Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC476153
Bamattre-Manoukian, J.
Defendant Javier Frank Garcia was convicted after jury trial of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The jury also found true an allegation that the offense was committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)(B)). Defendant admitted that he had a prior serious felony conviction that also qualified as a strike. (§§ 667, subd. (a), 1170.12.) The trial court granted defendant’s Romero motion, struck the strike and the additional punishment for the gang enhancement, and sentenced defendant to nine years in state prison. The sentence consists of the upper term of four years for the assault plus a consecutive term of five years for the prior serious felony.
Further unspecified statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant contends on appeal that (1) there is insufficient evidence to support his conviction for assault with a deadly weapon; (2) the court prejudicially erred by failing to instruct the jury sua sponte that proof of defendant’s gang membership and knowledge that gang fights commonly involve the use of weapons is insufficient to prove that he knew that one of his companions intended to commit an assault with a deadly weapon; (3) the prosecutor committed prejudicial misconduct; (4) his trial counsel rendered ineffective assistance by failing to object to the prosecutorial misconduct; (5) the court abused its discretion by admitting into evidence a CD, its cover, and the transcript of some of its lyrics; (6) the court abused its discretion by admitting certain gang expert testimony; (7) the court prejudicially erred when instructing the jury on the natural and probable consequences doctrine; (8) there is insufficient evidence to support the criminal street gang enhancement; (9) the cumulative effect of the above errors requires reversal of the conviction; and (10) the court violated his Sixth Amendment right to a jury trial by imposing the upper term. As we find no error requiring reversal, we will affirm the judgment.
BACKGROUND
Defendant was charged by information with assault with a deadly weapon for the benefit of, or in association with, a criminal street gang. (§§ 245, subd. (a)(1), 186.22, subd. (b)(1)(B).) The information further alleged that defendant had a prior serious felony conviction that also qualified as a strike. (§§ 667, subd. (a), 1170.12.)
The information included the same allegation as to David Tapia, who is not a party to this appeal.
The prosecutor moved in limine to admit a rap CD, its cover, and transcripts of some of its lyrics. Defendant opposed the motion, but the court granted the motion following an Evidence Code section 402 hearing. The court also granted defendant’s request to bifurcate trial on the alleged priors.
The Prosecution’s Case
The Assault
Samantha Leza, Betzy Natareno, and George Natareno were working inside the Mayberry Street entrance of the San Jose flea market on December 19, 2004, when they saw a fistfight involving six young Hispanic men. None of the witnesses had seen any of the men who were fighting before that day.
In order to avoid confusion because two of the witnesses have the same last name, and not out of any disrespect, we will hereafter refer to Samantha, Betzy and George by their first names.
Three of the six men appeared to the three witnesses to be Norteno gang members: one was wearing a red and white shirt and red shoes and had a tattoo on his ear; one was wearing a black shirt; and one was wearing a white sweatshirt. The other three men were wearing blue and appeared to the witnesses to be Sureno gang members. Before the fight, one of the Surenos said to a Norteno, “ ‘Do you bang?’ ” One of the Nortenos responded, “ ‘Yeah, we bang, puro Norte.’ ” The six men then fought in three groups, one-on-one. At trial, Samantha testified that she did not remember who threw the first punch, and Betzy testified that she did not see it. George testified that the Sureno wearing a blue sweatshirt threw the first punch and hit the Norteno wearing the red and white shirt. George also testified that he himself is a Sureno.
The man wearing a white sweatshirt fell to the ground, and one of the men wearing blue hit him in the face. The fight lasted less than a minute. After the fight, the man in the red and white shirt approached the man in the white sweatshirt and asked him why he let the guy hit him that way. The man in the white sweatshirt responded that he was not able to get the guy off of him. The man in the white sweatshirt, whose face was bleeding, then went into the flea market with the man in the red and white shirt. The three men in blue went to the parking lot. One of those men, Frank Gonzalez, was treated by responding officers and ambulance personnel in the parking lot for a stab wound, but neither Samantha, nor Betzy, nor George saw a stabbing or any weapons during the fistfight.
San Jose Police Officer Greg Connelly, who was working in uniform as security for the flea market, received a report of a fight at the Mayberry Street entrance shortly before noon on December 19, 2004. When he responded to that location, Samantha told him that she had seen six men fighting, three Nortenos and three Surenos. She said that the Sureno being treated for a stab wound was the one who started the fight with the words, “ ‘Do you bang.’ ” She said that the Nortenos started to walk away, but one of them said to another “ ‘You’re going to let him hit you like that?’ ” Then all of the men got into a fistfight. She said that she did not see any weapons and she did not see who did the stabbing.
Officer Steve Wilson responded to the flea market on December 19, 2004, following the report of a fight. Upon his arrival he reported to the officers treating Gonzalez in the parking lot, took pictures of Gonzalez’s wounds, and watched Gonzalez being taken away by ambulance. Officer William Enos was directed to follow the ambulance carrying Gonzalez to the hospital. At the hospital, the officer took possession of the clothing Gonzalez had been wearing: a blue sweatshirt, a gray tank top, a white jersey with the number 13 on it, and a blue baseball cap. The cap has “Sur” on the top of the bill and “13” and “BSM” on the underside.
Gonzalez was treated at the hospital for a stab wound in his right upper abdomen that was about one-half inch long and about one inch deep.
Officer James Hoag responded to the report of a stabbing in the area of the flea market on December 19, 2004. Officer Willis, who had David Tapia in custody, flagged Officer Hoag down west of the flea market. Officer Hoag took custody of Tapia, who had a bloody nose, a fat lip, and swelling around his left eye. Tapia was carrying a white sweatshirt that had blood on it, and was wearing a black knit stocking cap that had blood on it, a white T-shirt, blue jeans, and white shoes.
Officer Richard Granado responded to a report of a fight at the flea market shortly before noon on December 19, 2004. The report included a general description of the young Hispanic men suspected of being involved in the fight. As the officer approached the flea market from the west, he saw two Hispanic men walking away from the market. One, defendant, was wearing a white T-shirt, blue jeans, and red shoes. The other was wearing a long-sleeved gray shirt and blue jeans. The officer slowed his vehicle and watched the men, who looked around and at the officer. As the officer drove past the men and made a U-turn, they began to run. The officer saw defendant make a throwing motion with his right arm toward a metal works yard, but the officer did not see anything leave defendant’s hand. Defendant continued running. The officer then saw defendant stop and throw what appeared to be a red and white shirt over the fence of the metal works yard. Defendant continued to run and the officer got out of his vehicle and ran after him. The officer was able to stop defendant but the other man with defendant got away. The officer turned defendant over to Officer Chan and tried to locate the other man, but he was not able to find him.
