Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Los Angeles County Super. Ct. No. TA090034
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Isaiah Henderson.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant Carell Johnson.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant Darin Johnson.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey, Sarah J. Farhat and Eric Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
The information charged defendants Isaiah Henderson, Carell Johnson and Darin Johnson with two counts of carjacking (§ 215, subd. (a)) and one count of robbery (§ 211) with the allegations that the crimes were committed for the benefit of a street gang (§ 186.22, subd. (b)(1)(C)) and that a principal personally used a handgun (§ 12022.53, subds. (b) & (e)(1)). In addition, the information charged only defendant Henderson with two counts of unlawfully carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)) and one count of a felon in possession of a firearm (§ 12021, subd. (a)(1)) and alleged that these three crimes were committed for the benefit of a street gang (§ 186.22, subd. (b)(1)(A).) Lastly, the information alleged that defendant Henderson had suffered a prior conviction.
All undesignated statutory references are to the Penal Code.
The jury convicted the three defendants of the carjacking and robbery charges and found all of the enhancement allegations to be true. The jury was unable to reach verdicts on the three weapons charges alleged against only defendant Henderson. Defendant Henderson admitted the prior conviction.
On these appeals, defendants raise multiple contentions. Two contentions relate to jury selection. The first is that the trial court abused its discretion in denying their motion to discharge the entire panel after one prospective juror (ultimately excused for cause) expressed concern for his safety because he was familiar with two of the defendants. We find no abuse of discretion. The second is that their due process right to a fair trial was violated because the empanelled jury had been exposed to negative comments from other prospective jurors about gangs. We find that this contention has been forfeited.
Defendants’ next assignments of error relate to the gang enhancement. First, they urge that the trial court abused its discretion in denying their request for a separate trial on the gang enhancement. We are not persuaded, either when looking at the record presented when the pretrial motion was made or at the record following conclusion of trial. Next, defendants contend that the evidence is insufficient to support the jury’s findings sustaining the gang enhancement. We disagree, finding substantial evidence to support those findings.
Defendants raise claims of instructional error, attacking five pattern CALCRIM instructions. We are not persuaded by any of their arguments which have been consistently rejected by other Courts of Appeal.
Lastly, defendants urge that the trial court erred in imposing consecutive sentences based on findings made by the court instead of the jury. This contention has been conclusively resolved against the defense by the United States Supreme Court and the California Supreme Court.
The Attorney General correctly notes that the abstract of judgment for defendant Henderson requires correction to reflect the entire sentence imposed by the trial court. Other than directing preparation of amended abstract of judgment for defendant Henderson, we affirm the judgments in their entirety.
STATEMENT OF FACTS
At this point, we summarize the evidence presented regarding the charged crimes and the gang enhancement. The facts relevant to defendants’ other contentions will be set forth when we analyze each contention.
A. The Prosecution’s Case
1. The Weapons Offenses
Because the jury was unable to reach a verdict on these charges (which related solely to defendant Henderson), we need only briefly recite the operative facts.
In the early morning hours of March 17, 2007, the police stopped a car in which defendant Henderson was in the front passenger seat. The driver was Tony Price and the backseat passenger was Vernon Swan. The police found two loaded handguns in a space behind the glove compartment. Based upon this discovery, defendant Henderson was charged with two counts of unlawfully carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)) and one count of a felon in possession of a firearm (§ 12021, subd. (a)(1)) with the allegations that the crimes were committed for the benefit of a street gang (§ 186.22, subd. (b)(1)(A).)
At trial, Price (the driver of car) testified that one gun belonged to him and that he was holding the other gun for “Marciano,” “a guy [he had seen] around the projects every now and then... that you show respect to, an older guy.”
2. The Carjacking and Robbery Charges
Defendants committed the two carjackings and one robbery during daylight on March 6, 2007. The victims are DeShawn Williams and Medrick “Keith” Jones. Williams drove his Chevy Blazer to an apartment building at 103rd Street and Wilmington, a “fairly busy” and “major” intersection, to visit family. Jones (his cousin) was standing outside the building. Williams parked on the street behind Jones’ Chevy Tahoe truck.
As Williams was leaving his car, a Chevy Monte Carlo (later determined to belong to defendant Carell Johnson) pulled up. The three defendants exited the Monte Carlo. Defendants Carell Johnson and Darin Johnson walked up to Jones who was holding his cell phone. Defendant Darin Johnson pulled out a handgun from his waistband, pointed it at Jones and said: “You know what it is, Keith?” Defendant Carell Johnson grabbed Jones’ cell phone from his hand and reached into and removed cash from Jones’ pocket. Defendant Carell Johnson told defendant Darin Johnson to get the keys to Jones’ truck. Defendant Darin Johnson took the keys from Jones’ hand and gave them to defendant Henderson.
As defendants walked away from Jones, they saw Williams’ vehicle. Defendant Darin Johnson pointed a gun at Williams and asked him who owned it. Fearful of the consequences of not answering the question, Williams gave him the keys to his Blazer. Defendant Darin Johnson entered Williams’ vehicle, defendant Carell Johnson entered Jones’ truck, and defendant Henderson returned to the Monte Carlo. All three defendants drove off.
The police were contacted and came to the scene. Jones told the police that he thought all three individuals were members of the Grape Street Crips and that defendant Henderson was known as “Big I” or “Big Guy.” The victims gave the police detailed physical descriptions (height, weight and age) of the three defendants. In addition, the police were given a description of defendants’ vehicle (the Chevy Monte Carlo) and the gun.
In the ensuing investigation, the police again interviewed the victims. Jones told Detective Fairchild that he had heard that one of the suspects went by the name “Hub.” On two occasions, the police showed Jones a photographic six-pack. The first time, Jones identified defendant Henderson as one of the perpetrators. The second time, Jones identified defendant Carell Johnson as another of the perpetrators.
