Later investigation revealed defendant was not in custody at the time of the shooting.
Detective O’Neal’s investigation revealed no evidence that Hernandez is a gang member. Hernandez had no tattoos and was not the subject of field identification cards.
Detective O’Neal testified as a gang expert. He explained how graffiti marks a gang’s territory and strikes fear in others. After the shooting, DAF graffiti appeared on a light pole near the market, which is common for gangs after a crime in the vicinity, as it claims their territory and intimidates the community and other gang members. The graffiti read “DAF X3”; 13 stands for the Mexican Mafia. The detective identified multiple examples of DAF graffiti in Palmdale. Graffiti makes a statement that there is a violent gang in the community for the purpose of intimidating the community and keeping other gangs out of gang territory. If another gang member comes to their turf, the graffiti gives warning that they will be killed. Gang signs indicate where the gang member is from and serve as an insult to other gangs.
According to Detective O’Neal, DAF is a criminal street gang with over 100 members. Some of its primary activities are possession of narcotics for sale, possession of firearms, and shootings. Detective O’Neal identified multiple photographs of defendant throwing gang signs and participating in gang activities. Defendant is an admitted member of DAF. The detective testified to the required statutory predicate offenses committed by DAF members. Diaz is also a DAF member.
More specifically, defendant was an active DAF member on the day of the charged shooting. Based on a hypothetical question closely tracking the facts introduced at trial, Detective O’Neal opined the shooting was for the benefit of DAF. He reached this conclusion because there were several gang members in gang territory, there was a confrontation, and one gang member had a loaded weapon for protection. The shooting would intimidate others and improve defendant’s status in the gang. The post-shooting tagging indicated that this is what happens when one “messes” with the gang. The shooting benefits the gang by letting others know DAF will shoot without question, which makes the gang stronger. Witnesses are intimidated by such gang shootings, furthering the interests of the gang and its ability to commit crime without repercussions. The shooting was a gang crime, rather than a run of the mill criminal offense, because three gang members in a car committed a shooting, after which DAF graffiti was displayed to promote the gang’s status and strength in the community.
Zsanene Cangiarella was the lone defense witness. She knows defendant through his father. She was at a Mother’s Day barbeque with 20 to 30 people in Huntington Beach on the afternoon of May 10, 2008. The date is also her nephew’s birthday. Defendant was speaking to Cangiarella’s daughter at the barbeque when she arrived between 1:00 and 2:00 p.m. Cangiarella stayed until 5:00 p.m., and defendant was there the entire time. It was established, however, that Mother’s Day was May 11, not May 10, 2008. Defendant’s mother was not at the barbeque.
DISCUSSION
Alibi Instructions and Sufficiency of the Evidence of the Time of the Offense
Defendant presented an alibi defense through one witness, Cangiarella, who testified defendant was at a barbeque she attended in Huntington Beach on the date of the shooting between 1:00 and 5:00 p.m. At defendant’s request, the jury was instructed on alibi pursuant to CALCRIM No. 3400. The jury asked questions during deliberations regarding the time of the shooting and when the victim was treated at the hospital. The trial court accurately advised the jury that there was no evidence presented on those issues.
Against this backdrop, defendant raises four issues pertaining to his alibi defense. First, he argues CALCRIM No. 3400 misstates the law and is constitutionally defective. Second, defendant contends his federal and state due process rights were violated when the trial court failed to provide additional instruction requiring that the evidence must fix the time of the commission of the offense. Third, defendant argues that the evidence is insufficient because of the absence of evidence as to the time of the shooting. Fourth, defendant argues that due to the absence of proof of the exact time of the offenses, the trial court should have ordered the case dismissed pursuant to sections 1118.1, 1385, and 1181, subdivision (6.)
The jury was instructed pursuant to CALCRIM No. 3400 as follows: “The People must prove that the defendant committed Attempted Murder or Assault with a firearm. The defendant contends he did not commit these crimes and that he was somewhere else when the crimes were committed. The People must prove that the defendant was present and committed the crimes with which he is charged. The defendant does not need to prove he was elsewhere at the time of the crime. [¶] If you have a reasonable doubt about whether the defendant was present when the crime was committed, you must find him not guilty.”