Officer Michael Chan took custody of defendant from Officer Granado and read him his Miranda rights. Defendant stated that he understood his rights and that he was willing to speak to the officer. Defendant told the officer that he went to the flea market with two friends, Huero and Johnny. He was approached by three men who said, “ ‘You fucking bang.’ ” Then he and his friends were “rushed” by the three men. He “pushed a big dude” while his two friends fought the other two men.
Miranda v. Arizona (1966) 384 U.S. 436.
Samantha, Betzy, and George were separately taken by officers in police cars to a parking lot where they identified defendant as the person who had been the fighter wearing the red and white shirt and red shoes. Samantha was not sure whether it was defendant or the Norteno in the black shirt who was fighting the Sureno who was stabbed. Samantha also identified Tapia, who was being held at a separate location, as one of the men involved in the fight. Betzy identified Tapia as the fighter who was down on the ground. Officers searched the metal works yard and found the red and white shirt that defendant threw over the fence, but did not find a stabbing weapon.
Officer Chan took defendant to the pre-processing center. After the officer learned that somebody had been stabbed, he asked defendant whether he knew who did the stabbing. Defendant said that he did not know that anybody had been stabbed, that it was just a mutual fight. The officer also asked defendant why he threw his shirt over the fence. Defendant responded that he did so because he did not want the police to think that he was a gang member.
Defendant has “XIV” and “WSM” tattooed on his right forearm. He also has “WSM” tattooed on his left ear. He identified a picture of David Tapia as the person he knows as Huero. Jesse Chavaria was later identified as the third man involved in the fight with defendant and Tapia.
Gang Evidence
San Jose Police Detective Nicholas Speaks testified as an expert in the operation, membership, and primary activities of Hispanic criminal street gangs as follows.
There are two major rival Hispanic criminal street gangs in San Jose: Surenos and Nortenos. Norteno gang members identify with the color red, the letter N, and the number 14. N is the 14th letter of the alphabet, and it stands for the Nuestra Familia prison gang, with which Norteno gangs are associated. Sureno gang members identify with the color blue, the letter M, and the number 13. M is the 13th letter of the alphabet, and it stands for the Mexican Mafia prison gang, with which Sureno gangs are associated.
Both Sureno and Norteno gang members frequent the San Jose flea market. Violent altercations often occur when members of rival gangs cross paths there.
A gang member can challenge a member of a rival gang to a fight in a public place by asking, “Do you bang?” The challenged gang member has to respond to the challenge or he will be viewed as weak by other members of his gang. When other members of the challenged gang member’s gang are with the challenged gang member, they are expected to take part in the fight. In order to protect themselves from, or to inflict injury on, their rivals, it is common for gang members to carry and conceal on their persons weapons such as stabbing instruments or guns when in public.
West Side Mob (WSM) is a San Jose Norteno gang that had approximately 200 members in 2004. Members of the gang wear various types of red clothing and identify with the number 14 and the letter N. They also may have tattoos of “WSM,” “Mob,” or “West Side.” In addition, to show their allegiance to the gang, members will say, “Puro norte” or “West Side” during a confrontation with rival gang members. In the detective’s opinion, Tapia and defendant were WSM gang members on December 19, 2004. His opinion is based on prior field interview contacts with Tapia and defendant, conversations with other officers, defendant’s tattoos on his arm and ear, and Tapia’s tattoo of “West Side” on the back of his head. Barrio Surenos Malditos (BSM) is a rival Sureno gang of WSM. The clothing collected at the hospital from Gonzalez is consistent with clothing worn by Sureno gang members.
In Detective Speaks’s opinion, the commission of the crimes listed in section 186.22 is a primary purpose of WSM. His opinion is based on the following. David Holmes was charged by information with a felony violation of section 245, subdivision (a)(1), assault with a deadly weapon and by means of force likely to produce great bodily injury, on September 18, 2002. The information further alleged as an enhancement under section 186.22, subdivision (b)(1), that the offense was committed at the direction and benefit of, and in association with, a criminal street gang. Holmes pleaded no contest to the substantive charge and admitted the gang enhancement on July 29, 2003. Holmes used a billy club or bat during his assault. In Detective Speaks’s opinion, Holmes was a member of WSM at the time of his offense.
Joseph Sullivan was charged by felony complaint with a felony violation of section 245, subdivision (a)(1), assault with a deadly weapon, a knife, and by means of force likely to produce great bodily injury, on July 12, 2001. The complaint further alleged that Sullivan personally committed the offense at the benefit of, direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1). He pleaded no contest to the charge and admitted the gang enhancement on October 18, 2001. In Detective Speaks’s opinion, Sullivan was a member of WSM at the time of his offense. Sullivan shouted “ ‘West Side Mob’ ” while stabbing the victim during an assault by other WSM gang members on the victim.
Chad Cleveland was charged by information with murder on June 11, 2001, and with a gang enhancement under section 186.22, subdivision (b)(1). A jury found him guilty as charged and found the gang allegation to be true. Jaime Valenzuela was charged by information with murder on June 17, 2001, and with a gang enhancement under section 186.22, subdivision (b)(1). A jury found him guilty as charged and found the gang enhancement to be true. Cleveland and Valenzuela are known WSM gang members.
In Detective Speaks’s opinion, the assault on December 19, 2004, involving defendant, was also committed for the benefit of, at the direction of, or in association with WSM. Three members of WSM, defendant, Tapia, and Chavaria, were challenged by three Sureno gang members; they said “ ‘puro norte’ ” and accepted the challenge; and there was no evidence suggesting any other motive for the assault. The assault benefited WSM because it benefited their reputation as being violent and strong, which helps them grow in number and strength.
The CD
In early 2005, another officer gave Detective Speaks a CD that had been obtained during a search. Defendant is one of the people depicted on the cover of the CD. The name “Gucci” is written in red over the T-shirt defendant is wearing and on another part of the cover, “Frank Gucci” is similarly written in red. Also on the cover are street signs that say “Alma” and “Sanborn,” which are streets within WSM territory; the huelga bird, which is a symbol for the Nuestra Familia prison gang; and the names of other known WSM members. Two of the named gang members, Cleveland and Valenzuela, were convicted of 2001 gang-related homicides. The CD cover states that the songs were written by Frank Gucci and gives a 2004 date.