When Detective Fairchild interviewed Williams, he showed him several photographic six-packs. Williams identified defendant Henderson in one of them. On that six-pack, Williams wrote: “I selected No. 4 in card ‘A’ because it looks to be one of the three carjackers who stood off to my left while the gun was being drawn to my right. So I kept my attention to the right.” Williams identified defendant Carell Johnson in the next six-pack. Williams wrote on the six-pack: “I selected No. 4 on card B because it seems to be the driver of the vehicle that the three carjackers pulled up in. He walked up, snatched the phone out of the hands of Medrick [Jones] and said, ‘Get them keys to the red truck.’ Then he walked back to the vehicle that he came in.” In another six-pack, Williams identified defendant Darin Johnson. Williams wrote on the card: “I selected photo 3 on card F because I’m 100 percent sure that that’s the guy which carried the weapon.” In addition, Williams made photographic identifications of defendants’ getaway car (the Chevy Monte Carlo) and the gun used in the incident.
When the victims’ vehicles were recovered, defendant Darin Johnson’s fingerprints were found on both of them. The rims and stereo equipment had been removed from Williams’ Chevy Blazer and the radio system had been removed from Jones’ truck.
Defendant Darin Johnson testified. He denied any involvement with the carjackings or the robbery and denied being a member of the Grape Street Crips. Neither of the other two defendants testified.
3. Gang Evidence
Los Angeles Police Officer Francis Coughlan has worked with gangs in the Watts area for over ten years. The Grape Street Crips is the primary gang operating out of the Jordan Downs Housing Project. In May 2005, Officer Coughlan had stopped defendants Henderson and Darin Johnson while the two men were together. They identified themselves as members of the Grape Street Crips with the street names of, respectively, “Big Guy” and “Hug.” In a similar vein, Los Angeles Police Officer Tyson Hamaoka testified that defendant Henderson had identified himself as a member of the Grape Street Crips with the moniker of “Big Guy.”
Los Angeles Police Officer Daniel Pearce has been a police officer five years. He has worked in the gang unit for three years where, for the previous two years, his primary assignment was the Grape Street Crips. He has testified as a gang expert “about 27 times.” Officer Pearce testified that the site of the carjackings and robbery is in the middle of Grape Street Crips territory. He identified all three defendants as being active members of the Grape Street Crips, each having admitted membership to him. The officer described the gang tattoos on defendants Darin Johnson and Henderson and testified about each defendant’s street name: defendant Darin Johnson is “Hugg”; defendant Henderson is “Big I”; and defendant Carell Johnson is “Little C.” Officer Pearce explained that the primary activities of the Grape Street Crips are murder, drive-by shootings, carjackings, narcotics sales (PCP, crack cocaine, and marijuana), extortion and witness intimidation.
In Officer Pearce’s opinion, the carjackings and robbery were committed for the benefit of and in association with the Grape Street Crips. The crimes were carried out in association with the gang because “three well-documented [Grape Street Crips] gang members” were involved and the crimes were committed “literally right in the middle of the Grape Street Crips neighborhood.” The crimes benefited the Grape Street Crips in several ways. For one, the fruits of the crimes (the stolen cell phone and two cars) could be converted to cash that the gang could use “to help out their gang lifestyle” since gang members do not hold regular jobs. Further, the gang could keep and use the stolen vehicles for other endeavors for its benefit. Officer Pearce explained: “One, it can be used to joy ride, just driving around with the gang members in the car around the neighborhood, showing all their buddies, the other gangsters, how down they are for the hood. [¶] Two, a stolen car can be used for drive-by shootings [and other] crimes such as bank robberies.” In addition to the particular benefits created by the specific crimes, the crimes benefitted the Grape Street Crips because the more crimes a gang commits, the more fear is instilled in the community, lessening the likelihood that a victim would testify against the gang members. Using a gun to commit a carjacking further increased the respect and fear in which the three gang members would be held. Lastly, the extremely bold manner in which the crimes were committed—during broad daylight, in a busy area, involving at least one victim whom defendants knew, and without defendants wearing any masks or bandanas to hide their identities—also increased respect for the gang.
Officer Pearce explained that the facts that defendants did not wear gang colors, throw gang signs, or identify themselves as gang members to the victims did not change his conclusion. Those actions occur when gang members “want to send a message to a rival [gang but here, the crimes] actually happened in Grape Street Area so they really don’t need to send a message. [¶] And, in fact, [defendant] Darin Johnson knew the victim he was robbing [Jones].”
On the issue of witness intimidation, Officer Pearce testified that in the neighborhood in which the crimes occurred, people are very reluctant to give information about the activities of the Grape Street Crips for fear of their life. Crimes go unreported because the victims and witnesses fear retaliation from the gang. Officer Pearce had “been involved in cases where witnesses... say one thing to the police and then change what they said when they come to court later on.”
Officer Pearce also testified about two predicate offenses. The first was a March 2005 murder conviction of Grape Street Crips member Prentis Griffin. The second was the December 2005 attempted murder conviction of Grape Street Crips member Diamond Jones.
DISCUSSION
A. Denial of Defense Motion to Discharge the Jury Panel
Defendants first contend that the trial court abused its discretion when it denied their motion to discharge the entire jury panel after one prospective juror (who was excused) expressed concern for his safety because he was familiar with two of the defendants. We find no abuse of discretion.
1. Factual Background
At the beginning of jury voir dire, the court asked the panel if any believed he or she could not be fair in this case. Several jurors raised their hand. The responses of one of them (Juror No. 17) constitute the sole basis of defendants’ contention that the trial court abused its discretion in denying their subsequent motion to discharge the entire panel. The relevant exchange is the following:
“THE COURT: So you have seen them personally?
“THE COURT: Have you ever had any negative experiences with them personally?
“THE COURT: But just by the fact that you have seen them would cause you to be biased against them?
“THE COURT: Do you think that as we go through the case and we talk about some of the requirements and things we ask our jurors to decide, that you might be, might be able to say you can be fair to both of them?
“THE COURT: So you would be biased against the defendants?