Defendant’s challenge to the trial court’s alibi instruction fails. The trial court had no sua sponte duty to instruct on alibi. (People v. Alcala (1992) 4 Cal.4th 742, 803-804; People v. Freeman (1978) 22 Cal.3d 434, 437-439.) In response to an inquiry by the trial court, defense counsel requested that CALCRIM No. 3400 be given. Having requested the instruction, the doctrine of invited error bars defendant’s challenge. (People v. Harris (2008) 43 Cal.4th 1269, 1293; People v. Weaver (2001) 26 Cal.4th 876, 970.) If defendant believed an instruction was incomplete, it was his duty to request clarifying language in the trial court. (People v. Alvarez (1996) 14 Cal.4th 155, 222.)
Obligation to Amplify on the Instruction
Defendant’s argument that due process requires the trial court to instruct the jury that the prosecution must prove the exact time of the charged offense in relation to the alibi evidence is without merit. Defendant cites no case holding that the exact time of an offense is a material element of the prosecution’s burden, and with good reason, as it is not the law. The exact time and date of an offense is not material, so long as the offense is within the limitations period. (People v. Obremski (1989) 207 Cal.App.3d 1346, 1354; see § 955 [“The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense.”].)
Defendant’s reliance on People v. Barney (1983) 143 Cal.App.3d 490 (Barney) is entirely misplaced. Barney was a child molestation case in which the jury was instructed that one of the offenses was committed “on or about” February 8, 1981; the defendant presented an alibi defense. “As is clear, the Barney court did not hold that the information must plead the exact date of the offense. Instead, it merely held that when the prosecution’s proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity), it is improper to give the jury an instruction using the ‘on or about’ language. ([Id.] at p. 497.) This holding is unremarkable, being consistent with past authority. [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 358-359.)
The problem identified by the court in Barney is that the court instructed pursuant to CALJIC No. 4.71, in a case involving an alibi, as follows: “When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, if you find that the crime was committed, it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date.” The CALCRIM instruction covering the same subject matter as CALJIC No. 4.71—CALCRIM No. 207—was properly not given to the jury in defendant’s trial.
CALCRIM No. 207 states, “It is alleged that the crime occurred on [or about] ______ <insert alleged date>. The People are not required to prove that the crime took place exactly on that day, but only that is happened reasonably close to that day.”
There was no error in instructing the jury in the language of CALCRM No. 3400 on alibi, and there was no need to amplify on this correct statement of law.
Sufficiency of the Evidence
Defendant’s next argument in this area—that the evidence is insufficient to prove guilt on all counts because the prosecution did not fix the time of the offense—does not require extended discussion, as there is nothing in the law requiring the prosecution to establish the time of day an offense was committed.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
The jury heard from multiple witnesses that the shooting occurred on May 10, 2008. It was for the jury to decide whether the prosecution proved beyond a reasonable doubt that defendant was the shooter, as opposed to being at a party in Huntington Beach at the time. In aid of that determination, the jury was instructed on the presumption of innocence and the prosecution’s burden of proving him guilty beyond a reasonable doubt, the factors going into the reliability of eyewitness identification and the People’s burden to prove identification beyond a reasonable doubt, and if Diaz were an accomplice his testimony required supporting evidence. (CALCRIM Nos. 220, 315, and 334.) Taken as a whole, the jury instructions properly focused the jury’s attention on the issue of identification. The record contains abundant evidence defendant was the person who shot Hernandez. We do not reweigh the evidence on appeal in reviewing the jury’s finding on identification.
Failure of the Trial Court to Enter Dismissal
Defendant’s argument that the trial court should have dismissed the case after the close of the prosecution evidence (§ 1118.1), in furtherance of justice (§ 1385), and at the motion for new trial (§ 1181) fails in light of our discussion that there was no obligation to fix the moment of the charged offenses and that there was substantial evidence of defendant’s involvement.
Denial of the Motion for New Trial
Defendant argues the trial court should have granted his motion for new trial on the basis that the photographic lineup shown to Gaspar was unduly suggestive; the accomplice testimony of Diaz lacked corroboration if Gaspar’s identification testimony is excluded; defendant’s alibi established he was in Huntington Beach at the time of the shooting; Gaspar’s eyewitness identification testimony was not credible; there was insufficient evidence to support the gang enhancement; jurors expressed profound sorrow at the time of the verdict and committed misconduct; and the trial court should have granted the motion to release juror identifying information. None of these contentions warrants relief.