Portions of the CD were played for the jury, and it (exhibit No. 30A) and the transcript of the portions played (exhibit No. 30B) were admitted into evidence. In track one, titled “No Warning Shots,” are the words “among men if you kick ass everybody knows not to fuck with you” – which Detective Speaks testified is a philosophy consistent with Norteno street gangs; “in the war zone of the Alma” – which is the heart of WSM territory – and “Pigs are scraps” – which is a derogatory reference to Surenos.
In track two, titled “Wicked West Intentions,” are the words “Scraps better watch their backs” – which Detective Speaks testified refers to Surenos; “Rolling with the gente. Cuete. Always fully loaded in the zone” – which refers in gang slang to carrying a gun while in gang territory; “Rollin’ on the streets with the young homie creeps” – which refers to being out with fellow gang members; “Send a little message when you meet my friends” – which refers to taking violent action; and “Everybody know in the city this is mob” – which refers to the reputation of WSM.
In track five, titled “Down for Da Hood,” are the words “Down for the hood. Like ready for whatever” – which Detective Speaks testified refers to doing whatever it takes to defend gang territory; “Bring pain to the phonies” – which refers to enemies of the gang; “My life in the hood with my knife in the hood” – which refers to defending the territory with a weapon no matter what; “Fake ass phonies go to caskets with black clothes” – which refers to Surenos; “they rat on our rivals. If they talk the talk, walk the walk, no talking to the 5-0s” – which refers to informing on the gang to the police; and “West Side” – which refers to WSM.
In track seven, titled “Been Around the Block,” are the words “Misunderstood . . . on our rivals. They never do shit but they’re talking like 5-0” – which Detective Speaks testified refers to Surenos talking to the police; “A round from my Glock disrespect my gente” – which refers to a handgun and his people; “Gucci rolled through their hood and showed them a mob hit” – which refers to “tak[ing] someone out”; “Crazy with the mob” – referring to WSM; and “These motherfuckers pray that Westside don’t play” – which refers to people not wanting to have any problem with WSM.
In track eight, titled “Insane Insane,” are the words “grab your cuetes and load them, filet those that poke them” – which Detective Speaks testified refers to loading guns and cutting up people; “City where the scrapas lost. North is home” – which refers to San Jose being a Norteno area; and “We don’t condone socializing with the weak” – which refers to Surenos.
In track 10, titled “Lil Mo in Life,” are the words “we murder scraps” – which Detective Speaks testified derogatorily refers to Surenos; “Northern Cal is home” – which refers to northern California being Nortenos’ home; “Mob till I’m home” – which refers to “gangbanging”; “Scrapas got to go” – which refers to Surenos; and “Hating Gucci is bad for you” – which refers to defendant.
In track 12, titled “No Stopping Rounds,” are the words “Oh yeah, much love to all the homies, on the streets and incarcerated. This is San Jo right here, West Side, Frank Gucci, Beat Down records recognize.” This portion of track 12 was played for the jury immediately before and after defendant was ordered to, and did, speak the same words before the jury.
The Defense case
California State University in Sacramento Professor James Hernandez testified as an expert in Hispanic street gangs as follows.
Historically, Nortenos are associated with the Nuestra Familia prison gang and the color red, and Surenos are associated with the Mexican Mafia prison gang and the color blue. Currently, however, people residing in certain areas will claim Norteno or Sureno, red or blue, simply because their area is red or blue. People cannot be categorized as gang members just by the color of the clothes they wear or by their tattoos.
Membership in Northern California criminal street gangs is very fluid; individuals will change affiliations frequently or leave the gang environment, sometimes just by moving or by “aging out.” About 67.9 percent of gang members in Northern California are involved in gangs for no more than one year, and a very small fraction will stay involved longer than five years. Most criminal street gangs have around 30 members but only five to seven members are responsible for the majority of the activities of the gang. The gangs themselves reflect their neighborhoods; the more aggressive gangs are in high-crime areas. Aggressive activity by a gang member tends to diminish after the age of 24 to 26.
In Professor Hernandez’s opinion, WSM is not a criminal street gang. Rather it is “a group of youth that have a name that hang out together. There’s no indication of leadership. There’s no indication of longevity. I see it as a group that is prone to maybe some violent activity, but in terms of an organized California street gang, I don’t see it.” Further, in his opinion, there is no way to tell that the two alleged predicate homicides were done for the benefit of the group rather than for each of the individuals.
Asking people “do you bang?” is asking them if they are involved in a gang culture. It could also be a challenge to them. They can respond any way they want, but they do not need to verbally respond. In Professor Hernandez’s opinion, there is no indication that the fight that occurred at the San Jose flea market on December 19, 2004, was a gang-related fight. However, the facts are consistent with a gang fight.
The lyrics in the CD are not necessarily related to a criminal street gang. A lot of the lyrics are generally hostile, which is not unusual in rap lyrics. Neither is the art on the CD cover necessarily related to a criminal street gang. The artists involved are just singing about and drawing the world they know. The use of red lettering and some of the lyrics reflects that the artists identify themselves as Nortenos, but not necessarily as Norteno gang members. In Professor Hernandez’s opinion, the CD was made for financial gain and not for the benefit of a criminal street gang.
Verdict, Admission of Priors, Motion for New Trial, and Sentencing
On February 28, 2006, the jury found defendant guilty of assault with a deadly weapon (§ 245, subd. (a)(1)), and found true the allegation that the offense was committed for the benefit of, at the direction of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(B)). Defendant waived a trial on the alleged priors and admitted that he had a prior serious felony conviction that also qualified as a strike. (§§ 667, subd. (a), 1170.12.) Defendant filed a request that the court dismiss his prior strike pursuant to section 1385 on August 15, 2006, and a motion for new trial on October 4, 2006. The prosecutor filed opposition to both motions. Following a hearing on October 20, 2006, the court denied the motion for new trial and took the motion to dismiss the strike under submission. At the sentencing hearing on November 3, 2006, the court struck the strike and imposed the upper term of four years plus a consecutive five-year term for the prior serious felony enhancement. It struck the additional punishment for the gang enhancement.
DISCUSSION
The Sufficiency of the Evidence of Assault with a Deadly Weapon
The prosecutor argued to the jury that defendant could be found guilty of assault with a deadly weapon “three ways. One, he was the stabber.” “Method two, he aided and abetted the stabber.” “The third way . . ., even if he himself didn’t do it, is this doctrine of natural and probable consequences.” The record on appeal does not disclose which theory the jury relied on in finding defendant guilty of assault with a deadly weapon. Defendant argues on appeal that the evidence was insufficient to sustain a guilty verdict on any of these theories and, therefore, the conviction must be reversed. The Attorney General disagrees, and contends that there is substantial evidence to support the conviction under all three of the theories.