“THE COURT: Well, you say it’s possible, but how do you feel right now?
“THE COURT: But you never had any negative interaction with them; is that correct?
“THE COURT: Why don’t you come side bar for a moment.”
The above concludes the exchange at the heart of defendants’ contention.
At side bar, the court and counsel continued to question Juror No. 17. He explained that he had seen defendants Carell Johnson and Darin Johnson “throughout Compton” and reiterated his fear of them. Juror No. 17 juror returned to his seat and the court discussed the matter with counsel. The court indicated concern about the juror’s ability to follow the presumption of innocence instruction. All parties stipulated to dismiss him. But that did not end the matter. While still at side bar, counsel for defendant Henderson moved to strike the entire panel. He explained: “The entire panel knows it’s a gang case. One of the jurors has said in front of the entire panel, ‘I’ve seen two of these defendants and I’m afraid for my safety and safety of my family.’ I think that taints the entire panel.” The other two defense counsel joined in the motion to strike the panel.
The prosecutor opposed the defense motion. He explained: “And I would just say that each of these questions is going to be explored through each of the jurors. And the court is going to say, has anything you have seen in here prejudiced you. And we ask them for their fair and candid answers and that’s all we can rely on.”
Counsel for defendant Henderson responded: “I would prefer a more direct question. You have heard what this particular juror has said. Do any of you feel the same way[?]”
The court ruled: “Well, they [the panel] heard his response. I don’t want to draw any more attention to that issue, and I think asking that question would do that. So I heard your request, but the motion to strike the panel is going to be denied. These are things that we deal with on a regular basis, these types of cases on a regular basis. Believe me, if any other jurors feel that way, as soon as we come back out there, we’re going to have someone ask to approach side bar. I have also found jurors are able to put it aside.”
Counsel for defendant Carell Johnson stated: “You’re not going to excuse him now, are you? Because if he goes now, all these jurors think he’s afraid. If he walks out of the courtroom now, that gives validity to what he just told all of them.” The court agreed to excuse Juror No. 17 after the rest of the panel left the courtroom for the luncheon recess.
None of the defense counsel asked the court to give a cautionary admonishment to the panel about Juror No. 17’s responses.
Proceedings resumed in open court and the judge explained:
the decisions in the case have to be based solely on the evidence that comes from this witness stand and not from any other source.“Also, you see that we have our side bar conferences out in the hallway. It’s important that you not speculate as to the reason for them, not think about what was discussed, particularly as it relates to when counsel are back there. Don’t worry about what we’re talking about.... So don’t let it affect your decision in any form or fashion.
Voir dire continued. Juror No. 3, after stating a familiarity with and dislike of gangs, asked to discuss the matter at side bar. At that point, the court recessed for lunch but requested Jurors Nos. 3 and 17 to remain. After the panel exited the courtroom, the judge excused Juror No. 17.
Later that day, jury selection resumed and continued for four days. At several points, the trial court and the prosecutor reiterated the presumption of innocence and the People’s burden of proof. The issue of gang membership was explored on multiple occasions. Prospective jurors who expressed a bias or prejudice against defendants, were excused. During this process, only one prospective juror referred to the remarks made on the first day of trial by Juror No. 17. He stated that given Juror No. 17’s fear of defendants, he himself believed them to be gang members. The defense excused this individual from the panel.
2. Discussion
Defendants contend primarily that their rights to due process of law and a fair jury trial were denied by the trial court’s refusal to dismiss the entire panel. According to them, once the panel heard Juror No. 17’s remarks, their “chances at receiving [a] fair trial... were zero.” Secondarily, defendants attack the trial court’s decision not to conduct further voir dire about Juror No. 17’s remarks. We are not persuaded by any of defendants’ arguments.
The Attorney General, relying upon Code of Civil Procedure section 225, first urges that the contention has not been preserved for appeal because defendants did not follow the proper procedure in the trial court. We disagree. Subdivision (a)(1) of the statute provides that a challenge for cause to a trial jury panel “shall be reduced to writing, and shall plainly and distinctly state the facts constituting the ground of challenge” and subdivision (a)(2) requires that “[r]easonable notice... be given to all parties and to the jury commissioner, by service of a copy thereof.” The Attorney General cites no authority for the claim that these requirements apply when, as here, the basis of the challenge to the panel is an event occurring for the first time during the voir dire process such as a prospective juror’s responses to questions. (See 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, §§ 461-462, pp. 658-660 [“Jury panel challenges most commonly involve challenges to the representativeness of the jury[,] either on equal protection grounds or on the ground that the panel does not contain a representative cross-section of the community”].) In any event, the claim is forfeited because the prosecutor never raised this objection in the trial court but, instead, argued against the defense motion on the merits. We therefore turn to the merits of defendants’ contention.
We review the trial court’s ruling denying the motion to discharge the entire jury panel under the deferential abuse of discretion standard. “[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required. Defendant[s] cite no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because [one] prospective [juror has] made inflammatory remarks.... [D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice.” (People v. Medina (1990) 51 Cal.3d 870, 889 (Medina).)