Suggestive Photographic Lineup
Defendant made no timely objection to Gaspar’s identification at trial on the ground the photographic lineup was unduly suggestive. The issue is forfeited. (People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Medina (1995) 11 Cal.4th 694, 753.)
The contention also fails on the merits. “In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 989.) The burden is on defendant to demonstrate the identification process violated due process. (Ibid.)
We have examined the photographic lineup (People’s exhibit No. 18) and find it to be manifestly fair. The lineup includes six Hispanic males with closely cropped hair, all of the same approximate age and skin tone, and each with the same facial expression. While defendant is the only one with a goatee, his photograph in no way stands out from the other five. (People v. Gonzalez (2006) 38 Cal.4th 932, 943 (Gonzalez); People v. Carpenter (1997) 15 Cal.4th 312, 367, superceded on other grounds in Verdin v. superior Court (2008) 43 Cal.4th 1096, 1106.) A unique physical characteristic in a defendant, in and of itself, does not establish a violation of due process. (See Gonzalez, supra, at p. 943 [photographic lineup not unduly suggestive where the defendant was only one wearing gang attire and with a droopy eye]; People v. West (1984) 154 Cal.App.3d 100, 105 [fact that the defendant’s face was turned in a different direction than others depicted and his photograph had a yellow tint deemed not unduly suggestive].)
Corroboration of Diaz’s Testimony
Defendant next argues that there is no corroboration of Diaz’s testimony, as required of an accomplice under section 1111, if Gaspar’s identification of defendant is excluded. The contention lacks merit, because as set forth above, there is no basis to disregard Gaspar’s identification. Assuming Diaz was an accomplice, the record contains the necessary slight evidence of corroboration. (People v. Sanders (1995) 11 Cal.4th 475, 534-535.) Without belaboring the point, corroboration is found in defendant’s false statement to Detective O’Neal that he was incarcerated at the time of the shooting, identification of Diaz’s vehicle from the scene, defendant’s gang motive, his tattoos consistent with the shooter as described by Javier, and Gaspar’s and Acevedo’s descriptions of how the crime took place.
Alibi Evidence Requiring Reversal
Defendant argues his alibi witness established that he was in Huntington Beach at the time of the shooting, which undermines the prosecution case and creates a reasonable doubt as to guilt. The contention is totally devoid of merit. “We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Green (1997) 51 Cal.App.4th 1433, 1437.)” (People v. Pre (2004) 117 Cal.App.4th 413, 421.) To the contrary, we are required to view the evidence in the light most favorable to the judgment, and draw all inferences in favor of respondent. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) The testimony of one witness, unless inherently impossible, is sufficient to support a conviction. (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.)
Here, the jury resolved the issue of identification of the shooter by rejecting the uncorroborated testimony of defendant’s sole alibi witness, in favor of prosecution witnesses. There is no basis to overturn the jury’s determination on appeal.
The Credibility of the Eyewitness
Defendant argues that Gaspar, the eyewitness who identified defendant, had questionable credibility, and, as a result, the evidence is insufficient to support the judgment. Our review of the record reveals nothing to undercut Gaspar’s credibility as a matter of law. The issue of credibility was for the jury, and defendant fails to demonstrate an absence of substantial evidence to support the jury’s resolution of this disputed factual issue. We note, as well, that Gaspar’s identification was corroborated by Diaz, who identified defendant as the shooter of Hernandez.
The Gang Enhancement
Defendant argues there is insufficient evidence to support the gang enhancement. He contends the only evidence supporting the gang enhancement was the expert testimony of Detective O’Neal, which is insufficient as a matter of law. In particular, defendant contends there is insufficient evidence the shooting was committed for the benefit of a criminal street gang.
A crime is subject to enhancement under section 186.22, subdivision (b)(1) only if it is gang related. (People v. Gardeley (1996) 14 Cal.4th 605, 622.) “Not every crime committed by gang members is related to a gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60.) As explained in Albillar, however, a crime committed with other gang members can result in improved status and respect in the gang, increase the likelihood of success in completing the crime, and allow the gang to rely on intimidation. (Id. at pp. 60-62.)