“In resolving claims involving the sufficiency of evidence, a reviewing court must 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.’ (Jackson v. Virginia (1979) 443 U.S. 307, 309 . . . .) The supporting evidence must be substantial, that is, ‘evidence that “reasonably inspires confidence and is of ‘solid value.’ ” ’ [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 34.) “ ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
We need not determine whether the evidence was sufficient to support all three of the prosecutor’s theories. “Both [our Supreme Court] and the United States Supreme Court have held that when a prosecutor argues [multiple] theories to the jury, one of which is factually sufficient and one [or more] of which is not, the conviction need not be reversed, because the reviewing court must assume that the jury based its conviction on the theory supported by the evidence. (Griffin v. United States (1991) 502 U.S. 46; People v. Guiton (1993) 4 Cal.4th 1116.)” (People v. Seaton (2001) 26 Cal.4th 598, 645.)
Here, there was ample evidence to support the prosecutor’s theory that defendant aided and abetted the stabber under the natural and probable consequences doctrine. “It is important to bear in mind that an aider and abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ [Citation.] Thus, for example if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117; see also Judicial Council of Cal. Crim. Jury Instns. (2007) CALCRIM No. 403.) “To trigger application of the ‘natural and probable consequences’ doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed.” (People v. Prettyman (1996) 14 Cal.4th 248, 269.)
The record reveals that the fight with the Sureno gang members during which the assault with a deadly weapon occurred in this case was committed for the benefit of defendant’s Norteno gang, WSM. It appeared to three witnesses of the fight that three Sureno gang members challenged three Norteno gang members to a fight, and that the Norteno gang members accepted the challenge. Asking “do you bang” may be viewed by gang members as a challenge to them. Defendant was expected to participate in a fight with rival gang members once he or one of his cohorts was so challenged. Defendant was wearing clothing consistent with being a Norteno gang member and he has WSM gang tattoos. There was evidence that the fight benefited WSM’s reputation as being violent and strong, which helps the gang grow in number and strength. During the fight, a Sureno gang member was stabbed. Given the gang-related purposes to be served by fighting rival Sureno gang members who had challenged defendant and his cohorts, we assume that the jury found that assault with a deadly weapon would have been reasonably foreseeable to a person in defendant’s position. The use of the stabbing instrument during the fight that occurred after the challenge in this case was foreseeable given that gang members commonly carry weapons such as stabbing instruments on their persons when in public in order to protect themselves from, or to inflict injury on, their rival gang members. Under the circumstances, therefore, we find the evidence sufficient to support the finding that defendant was guilty of assault with a deadly weapon, which was a natural and probable consequence of the gang fight. (See People v. Gonzales (2001) 87 Cal.App.4th 1, 10 [fatal shooting of rival gang member was natural and probable consequence of gang-related fist fight]; People v. Montano (1979) 96 Cal.App.3d 221, 227 [attempted murder of rival gang member was natural and probable consequence of gang attack on rival gang.)
That there was no evidence that defendant knew about the presence of the stabbing instrument or about his cohort’s intent to use it in a gang-related fight is of no moment. (See People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.; People v. Montano, supra, 96 Cal.App.3d at p. 227.) Defendant could properly be found guilty of assault with a deadly weapon if a reasonable person under the circumstances would recognize that use of a deadly weapon was a reasonably foreseeable consequence of the gang fight and, in our view, it should come as no surprise to a member of a criminal street gang that a fellow gang member in a gang-related fight might have and use a stabbing instrument or other deadly weapon during the fight. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1133; People v. Nguyen (1993) 21 Cal.App.4th 518, 531; People v. Woods (1992) 8 Cal.App.4th 1570, 1587.)
Sua Sponte Instruction
While explaining the natural and probable consequences doctrine during closing argument, the prosecutor argued in part as follows:
“Okay. So let’s go over the elements of natural and probable consequences. It’s in instruction 403. One, first you have to find the defendant guilty of a crime. What’s the crime here? I mentioned to you I’d talk about fighting in public. This is where it fits in. First element is you have to find the defendant’s guilty of fighting in public. That’s a crime under Penal Code section 415, subdivision 1. I’m going to tell you what that is. I’ll come back to it.
“Two, during the commission of the crime of fighting in public, assault with a deadly weapon happened. That happened in this case. It happened during the fight in public there at the flea market, not after, not before. It happened during the fighting in public.
“Three. Under all the circumstances, a reasonable person (indicating) in his position, the defendant’s position – not yours, his – would have known the commission of assault with a deadly weapon was a natural and probable consequence of the commission of fighting in public. In other words, under all the circumstances a reasonable person in the position of a gang member, with the knowledge of what their lifestyle is about, would have known that an assault with a deadly weapon was a natural, probable consequence, was likely to happen. All right?
“Now, what I want to be clear about, what this does not say here, what this does not say is the defendant had to actually know it. Right? This is talking about a reasonable person. And a reasonable person, not the defendant, a reasonable person would have known. Not actually knew, but would have known that this was likely to happen. Right? So on this theory, what you do not focus on is whether the defendant knew this was going to happen. That’s that second theory, okay? Second aiding and abetting. I think there’s evidence he did know it was going to happen because that’s just how they fight. That’s how gang members fight. But going back to what I said, he’s guilty even if he didn’t know under this doctrine.” (Italics added.)
Defendant contends the trial court had a sua sponte duty to instruct the jury “that proof of [defendant’s] gang membership and his knowledge that gang members can be expected to use weapons in gang fights did not prove the actual knowledge element of aiding and abetting liability [and that the court]’s failure to do so ‘ratified the prosecutor’s error.’ ” Defendant’s contention is based on his underlying argument that the italicized portion of the prosecutor’s argument above “posited an incorrect legal theory of aiding and abetting liability. That is, it proposed that even in the absence of evidence proving actual knowledge by [defendant] of the stabber’s intent, the jury could find that the knowledge element had been established by proof that appellant was a gang member who was well aware of the proclivity of gang members to use weapons in fights.” “[S]ince aider and abettor liability requires proof beyond a reasonable doubt that appellant ‘knew the perpetrator intended to commit the crime,’ not that it was foreseeable he would, the prosecutor’s theory was legally incorrect. [¶] This defect is similar to the incorrect prosecution theory in [People v. Green (1980) 27 Cal.3d 1, at pages 65-67 (Green)] that kidnapping could be proven by evidence that the victim had been asported for 90 feet.”