In denying defendants’ requests, the trial judge noted that “[t]hese are things that we deal with on a regular basis” and held that to ask the panel questions about their reaction(s) to Juror No. 17’s comments would only “draw... more attention to that issue.” Based upon his experience, the trial judge believed that if other jurors had the same concerns, it would become apparent during voir dire (which it did). Furthermore, he indicated that in previous cases jurors had been able “to put... aside” concerns such as those expressed by Juror No. 17. Additionally, he soon instructed the jury that it was to decide the case “based solely on the evidence that comes from this witness stand and not from any other source,” an instruction the jury presumptively followed. (People v. Adcox (1988) 47 Cal.3d 207, 253.) Lastly, having had the opportunity to view the reactions of the other jurors during the brief exchange with Juror No. 17, the judge concluded that it was not necessary to discharge the panel. In light of the principles that the trial judge is in the best position to gauge the level of bias and prejudice potentially created by one prospective juror’s comments during voir dire (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466) and that it is within the trial court’s discretion to determine that a prospective juror’s statement was not sufficiently prejudicial so as to require dismissal of the entire jury panel (People v. Nguyen (1994) 23 Cal.App.4th 32, 41), we conclude that the trial court did not abuse its discretion in denying the request to discharge the entire panel. (See also People v. Medina, supra, 51 Cal.3d at pp. 888-889 [no abuse of discretion in denying motion to discharge the entire panel even though several of its members had made remarks in the presence of other potential jurors suggesting that the defendant must be guilty]; People v. Vernon (1979) 89 Cal.App.3d 853, 865 [trial court had no sua sponte duty to declare a mistrial after one prospective juror stated that the defendant had been tried for raping her niece]; and People v. Gonzales (1969) 269 Cal.App.2d 586, 596-597 [trial court properly denied motion for mistrial after one juror stated that he had heard the case was a retrial; there was no basis to conclude that the entire panel was automatically incapable of reaching a fair and impartial verdict after hearing the remark].)
This instruction was repeated several more times as voir dire progressed.
Defendants’ contention that Juror No. 17’s comments violated their constitutional right to confront witnesses is not persuasive. A juror becomes an unsworn witness only if he “communicates objective extrinsic facts regarding the defendant or the alleged crimes to other jurors.” (Jeffries v. Wood (9th Cir. 1997) 114 F.3d 1484, 1488, 1490 [juror tells other jurors about the defendant’s prior robbery conviction], overruled on another ground in Lindh v. Murphy (1997) 521 U.S. 320, 324.) That did not happen here.
In a similar vein, the trial court did not abuse its discretion in declining to question other jurors about Juror No. 17’s remarks. The court reasonably concluded that such an approach was unnecessary and potentially counterproductive because it would only draw unwarranted attention to the remarks and create a potentially prejudicial discussion with other jurors about the remarks. Hence, it was reasonable for the court to wait for an individual juror to raise the point (as did happen) and address that individual’s concerns at that juncture. Further, the court agreed with the concern voiced by one defense counsel that to excuse Juror No. 17 immediately in front of the panel could unnecessarily give credence to the juror’s statements and therefore did not excuse the juror until the panel had left the courtroom for the luncheon recess.
Defendants rely heavily upon Mach v. Stewart (9th Cir. 1997) 137 F.3d 630 (Mach) to support a contrary conclusion. Their reliance is misplaced. Mach was a federal habeas corpus proceeding seeking to reverse the defendant’s Arizona state conviction for oral copulation of an eight-year-old girl. (Id. at p. 631.) One prospective juror was a social worker with Arizona’s Child Protective Services who claimed expertise in the area of sexual abuse of children. She had worked in that capacity for three years. During voir dire, she stated that in every case in which one of her clients reported a sexual assault, the assault had been confirmed. In addition, she stated three times that she was unaware of any case in which a child had lied about being sexually assaulted. (Id. at pp. 631-632.) The trial court excused her for cause but denied the defense motion for a mistrial which claimed the entire panel had been tainted by the juror’s comments. (Id. at p. 632.)
In the federal proceeding to set aside his conviction, the defendant contended that his right to an impartial jury had been violated because the jury panel had been exposed to the potential juror’s “expert-like statements.” (Mach, supra, 137 F.3d at p. 633.) The appellate panel agreed. It explained: “Given the nature of [her] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated, we presume that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually abused. This bias violated [the defendant’s] right to an impartial jury.” (Id. at p. 633.) The appellate court cited no authority for its statement that the juror’s remarks presumptively prejudiced at least one juror who sat on the case.
Quite apart from the fact that we are not bound by decisions from lower federal courts, even on federal questions (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), Mach is distinguishable. There, the dismissed juror, a self-identified expert on child abuse, opined on an issue critical to the case: the credibility of a young victim of sexual abuse. Here, on the other hand, the dismissed juror said nothing that was directly relevant to the charged crimes. He made no statements about the charged crimes or defendants’ gang membership. We therefore reject defendants’ argument that Juror No. 17’s remarks were “significantly more inflammatory than those made in Mach.” Juror No. 17 simply indicated a passing familiarity with two of the defendants that rendered him biased and concerned about his and his family’s safety were he selected to serve on the case. At worst, Juror No. 17’s comments reflected a grim awareness about life in Compton but said nothing that was likely to have tainted the other panel members. Consequently, we are not persuaded by defendants’ claim that Mach’s “circumstances were similar to those presented here” so as to require reversal. In sum, the trial court did not abuse its discretion in denying the request for a new jury panel or in declining to ask follow-up questions immediately after Juror No. 17’s excusal.
Defendants’ reliance upon U.S. v. Iribe-Perez (10th Cir. 1997) 129 F.3d 1167 can be quickly dispatched. There, the trial court released the jury panel before voir dire had begun, explaining that the defendant was going to plead guilty. When the plea did not materialize, the trial court, over defense objection, recalled the same jury panel and began jury selection. The trial court instructed about the presumption of innocence and told the jury that the defendant’s change of plea did not affect that presumption. (Id. at pp. 1169-1170.) The jury ultimately convicted the defendant. The appellate court reversed the conviction. It held that the panel had been tainted because it had earlier been told that the defendant was going to plead guilty to the crime for which it was ultimately impaneled to decide guilt or innocence. (Id. at pp. 1170-1171.) Nothing approaching those facts occurred in this case.
B. Empanelment of a Jury Which Heard Comments About Gangs
Defendants next contend that their rights to due process and a fair jury trial were violated because the trial court empanelled a jury that “was exposed to extensive discussion by jurors of their fear of gangs and their suppositions about gangs.” (Capitalization omitted.) Defendants urge that “[a]s soon as it became apparent that such exposure was occurring, the panel should have been dismissed and a new panel convened and examined on this subject in a manner that shielded the other jurors from each juror’s responses.” As we explain below, this contention has been forfeited because at no point during the voir dire process did any of the three defense counsel raise this concern and ask the trial court to address it.