Detective O’Neal’s testimony, combined with other facts in the case, constitutes substantial evidence the shooting was committed for the benefit of DAF. Diaz, Cuatro, and defendant were all active DAF members. The shooting took place in an area claimed by DAF and in which DAF members frequently committed criminal acts. Once the exchange between Miguel and the DAF members began, and Hernandez went to get his brother, defendant opened fire with a handgun. As explained by Detective O’Neal, gangs commit these types of offenses to control their turf, dissuade anyone who might show the gang disrespect, instill fear in the community, and intimidate potential witnesses. The level of force used to resolve what may have been no more than a minor squabble demonstrates the extent to which a gang will go to protect its members and its turf. Any question about the gang motivation in this case is dispelled by the DAF graffiti placed near the scene of the shooting shortly thereafter, as a means of expressing the strength of the gang and a warning not to cross the gang in any way.
Defendant’s reliance on People v. Ochoa (2009) 179 Cal.App.4th 650 is misplaced. “In People v. Ochoa (2009) 179 Cal.App.4th 650, the defendant ‘did not call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while committing the instant offenses. There was no evidence of bragging or graffiti to take credit for the crimes. There was no testimony that the victim saw any of [the] defendant’s tattoos. There was no evidence the crimes were committed in [the defendant’s gang’s] territory or the territory of any of its rivals. There was no evidence that the victim of the crimes was a gang member.... [The d]efendant was not accompanied by a fellow gang member.’ (Id. at p. 662, fn. omitted.)” (People v. Miranda (2011) 192 Cal.App.4th 398, 413.) Miranda distinguished Ochoa on the basis that “there was evidence that [the] defendant was accompanied by fellow gang members, the crime was committed in the gang’s territory, and the gang’s name was called out.” (Ibid.) The facts in defendant’s case are consistent with Miranda to the extent that defendant was in the company of other gang members and the crime was committed in the gang’s territory. When the post-offense graffiti is added to these considerations, there is substantial evidence to support the jury’s finding that the offenses were for the benefit of DAF.
Juror Sorrow and Jury Misconduct Requiring Release of Juror Information
Based solely on a claim that two jurors were observed crying at the time of the verdict, defendant claims there was not a unanimous verdict and he was entitled to obtain release of juror identifying information (Code Civ. Proc., § 237, subd. (b)) for purposes of investigating jury misconduct. To the extent defendant argues there was less than a unanimous verdict, he is wrong. The jurors were individually polled and each affirmatively stated that the verdicts as read were correct. (§§ 1163, 1164.)
The trial court did not abuse its discretion in denying defendant’s request for relief of juror identifying information. (See People v. Santos (2007) 147 Cal.App.4th 965, 978.) Code of Civil Procedure section 237 provides that any petition for access to identifying juror information must be supported by a declaration that includes facts sufficient to establish good cause for the release of juror identifying information. There is a strong policy in favor of protecting the privacy of jurors. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1092-1094.)
The oral request of defense counsel for release of juror identifying information, coupled with a later-filed declaration, establish no more than counsel was “troubled” because two jurors purportedly expressed sorrow by crying at the time of the verdict, and she believed this “unusual conduct” warranted an investigation into possible juror misconduct. Defense counsel’s subjective concerns do not constitute good cause for disclosure of juror identifying information. We agree with the trial court that this showing was insufficient to warrant an interference with the juror’s right to privacy, and that if counsel’s description were accurate, the jurors’ conduct is far too ambiguous to reflect misconduct.
Shackling of Defendant
Defense counsel called to the trial court’s attention that there had been a juror in the courtroom when the bailiff began to handcuff defendant at the start of a recess in proceedings. (See People v. Cox (1991) 53 Cal.3d 618, 651 [a defendant may not be shackled in jury’s presence absent “manifest need”]; People v. Duran (1976) 16 Cal.3d 282, 290-291.) Here, the trial court created a clear and unambiguous record that the bailiff had taken out handcuffs at the start of a recess in trial, but the trial court saw there was still a juror in the process of exiting the courtroom and had the bailiff stop. Because of the way the juror was turned, the court could observe the juror did not see anything in regards to the handcuffs. Defense counsel did not dispute the court’s description of what transpired. Based on the trial court’s thorough record, we are satisfied there was no shackling of defendant during trial proceedings, and no juror saw defendant in handcuffs during a recess. Given this record, there was no error. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584.)
Cumulative Errors
Defendant argues the cumulative trial court errors require remand of the case for a new trial. We have found no trial court errors and reject the claim of cumulative error. (People v. Bolin (1998) 18 Cal.4th 297, 345.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.