Even if we had assumed that the jury found defendant guilty of assault with a deadly weapon based on aider and abettor liability, which we had not, we would not find that reversal is required. The court’s instructions to the jury did not permit a conviction based on aider and abettor liability if the jury found that defendant did not have actual knowledge that the perpetrator intended to commit assault with a deadly weapon.
The trial court instructed the jury pursuant to CALCRIM No. 401 that “To prove that the defendant is guilty of a crime based on aiding and betting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.” (Italics added.) The instruction was governing and was a correct statement of the law, and we presume that the jury relied on the court’s instructions, not the prosecutor’s arguments, in convicting defendant. (People v. Morales (2001) 25 Cal.4th 34, 47.)
As our Supreme Court explained in People v. Morales, supra, 34 Cal.4th at page 48: “We recognize that Green’s discussion of asportation could be read to suggest that because the closing argument is part of the presentation of the state’s case, error may arise solely from improper remarks made therein. That would, however, be an incorrect reading of precedent. Green, supra, 27 Cal.3d 1, stands for the proposition that the prosecution may present a case in which jurors may have been (1) legally misled by instructions or evidence, i.e., presented an ‘alternate theory [that] is legally erroneous’ (id. at p. 69) because it is based on (a) incorrect instructions or (b) inadmissible evidence; or (2) factually misled by evidence, ‘i.e., when the reviewing court holds the evidence insufficient to support the conviction.’ (id. at p. 70). Properly understood, Green reasons that in cases suffering from insufficient evidence, deficient instructions, or other errors made in presenting evidence or giving instructions, ill-advised remarks by the prosecutor may compound the trial’s defects. Nothing of the type occurred here.”
In the case before us, as in Morales, the jurors were not legally misled by instructions or evidence, or factually misled by evidence. Most importantly, the court did instruct the jury that, in order to find defendant guilty of assault with a deadly weapon on an aider and abettor theory, it must find that defendant knew that the perpetrator intended to commit that crime. Accordingly, no instructional error has been shown.
Prosecutorial Misconduct
Defendant contends that, “[e]ven if this court determines that there was no judicial error on the part of the trial court for failing to give a preclusive instruction, the conviction should nonetheless be reversed on the ground that the prosecutor posited a legally incorrect theory of aiding and abetting liability in his closing argument. When a prosecutor misstates the law in argument, it constitutes misconduct. (People v. Morales, supra, 25 Cal.4th at [p.] 43.)”
When the prosecutor misstates some law during argument, “such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper basis. [¶] When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]” (People v. Morales, supra, 25 Cal.4th pp. 43-44.) Defendant made no objection to the prosecutor’s remarks during closing argument that he claims here constitute prosecutorial misconduct. Therefore, he has waived this claim on appeal. (Ibid.)
Defendant also contends that, by failing to object to the prosecutor’s remarks and thereby waiving the claim on appeal, his trial counsel rendered ineffective assistance. He argues that “there is no satisfactory explanation for trial counsel’s failure to object to the prosecutor’s improper argument,” and that he was prejudiced because it cannot be determined that the jury relied on a proper theory of criminal liability.
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.) Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Strickland, supra, at p. 697.)
In this case, defendant cannot demonstrate prejudice. Defendant’s contention is that he was prejudiced as trial counsel permitted the jury to hear an improper legal theory encouraging them to find that he had the actual knowledge and intent required as an aider and abettor. However, we have found that the evidence is sufficient to support defendant’s conviction on a different factual theory, that of the natural and probable consequence doctrine. Under this theory, the jury did not have to find that defendant had the actual knowledge and intent required as an aider and abettor. In addition, we have found that the court properly instructed the jury on aiding and abetting. Accordingly, it is not reasonably probable that the result of the proceeding would have been different even if counsel had objected to the prosecutor’s argument.
Admission of the CD and its cover and lyrics
Defendant contends that the trial court’s decision to admit the rap CD, its cover, and the transcript of some of its lyrics over his Evidence Code section 352 objection constitutes reversible error. He argues that the prejudicial effect of these items “clearly outweighed their probative value. Thus, it was an abuse [of discretion] to admit the evidence.”
Background
The prosecutor moved in limine to admit the CD, its cover and some of its lyrics, contending that they were relevant on the issues of whether defendant is a gang member and of his motive in the case, “to show his hatred for Surenos.” The prosecutor also argued that the gang expert, Detective Speaks, relied on the CD in part to tender his opinion on whether defendant was a member of WSM. Defendant opposed the motion, contending that the First Amendment “allows a person to say virtually anything they want to except under certain defined circumstances under the law, such as screaming out ‘fire’ in the movie theatre.” “The music lyrics cannot be used against him for the basis of forming an opinion that he’s a gang member.” Defendant requested an Evidence Code section 402 hearing on the issue, and the court granted the request.
The Evidence Code section 402 hearing was held outside the presence of the jury. Detective Speaks, who had previously been accepted as an expert on Hispanic street gangs, testified that, in his opinion, defendant is the person on the cover of the CD who is wearing a white shirt with “Gucci” written across the front of it. “Frank Gucci” is also on the front of the CD, and the materials with it state that Frank Gucci is its executive producer, and that Frank Gucci performed all songs.
Detective Speaks obtained the CD from another officer who seized it during a search undertaken some months after defendant’s arrest. The title of the CD is “Prisoners of War.” Artwork on the CD and its cover includes street signs of “West Alma” and “Sanborn,” which is the heart of WSM territory; the San Jose Sharks symbol, showing that the gang is in the city of San Jose; a huelga bird; and a skeleton. The cover also includes the names Jaime Valenzuela and Chad Cleveland, who are two WSM members in custody for having participated in gang-related homicides.
Lyrics of some of the tracks on the CD refer to being a member of WSM. The lyrics also include the word “scraps,” which is a derogatory term Nortenos use to refer to Surenos, and references to being Nortenos and killing a rival.