1. Factual Background
Immediately before trial, defendants moved to bifurcate trial on the issue of the gang enhancement. As we explain later, the trial court properly denied the motion. In so doing, it stated that counsel would be able to address the issues raised by the motion (e.g., gang evidence would prejudice defendants) during voir dire. In addition, the court indicated that it would explain to the jury the limited purpose of the gang evidence. Defense counsel did not object to this voir dire procedure and did not propose proceeding in any other manner.
The basis of the defense motion and the reasons for the trial court’s ruling will be set forth later when we discuss and reject defendants’ contention that the trial court abused its discretion in denying the motion.
Immediately before voir dire began, the court read the charges to the jury, including the allegation that all six crimes were committed to benefit a gang. The court told the jury twice that the charges were “not evidence against the defendants and not to be considered by you as evidence against the defendants.” Shortly after the colloquy with Juror No. 17, the court explained that that the gang allegation involved the Grape Street Crips and asked if anyone had heard of that gang. Before any juror responded, the court explained: “The factual determination whether or not there is any gang involvement or whether someone is a gang member, that’s a determination the jury is going to make. [¶] And simply by hearing that evidence, what’s important is that you not hold it against the defendants. By hearing that allegation and hearing me mention you’re going to hear testimony regarding that particular gang, that’s not to be considered as evidence. You’re not to hold it against the defendants and think that, well, if I hear this testimony then I’m already against them.” Thereafter, voir dire resumed. After one prospective juror indicated a dislike of gangs, the court explained: “[T]he issue in this case is not whether someone likes or dislikes gangs. And I appreciate your frankness, because the attorneys need to know that. But what’s important is, as I indicated to you, that’s an allegation. [¶] You’re going to get some instructions in terms of what that means, and you’re going to get some instructions on what the People must prove before you can even decide whether the allegation is true or not. But what I need to know is at this point, simply by hearing that evidence, knowing we’re going to hear from a gang expert who is probably going to make reference to that gang, simply by having someone called to testify about that, is there anything about that that makes you feel like you could not be a fair and impartial juror?”
Voir dire proceeded for four days. The court, the prosecutor, and defense counsel questioned the prospective jurors at length about potential bias against gangs. Some of this questioning occurred at sidebar and some occurred in open court. Not unexpectedly, quite a number of prospective jurors voiced negative feelings about gangs, indicated personal experiences with gangs, and stated that their negative feelings could or would affect their ability to be fair and impartial. Because this case included a gang enhancement allegation, the questions about experiences with and attitudes towards gangs were proper, if not required. (In re Hitchings (1993) 6 Cal.4th 97, 110-111 [the purpose of voir dire is to uncover jurors’ potential biases].) Throughout the process, the court, the prosecutor, and defense counsel consistently indicated that it would be improper to assume that defendants were guilty of the charged crimes simply if they were proven to be gang members or to conclude that such evidence in any manner diminished the prosecutor’s burden of proof or dissipated the presumption of innocence. The trial court granted the vast majority of defendants’ challenges for cause to jurors who indicated they could not be fair because of their view of gangs and the defense exercised peremptory challenges when their challenges for causes were not sustained. When the parties accepted the panel, the defense still had peremptory challenges remaining.
Defendants raise no claim that the trial court improperly denied either any of their challenges for cause or their Wheeler motions. (People v. Wheeler (1978) 22 Cal.3d 258.)
2. Discussion
It is axiomatic that a party’s rights, including a constitutional right, can be forfeited by failing to make a timely assertion of the right in the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 590.) Here, at no point did defense counsel object that prospective jurors’ negative remarks about gangs (remarks often made in response to questions from defense counsel) were undermining their clients’ constitutional rights and request the trial court to change the procedure in which all parties had (up to that point) participated. Defendants have therefore forfeited their speculative contention that the impaneled jury was unfair or could not be fair. (People v. Cleveland (2004) 32 Cal.4th 704, 736 [“The issue is not cognizable on appeal because defendants did not ask the court to dismiss the venire[;] [d]efendants cannot proceed with the jury selection before this same panel without objection, gamble on an acquittal, then, after they are convicted, claim for the first time the panel was tainted”].)
Defendant Darin Johnson appears to suggest that his trial counsel did interpose the requisite objection(s). Careful examination of the record discloses that this suggestion is incorrect. First, he claims that during voir dire his trial counsel objected to “this type of voir dire.” Not so. The objection went to the fact that the juror was posing questions to counsel as opposed to answering counsel’s questions. The court sustained the objection on that basis, stating: “Just wait for the next question. Let’s try and keep it in a question-and-answer format.” Second, defendant Darin Johnson notes another objection made by his trial counsel but that objection did not involve questions about gangs. Instead, the unsuccessful objection argued only that the prosecutor’s question did not go to a challenge for cause because the prosecutor, in explaining the concept that counsel’s statements are not evidence, had referred to defense counsel’s earlier comment that defendant Henderson was “nice.”
This forfeiture analysis also disposes of defendants’ passing argument regarding another prospective juror’s observations. This juror had told the court at sidebar that during a previous sidebar conference he had seen defendants throwing gang signs at each other. He did not say anything about his observations to the other jurors and none of the jurors mentioned it to him. Defendants now urge that this “highly inflammatory issue” warranted excusal of the panel, or at least, further inquiry by the court whether any other jurors had seen defendants’ actions. This argument has been forfeited because none of the defense counsel asked the trial court to take either action. (People v. Cleveland, supra, 32 Cal.4th at p. 736.) They asked the court only to excuse that juror for cause (a request the court denied following which the defense exercised a peremptory challenge against the juror) and to admonish defendants about their conduct (a request the trial court granted).
Defendants attempt to avoid this conclusion by urging that it would have been futile to bring their concerns to the trial court’s attention because “[t]he [trial] court had already revealed its unwillingness to dismiss the panel despite the exposure of the jury to” Juror No. 17’s comments. The argument is not persuasive. Discharge of an entire panel is a severe remedy to be invoked in only the most limited circumstances. In this case, defendants simply failed to establish that Juror No. 17’s brief remarks at the very beginning of voir dire were sufficient to invoke that remedy. But given that the record of the jury selection process clearly establishes that the trial court was concerned that anti-gang bias not affect defendants’ rights to a fair trial, we find that it would not have been futile to bring concerns about other jurors’ remarks to the trial court’s attention as voir dire progressed. Their contention remains forfeited.
C. Denial of Motion For Separate Trial on Gang Enhancement
1. Factual Background
Immediately before voir dire commenced, counsel for defendant Darin Johnson, without having filed a written motion, moved orally to bifurcate the trial on the gang enhancement allegations. He explained: “I think that hearing any reference to gangs either in voir dire or direct examination, would be prejudicial and would interfere with a fair verdict on guilt[] or innocence. [¶] From reading the transcript I don’t see any reference to gangs in the transcript.” Counsel for defendant Henderson joined in the motion, stating: “I know the court’s experienced, and certainly has tried a lot of cases, and it’s been my experience that as soon as gangs are brought into the case, the jury wakes up and they have a whole different demeanor and different attitude about the case. And I think in order to ensure that my client receive a fair trial, that issue should be bifurcated.” Lastly, counsel for defendant Carell Johnson characterized the evidence as follows: “[T]he facts that are alleged are that the three defendants drove up in a vehicle. One of the defendants had a gun, the two complaining witnesses each had a vehicle. One of the defendants pointed a gun. The keys were given. Two of the defendants got in the car and drove away. [¶] Those are the facts. There was no mention of gangs at all according to the complaining witnesses. So it would be extremely prejudicial to have this jury hear all of this gang information that’s going to be brought in[.] [¶]... I don’t see how the People would be prejudiced if the jury first makes a determination if, in fact, [a] carjacking occurred, and then we can proceed, if necessary, to the gang allegation.”
The prosecutor opposed the request to bifurcate. He explained: “Above and beyond what can be gleaned from the preliminary hearing transcript is, a gang affiliation is part of the identification in this case. So that’s major. [¶] When the victims spoke to the initial officers, and just for counsel, this is on pages 8, 9, 10 and 11 of the date stamped discovery. [Defendant] Henderson was actually identified by name, and he’s a Grape Street Crip, aka Big I. And in fact, we have proof of Mr. Henderson being a Grape Street Crip going by Big I. [¶] Furthermore, on page 11 of the discovery, one of the victims says, ‘And I think all three are Grape Street Gang Affiliates.’ [¶] So if the court wants me to go on any more regarding the preliminary hearing transcript, and why witnesses testify the way they do or are reluctant, I will. But before I even get to any of that, it’s part and parcel of the identification that we’re going to hear about gangs.”
Counsel for defendant Darin Johnson responded: “Regardless of the victims saying they’re Grape Street and the District Attorney saying that it enhances identification of my burden of proof, that still doesn’t give the defendants a fair trial when they’re covered with this gang issue. [¶] He [the prosecutor] can show the burden of proof through the photo I.D. or through a name other than a gang name, and what’s in his reports, and what gang experts will say, still is unfair to the defendants.” Counsel for defendant Henderson reiterated: “[I] agree with the fact that these witnesses may have known that my client was a member of a gang, doesn’t address the issue that I raised... in terms of having a fair trial with these gang allegations coming in prior to the jury making a determination of guilt on the underlying charges.”
The trial court denied the motion. It explained: “[F]rom what I know about the case, and I just gleaned from the preliminary hearing transcript, and I listened to counsel provide me with what some of the evidence is they expect to come in, and I’m relying on [People v. Hernandez (2004) 33 Cal.4th 1040], it just appears that by definition, and by the evidence that’s going to come in, that the gang evidence is intertwined with the charged offense, particularly the carjacking offense. [¶] From what the People indicated that they expect, it also ties into identity, and also, I’m assuming the motive and intent of the individuals who committed the offense. And it would be impractical to ask them to change the wording of identification or change the wording or caution the witnesses towards the words they used if, in fact, they made reference to gang monikers or gang affiliation. [¶] So I understand the defense positions, but here I just think it’s tied into the People’s case in chief. So I’m going to deny the motion to bifurcate the gang allegation. However, that’s being done with the understanding to address the issues that all defense counsel raised that will allow voir dire on that issue to our p[ro]spective panel. Also, the court will entertain a limiting instruction when we begin that phase of our trial as it relates to how the jury can consider that gang evidence.” (Italics added.)
2. Discussion
People v. Hernandez, supra, 33 Cal.4th 1040 (Hernandez) sets forth the standards to be used when the trial court is asked to bifurcate trial of a gang enhancement. The trial court has the discretion to grant that request but because “the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense[,]... less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Id. at p. 1048.) Hernandez explained that “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like–can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.) But “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation.... [¶]... [T]he trial court’s discretion to deny bifurcation of a charged gang enhancement is... broader than its discretion to admit gang evidence when the gang enhancement is not charged. [Citation.]” (Id. at p. 1050, italics added.) In moving for bifurcation, the defense must “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]” (Id. at p. 1051.)
In this case, the trial court did grant defendant Henderson’s motion to bifurcate trial on the prior conviction alleged against him.
Here, the trial court did not abuse its discretion in denying bifurcation. The propriety of the trial court’s ruling is judged by the record as it existed when the bifurcation motion was made. (See People v. Catlin (2001) 26 Cal.4th 81, 110 [appellate review of denial of pretrial motion to sever counts].) As we now explain, that record indicates no abuse of discretion.
The transcript of the preliminary hearing (which the prosecutor and the court referred to in discussing the motion) indicated that both victims (Jones and Williams) had failed to appear on the day of the hearing in violation of a court order to return. Consequently, the hearing proceeded with the testimony of the investigating officer (Detective Michael Fairchild) and the gang expert (Officer Pearce). Detective Fairchild testified to the two victims’ statements about the commission of the crimes and their subsequent photo identifications of the three defendants. Officer Pearce testified as an expert on the Grape Street Crips to establish the predicates of the section 186.22 enhancement allegations. In so doing, Officer Pearce explained that one of the primary crimes committed by the Grape Street Crips is witness intimidation.