The prosecutor argued that the evidence was sufficient “to lay a foundation that this defendant is associated with the CD and is involved in the production of it.” “[T]here’s certainly sufficient evidence to allow this issue to go to the jury and consider the defendant’s involvement with it. It certainly is relevant.” Defendant argued that the CD was not relevant “in that the prosecution has not elicited a theory of admissibility for the CD other than what they stated initially as one motive; and, two, that the CD would serve as a basis for the expert to opine that [defendant] was a gang member. As to the second point, that is cumulative and in a balance of probative versus unduly prejudicial I don’t believe that it should come in. As to motive, the prosecution hasn’t [¶] . . . [¶] . . . particularly elicited its exact theory on the admissibility for a motive. And absent them doing that, I don’t think they’ve established the relevance for admitting the CD into evidence.” “There is nothing to tie my client to this except for the fact that his picture appears.”
The court then ruled: “That’s something you should present to the jury. I think there are, and I think that the probative value outweighs any prejudice, which I don’t feel is undue under the circumstances. And therefore I’m going to deny the [Evidence Code section] 352 motion. And I think it is relevant. So I’ll deny that motion.”
Discussion
Evidence of a defendant’s criminal disposition is inadmissible to prove he committed a specific criminal act. (Evid. Code, § 1101; People v. Williams (1997) 16 Cal.4th 153, 193; People v. Champion (1995) 9 Cal.4th 879, 922 (Champion).) Admission of evidence of a defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the charged offense. (Williams, supra, 16 Cal.4th at p. 193.) However, “in a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect.” (Ibid.; see also People v. Sandoval (1992) 4 Cal.4th 155, 175; Evid. Code, § 352.) “[E]ven where gang membership is relevant, because it may have a highly inflammatory impact on the jury trial courts should carefully scrutinized such evidence before admitting it. [Citation.]” (Williams, supra, 16 Cal.4th at p. 193; Champion, supra, 9 Cal.4th at p. 922.)
Evidence of gang membership, and the conduct associated with that membership, is relevant if such evidence tends logically, naturally, and by reasonable inference to establish a motive in a gang-related crime or to fortify the testimony of witnesses who have identified the defendant as a participant in the crime. (Champion, supra, 9 Cal.4th at p. 922; People v. Tuilaepa (1992) 4 Cal.4th 569, 588.) While such evidence “often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact invokes an emotional bias.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 (Olguin); see also People v. Karis (1988) 46 Cal.3d 612, 636.) The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason. (People v. Brown (2003) 31 Cal.4th 518, 547; Olguin, supra, 31 Cal.App.4th at p. 1369.) “ ‘Where . . . a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ (People v. Jordan (1986) 42 Cal.3d 308, 316.)” (Olguin, supra, 31 Cal.App.4th at p. 1373.)
In Olguin, rap lyrics handwritten on yellow paper were found during a search of the home of one defendant, Francisco Mora, three weeks after the offense at issue. One song referred to its composer as “ ‘Vamp,’ ” Mora’s gang moniker. The second song purported to be composed by “ ‘Franky,’ ” which could be a nickname for Francisco. The lyrics included references to gang membership and could be interpreted as referring to diskjockying, a part-time employment of Mora. (Olguin, supra, 31 Cal.App.4th at p. 1372.) The lyrics did not mention the crime for which the defendants were on trial, but did “reflect gang morals and values.” (Id. at p. 1375.) Mora contended on appeal that the lyrics were inflammatory and their admission violated Evidence Code section 352. (Id. at p. 1373.) The appellate court disagreed. “This was a crime alleged to be gang related. Gang membership was obviously important, and the evidence tending to show it was highly relevant. [Citations.] The mere fact the lyrics might be interpreted as reflective of a generally violent attitude could not be said ‘substantially’ to outweigh their considerable probative value. It looks to us like the trial court got it right; certainly it has not been shown there was any abuse of discretion.” (Ibid., fn. omitted.)
In this case, we find that the trial court could have reasonably concluded that the probative value of the CD, its cover and lyrics was not outweighed by any emotional bias they invoked. Defendant’s picture was on the cover of the CD, the tracks were produced and performed by “Frank Gucci,” Frank is defendant’s middle name, and the cover and the songs on the CD refer to defendant being a member of WSM, a San Jose Norteno gang. Nevertheless, even if the admission of the evidence was erroneous, we cannot say that it made the trial fundamentally unfair. (See Estelle v. McGuire (1991) 502 U.S. 62, 70.)
“Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson[ (1956)] 46 Cal.2d [818,] 836.)” (People v. Partida (2005) 37 Cal.4th 428, 439.) On the record before us, we cannot say that it is reasonably probable the verdict would have been more favorable to defendant absent the admission of the CD, its cover and lyrics. There was ample evidence of defendant’s involvement in the fight that resulted in the stab wound to the victim, who appeared to the witnesses of the fight to be a rival gang member, as well as ample evidence to support the gang enhancement even without consideration of the rap CD, its cover and lyrics.
Gang Expert Testimony
Defendant contends that the trial court prejudicially erred by permitting Detective Speaks to testify, over defendant’s objection, that defendant “committed the charged offense ‘with the specific intent to promote further or assist in criminal conduct by gang members.’ ” He argues that an expert witness may not express an opinion regarding a defendant’s specific intent. “[W]hile an expert may give an opinion which provides a basis for the jury to find specific intent, it is improper for the expert to usurp the jury’s function by directly testifying that the defendant had the requisite specific intent.”
“It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.] California law permits a person with ‘ “special knowledge, skill, experience, training, or education” in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801).’ (People v. Gardeley [(1996)] 14 Cal.4th [605,] 617.) However, Evidence Code section 801 limits this testimony to that related to a subject ‘ “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” ([Evid. Code, § 801,] subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion. [Citations.]’ (People v. Gardeley, supra, at p. 617.)” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1197.)
“Expert opinion testimony allowed under People v. Gardeley has not included testimony that a specific individual possessed a specific intent. (People v. Kellebrew [(2002)] 103 Cal.App.4th [644,] 657-658.)” (In re Frank S., supra, 141 Cal.App.4th at p. 1197.) The court in Kellebrew “found the expert’s testimony regarding the minor’s specific intent to ‘promote, further, or assist’ in criminal conduct by gang members (§ 186.22, subd. (b)(1)) exceeded ‘the type of culture and habit testimony found in the reported cases.’ (People v. Killebrew, supra, 103 Cal.App.4th at p. 654.) In Killebrew, the expert officer testified ‘that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.’ (id. at p. 652.) This testimony provided the only evidence to establish the elements of the crime. (Id. at p. 659.)” (In re Frank S., supra, 141 Cal.App.4th at p. 1197.) Therefore, the Killebrew court found that reversal of the judgment was required. (People v. Killebrew, supra, 103 Cal.App.4th at p. 659.)