When the bifurcation motion was argued, the prosecutor represented, without any contradiction from the three defense attorneys, that discovery provided to the defense indicated that one of the victims had told the police that he believed all three defendants were members of the Grape Street Crips. Two of the defense counsel essentially conceded the accuracy of this representation but urged only that it was an insufficient basis to deny bifurcation. However, the prosecutor also explained that evidence of defendants’ gang involvement would be relevant to explain why “witnesses [e.g., Williams and Jones who had failed to appear as ordered at the preliminary hearing] testify the way they do or are reluctant.” Hence, the record presented to the trial court established that gang evidence would have a relevancy separate and independent from proving the section 186.22 enhancement. That is, the evidence could identify defendants as the perpetrators of the three crimes and explain any reluctance by the victims to testify. Because the evidence would be admissible even had the gang enhancement not been alleged, “any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (People v. Hernandez, supra, 33 Cal.4th at p. 1050.)
Defendants’ claim that the trial “court failed to consider what prejudicial effect the evidence might have” is incorrect. The trial court stated it “underst[oo]d the defense positions [of undue prejudice]” and that to address that concern, the jury would be instructed about the limited purposes to which it could put the gang evidence. The trial court therefore did not abuse its discretion in denying the bifurcation motion.
Defendants next urge that, assuming the trial court did not abuse its discretion in denying the motion before trial, the unitary proceeding resulted in a denial of due process. Defendants argue that “the error in failing to bifurcate the gang enhancements resulted in a tsunami of juror opprobrium followed by excessive gang evidence that had little purpose other than to disparage defendants’ characters.” (See People v. Mendoza (2000) 24 Cal.4th 130, 169 [“Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process’”].) We are not persuaded.
To a large extent, defendants’ claim is based on the negative statements about gangs that some prospective jurors made. From this, they urge that they “were conclusively presumed to be gang members before the trial actually began.” We disagree. None of those individuals served on the jury. Further, immediately before trial began, the court read to the jury the pattern instructions explaining, among other things, the presumption of innocence, the prosecutor’s burden of proof, the duty to decide the case solely upon the evidence presented at trial, and the obligation to keep an open mind. The jury is presumed to have followed these instructions. (People v. Adcox, supra, 47 Cal.3d at p. 253.)
Additionally, in hindsight, the decision to deny bifurcation was correct because the gang evidence was relevant for an independent purpose. In their trial testimony, the victims (Jones and Williams) refused to affirm their out-of-court identifications of defendants and did not identify defendants in court. Consequently, the prosecutor relied upon Officer Pearce’s testimony about the intimidation exercised by the Grape Street Crips to explain why the victims did not identify defendants in court and why the jury should credit the victims’ prior identifications made to the police. Hence, even in the absence of the gang enhancement, evidence of defendants’ involvement in the Grape Street Crips would have been admissible at trial.
In any event, defendants’ argument that “the gang evidence itself was highly prejudicial” is not persuasive. This evidence consisted of the testimony of three police officers, certified court records to prove the predicate offenses, and photographs of defendants throwing gang signs, congregating with other gang members, and displaying their gang tattoos. All of this evidence was relevant to the issues raised at trial. Further, the court submitted CALCRIM No. 1403, the pattern instruction about the limited uses of gang evidence. This instruction, which the jury presumptively followed, nullified any potential for prejudice. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
The instruction reads:
That the jurors were unable to reach a verdict on the three weapons charges filed against defendant Henderson strongly suggests that the jury was not prejudiced by the gang evidence but, instead, conscientiously weighed the evidence and applied the law in an unbiased fashion.
Lastly, we reject defendants’ claim that “the prosecutor certainly argued the case as if” defendants were on trial for being gang members. We have carefully read the prosecutor’s closing and rebuttal arguments to the jury. Defendants’ characterization of his arguments is incorrect.
D. Substantial Evidence Supports the Jury’s Findings On the Gang Enhancement
Defendants contend that there is insufficient evidence to sustain the jury’s findings on the gang enhancement. We are not persuaded.
Defendants do not contest that there is substantial evidence to sustain the verdicts that they committed the carjackings and robbery.
Section 186.22, subdivision (b)(1) provides an enhanced sentence for any person who is convicted of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Our role in evaluating a sufficiency of the evidence attack on a gang finding is guided by the deferential substantial evidence standard of review. We must view the record in the light most favorable to the jury’s true finding and draw all inferences from the evidence which support the finding. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
Defendants do not contest the sufficiency of the evidence to establish that the Grape Street Crips is a street gang, their membership in the gang, the gang’s primary activities, or the predicate offenses necessary to sustain a true finding on the enhancement. Instead, they primarily contend that the evidence is insufficient to establish that the carjackings and robbery were committed for the benefit of, at the direction of, or in association with the Grape Street Crips. Secondarily, they contend the evidence is insufficient to establish that they acted with the required specific intent. We disagree.
Defendants were self-identified members of the Grape Street Crips. The police had once stopped two of them together (defendants Henderson and defendant Darin Johnson). The crimes were committed in the heart of the gang’s territory. The three defendants arrived together at the crime scene in a car owned by one of them. Once there, they coordinated their actions with each other to commit crimes (e.g., carjackings) typically associated with their gang. This was more than sufficient to prove that the crimes were committed in association with the gang. We therefore reject defendants’ argument that there was “no evidence of... an association between the crimes and the gang.” (Italics in original.) “Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Instead, all of the evidence (and the reasonable inferences to be drawn therefrom) pointed to the contrary conclusion. Defendants’ claim that their failures to shout gang slogans, throw gang signs, or wear gang colors precludes a finding that the crimes were committed in association with the gang is not persuasive. As Officer Pearce explained, those actions (or any other explicit announcements of gang involvement) did not take place because the crimes took place in gang territory against an individual (Jones) who already knew that the perpetrators were members of the Grape Street Crips. “Thus, the jury could reasonably infer the requisite association from the very fact that defendant[s] committed the charged crimes in association with fellow gang members.” (Ibid.)