In this case, Detective Speaks testified as to his belief of the “subjective intent” of defendant, an issue reserved to the trier of fact. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) He stated that, in his opinion, “the assault that took place on December 19th, 2004 alleged to involve the defendant, was . . . committed for the benefit of, at the direction of or in association with a criminal street gang, in this case, West Side Mob.” However, the prosecution also presented evidence other than Detective Speaks’s improper opinion on the ultimate issue to establish that the assault was “committed for the benefit of, at the direction of, or in association with [a] criminal street gang.” (§ 186.22, subd. (b)(1).) The prosecution presented evidence that Nortenos and Surenos are rival gang members, and that responding to a challenge by rival gang members benefits a gang by enhancing its reputation. Three of the people involved in the fight on December 19, 2004, appeared to witnesses of the fight to be Sureno gang members and the other three, including defendant, appeared to be Norteno gang members. One of the Surenos challenged the Nortenos by asking, “Do you bang.” When one of the Nortenos responded to the challenge by responding “puro norte,” the fight began. Gang members often carry stabbing instruments in public in order to protect themselves from, or to inflict injury on, rival gang members, and after this fight one of the Surenos was treated for a stab wound. This constituted sufficient evidence that defendant’s actions in participating in the fight that resulted in the stabbing of a Sureno gang member were done with the intent to aid and promote defendant’s Norteno gang. (See People v. Gamez (1991) 235 Cal.App.3d 957, 978, disapproved on another point in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10; People v. Muniz (1993) 16 Cal.App.4th 1083, 1087-1088; People v. Ferraez (2003) 112 Cal.App.4th 925, 928, 930-931.) Accordingly, we find that it is not reasonably probable that a result more favorable to defendant would have occurred had the court excluded the improper opinion of Detective Speaks at issue here. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Instruction on the Natural and Probable Consequences Doctrine
The court instructed the jury pursuant to CALCRIM No. 403 as follows: “Before you may decide whether the defendant is guilty of Assault with a Deadly Weapon, in violation of Penal code section 245(a)(1), you must decide whether he is guilty of Fighting in Public, in violation of Penal Code section 415(1). [¶] To prove that the defendant is guilty of Assault with a Deadly Weapon, in violation of Penal Code section 245(a)(1), the People must prove that: [¶] 1. The defendant is guilty of Fighting in Public, in violation of Penal Code section 415(1); [¶] 2. During the commission of the Fighting in Public, in violation of Penal Code section 415(1), the crime of Assault with a Deadly Weapon, in violation of Penal Code section 245(a)(1) was committed; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the Assault with a Deadly weapon, in violation of Penal Code section 245(a)(1) was a natural and probable consequence of the commission of the Fighting in Public, in violation of Penal Code section 415(1). [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the Assault with a Deadly Weapon, in violation of Penal Code section 245(a)(1) was committed for a reason independent of the common plan to commit the Fighting in Public, in violation of Penal Code section 415(1), then the commission of Assault with a Deadly Weapon, in violation of Penal Code section 245(a)(1) was not a natural and probable consequence of Fighting in Public, in violation of Penal Code section 415(1). [¶] To decide whether the crime of Assault with a Deadly Weapon, in violation of Penal Code section 245(a)(1) was committed, please refer to the separate instructions that I will give you on that crime.”
Defendant contends that the court erred by failing to give the optional additional language of CALCRIM No. 403 as follows: “[The people are alleging that the defendant originally intended to aid and abet either _____ <insert target offense> or _____ <insert alternative target offense>. [¶] The defendant is guilty of _____ <insert non-target offense> if you decide that the defendant aided and abetted one of these crimes and that _____ <insert non-target offense> was the natural and probable result of one of these crimes. However, you do not need to agree about which one of these two crimes the defendant aided and abetted.]” Defendant argues that “[a]bsent this language, CALCRIM No. 403 permits the jury to find natural-and-probable consequences liability without finding that the defendant aided and abetted the perpetrator of the non-target crime.”
The Attorney General argues: “It is clear that this bracketed instruction applies where the prosecutor is relying upon more than one target offense as a basis for arguing that a non-target offense (the charged offense) was the natural and probable result. In this case, the prosecutor only relied upon one target offense, fighting in public. Thus, there was no need to tell the jury to make a choice between target offenses and that they did not need to agree about which of the target offenses the defendant aided and abetted.” We agree with the Attorney General.
Moreover, in addition to CALCRIM No. 403, the court instructed the jury with CALCRIM Nos. 400 and 401. CALCRIM No. 400 informed the jury that a person is guilty of an offense if he or she aided and abetted the perpetrator who actually committed the offense. CALCRIM No. 401 told the jury how it could find defendant guilty as an aider and abettor of the perpetrator of an offense that defendant intended to commit, and CALCRIM No. 403 as given told the jury how it could find defendant guilty as an aider and abettor of the perpetrator of an offense that was a natural and probable consequence of the offense that defendant intended to commit. Thus, the instructions that were given, taken as a whole, did not permit the jury to find defendant guilty of assault with a deadly weapon under the natural and probable consequences doctrine without first finding that he aided and abetted the actual perpetrator of that assault. No instructional error has been shown.
The court instructed the jury: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the ‘perpetrator.’ A person is guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime person may also be found guilty of other crimes that occurred during the commission of the first crime.
The court instructed the jury as follows: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty of an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.”
The Sufficiency of Evidence of the Gang Enhancement
Defendant contends that the evidence was insufficient to support the jury’s finding that the assault with a deadly weapon was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Specifically, he argues that there was insufficient evidence that WSM’s primary activities were the commission of crimes enumerated in section 186.22, subdivision (e), and that there was insufficient evidence of the required predicate offenses.
The sufficiency of the evidence standard applicable in reviewing convictions, as discussed above, also applies to a challenge to a true finding on a gang enhancement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
“To trigger the gang statute’s sentence enhancement provision (§ 186.22, subd. (b)), the trier of fact must find that one of the alleged criminal street gang’s primary activities is the commission of one or more of certain crimes listed in the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) “Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group’s primary activities. Both past and present offenses have some tendency in reason to show the group’s primary activity (see Evid. Code, § 210) . . . .” (Sengpadychith, supra, at p. 323.)
“Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)” (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; italics omitted.)
In this case, the record supports the finding that members of WSM consistently and repeatedly have committed criminal activity listed in section 186.22. Detective Speaks testified that two of WSM’s primary activities were the commission of assault with a deadly weapon and murder, both offenses listed in section 186.22, subdivision (e). There was evidence that David Holmes pleaded no contest to having committed an assault with a deadly weapon on September 18, 2002, and admitted a gang allegation. There was also evidence the Joseph Sullivan pleaded no contest to having committed an assault with a deadly weapon on July 12, 2001, and admitted a gang allegation. In Detective Speaks’s opinion, both Holmes and Sullivan were members of WSM at the time of their offense. In addition, Chad Cleveland and Jaime Valenzuela were separately found guilty by a jury of having committed murder, and each jury found true a gang enhancement allegation. Detective Speaks testified that Cleveland and Valenzuela were known WSM gang members. And, as we stated above, the record amply supports the jury’s finding that defendant was involved with two fellow gang members in a fight with rival gang members on December 19, 2004, which resulted in a rival gang member being assaulted with a deadly weapon. On this record, we cannot say that the five offenses were isolated events. (See In re Alexander L. (2007) 149 Cal.App.4th 605, 611.) Rather, we find that there was ample evidence to support the finding that WSM’s primary activities were the commission of crimes enumerated in section 186.22, subdivision (e).
“[A] gang otherwise meeting the statutory definition of a ‘criminal street gang’ . . . is considered a criminal street gang under [section 186.22] only if its members ‘individually or collectively engage in or have engaged in a pattern of criminal gang activity’ (§ 186.22, subd. (f)) . . . .” (People v. Gardeley, supra, 14 Cal.4th at p. 621.) “Section 186.22, subdivision (e) defines ‘pattern of criminal gang activity’ as ‘the commission, attempted commission, or solicitation of two or more’ enumerated offenses occurring within a specified time period, and ‘committed on separate occasions, or by two or more persons.’ ” (Gardeley, supra, at p. 621.) These predicate offenses need not be gang-related. (Ibid.)
As stated above, the prosecution in this case presented evidence of four prior offenses by individual WSM gang members, as well as evidence of the present offense by defendant, a WSM gang member, and two other fellow gang members. Accordingly, there was sufficient evidence to prove the minimum of two predicate offenses by WSM gang members.
Cumulative Error
Defendant contends that, even if this court finds that the above alleged errors are not prejudicial when viewed separately, their collective effect denied him a fair trial. Our Supreme Court has recognized that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) We have concluded that the evidence amply supports defendant’s conviction and gang enhancement and that it is not reasonably probable that a result more favorable to defendant would have occurred absent any of the alleged errors. Accordingly, we also find that no cumulative prejudicial error has been shown.
Sentencing Error
The trial court sentenced defendant to the upper term of four years for the assault conviction, with a consecutive term of five years for the prior serious felony enhancement. It struck the strike and the additional punishment for the gang enhancement. Both the prior serious felony enhancement and the strike were based on defendant’s prior conviction for assault with a deadly weapon. In imposing the upper term, the court stated: “I will impose the aggravated term because I am considering the fact that the defendant was wearing gang attire and with other gang members and clashing with an opposing gang at the time that this offense was committed.”
Defendant contends that the court erred in imposing the upper term because the stated aggravating factors were not alleged in the information and were not found true by the jury beyond a reasonable doubt. Citing People v. Black (2007) 41 Cal.4th 799 (Black), the Attorney General contends that the court properly imposed the upper term because defendant admitted the prior strike. Citing People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the Attorney General contends that any Cunningham error was harmless.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, the court further considered the issue and determined that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) In Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), the court concluded that under California’s determinate sentencing law the middle term is the “statutory maximum” for Apprendi purposes. (Cunningham, supra, 127 S.Ct. at p. 868.) The court held that, by allowing imposition of an upper term sentence based on aggravating circumstances found solely by the judge, California’s determinate sentencing law “violates Apprendi’s bright-line rule” (ibid.), and that the upper term may be imposed only if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, 127 S.Ct. at p.871.)
In Black, supra, 41 Cal.4th 799, our Supreme Court reexamined the propriety of the defendant’s upper term sentence in light of Cunningham. The court concluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black, supra, at p. 813.) It therefore held “that ‘imposition of the upper term does not infringe upon the defendant’s constitutional right to a jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.’ ” (Id. at p. 824.) Because the trial judge based the upper term sentence in that case upon a factor that was the basis for the jury’s true finding beyond a reasonable doubt on a special allegation, the Black court held that the upper term sentence was not unconstitutional. (Id. at pp. 816-817.)
In the case before us, although defendant admitted the prior strike, the trial court did not base the upper term sentence on the strike. The court stated that it imposed the upper term based upon factors that may or may not have been the basis for the jury’s true finding beyond a reasonable doubt on the gang allegation. The court found that defendant was wearing gang attire, was with other gang members, and was clashing with rival gang members at the time the charged offense was committed. Although there was substantial evidence to support these findings and the jury found that the charged offense was committed for the benefit of, or in association with, a criminal street gang, the jury did not necessarily have to find any or all of the factors the trial court found in order to make its true finding on the gang enhancement. Because the trial judge based the upper term sentence upon facts that may not have been the basis for the jury’s true finding on the gang allegation, imposition of the upper term violated defendant’s right to a jury trial.
This issue is currently pending in our Supreme Court. (See, e.g., People v. Gonzales (Dec. 3, 2007, H031003) [nonpub. opn.], review granted Feb. 13, 2008, S159835.)
Deprivation of the right to a jury trial on the issue of aggravating circumstances for sentencing is reviewed under a Chapman harmless error standard. (Sandoval, supra, 41 Cal.4th at p. 838; see also Chapman v. California (1967) 386 U.S. 18; Washington v. Recuenco (2006) 548 U.S. 212 [126 S.Ct. 2546].) Under this analysis, “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra, at p. 838.) That is, “if a reviewing court concludes, beyond a reasonable doubt, that the jury applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
In this case, we conclude, beyond a reasonable doubt, that the jury applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to them. The aggravating factors relied upon by the trial court were that defendant was wearing gang attire, that he was with other gang members, and that he was clashing with rival gang members at the time the offense occurred. Given the testimony at trial of the three witnesses to the fight that resulted in the assault at issue, their identification of defendant as the fighter wearing the red shirt and red shoes and of his fellow gang member Tapia, and the jury’s finding that the assault was committed for the benefit of a criminal street gang, we find that the Sixth Amendment error was harmless beyond a reasonable doubt under the standard enunciated in Sandoval. (Sandoval, supra, 41 Cal.4th at p. 843.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P.J. ELIA, J.