We also conclude that there is substantial evidence to support the findings that the crimes were committed for the benefit of the Grape Street Crips. Officer Pearce’s expert testimony explained that the crimes inured to the gang’s benefit in several ways. First, the stolen cell phone and vehicles could be converted into cash that gang members could use to sustain themselves. Second, the gang could use the stolen vehicles to commit other crimes. Third, the crimes were committed in a manner to benefit the gang: to intimidate others and to gain respect. This constitutes more than substantial evidence from which a reasonable jury could find the gang enhancements to be true.
The defense arguments to the contrary are not persuasive. To a large extent, defendants urge that Officer Pearce’s expert opinion was insufficient evidence to sustain the enhancements. They claim that his “testimony that the offenses were gang related is mere speculation on his part.” We disagree. Officer Pearce is a well-seasoned gang expert, having testified more than 25 times in court. He was particularly well versed in the Grape Street Crips because that gang had been his primary assignment for the previous two years. In light of the well-settled principles that expert testimony based upon hypothetical questions rooted in the facts established by the evidence can help to establish a gang enhancement (People v. Gardeley (1996) 14 Cal.4th 605, 617-620; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1197; People v. Morales, supra, 112 Cal.App.4th at p. 1198) and that it is for the jury to determine the weight to be accorded an expert’s testimony (see People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931) we decline defendants’ implied invitation to reweigh Officer Pearce’s testimony. “The reviewing court does not perform the function of reweighing the evidence; instead, the court must draw all inferences in support of the verdict that can reasonably be deduced from the evidence.” (People v. Culver (1973) 10 Cal.3d 542, 548.)
Defendants also urge that the jury’s findings lack evidentiary support because the prosecution did not “present any evidence... that profits from the offenses went to [Grape Street Crips or] that the vehicles taken were used for drive-by shootings or driven around the ‘hood’ with gang members inside.” We disagree. Contrary to what defendants suggest, there is no requirement that the People establish what defendants did with the fruits of their crimes in order to prove the enhancement. In any event, that the victims’ vehicles were found stripped of marketable commodities (stereo equipment and rims) supports Officer Pearce’s opinion that defendants would convert the stolen property into cash.
Lastly, defendants urge that the evidence is insufficient to establish that they acted with the required “specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) They cite Garcia v. Carey (9th. Cir. 2005) 395 F.3d 1099 (Garcia) which held that a finding of a gang enhancement was unsupported because there was no evidence that the defendant committed the crime (robbery) “with the specific purpose of furthering other gang criminal activity” and there was “nothing inherent in the robbery that would indicate that it furthers some other crime.” (Id. at p. 1103, italics added.) Based upon Garcia, defendants argue “that the [specific] intent element requires proof that the criminal acts underlying the current offenses must be committed with the intent of furthering other future criminal activity of the gang” and that such proof is lacking in this case. We rejected an identical argument in People v. Romero (2006) 140 Cal.App.4th 15. We held that the defendant’s specific intent to promote, further and assist in criminal conduct is established if the defendant intended to promote, further and assist the charged offense(s). (Id. at p. 19; accord, People v. Hill (2006) 142 Cal.App.4th 770, 774 [“Garcia... misinterprets California law.... [¶] There is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits”].) Here, substantial evidence of defendants’ specific intent was offered. “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
In sum, we reject defendants’ contention that they “were found guilty of the gang enhancements because they were gang members, and not because the prosecutor proved all of the elements” of the section 186.22, subdivision (b)(1) enhancement beyond a reasonable doubt.
Defendants cite numerous cases to support their contention of insufficient evidence. Some of the cases found substantial evidence to sustain the true finding on the gang enhancement while others found a lack of substantial evidence to sustain the finding. There is no need for us to discuss these cases because whether substantial evidence supports a gang enhancement finding is, by definition, a fact-driven inquiry dependent upon the particular evidence presented in each case. Suffice it to note that we have read and considered the authorities cited by defendants and find none of them applicable to this appeal.
E. Instructional Error
Defendants next attack the wording of five pattern CALCRIM instructions which were submitted without any objection or request to modify. The instructions are CALCRIM Nos. 220 (“Reasonable Doubt”), 222 (“Evidence”), 223 (“Direct and Circumstantial Evidence: Defined”), 226 (“Witnesses”), and 302 (“Evaluating Conflicting Evidence”). Defendants urge that “in each instance, and particularly when viewed in conjunction with each other, the instructions impermissibly lessened the prosecution’s burden of establishing [their] guilt beyond a reasonable doubt” and undermine the principle “that a reasonable doubt may arise from lack of evidence.” Defendants acknowledge that these claims (including variations on them) have consistently been rejected by every Court of Appeal that has considered them but urge us “not to accept those analyses.”
Assuming defendants’ arguments have been preserved for appeal (but see People v. Campos (2007) 156 Cal.App.4th 1228, 1236 [challenges to clarity and completeness of instructions had been forfeited because no request to clarify the instruction’s language had been made in the trial court], we decline their invitation to revisit the analyses set forth at length by other Courts of Appeal. Instead, we adhere to the views expressed in those opinions. (See, e.g., People v. Campos, supra, 156 Cal.App.4th at pp. 1237-1240; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1191; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Anderson (2007) 152 Cal.App.4th 919, 929-936 & 938-940; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; and People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.)
Because we reject all of defendants’ assignments of error, it goes without saying that their claim of cumulative error “fails for want of a valid premise.” (People v. Ibarra, supra, 156 Cal.App.4th at p. 1200.)
F. Sentencing Issues
1. Defendants’ Contention
The trial court sentenced each defendant to consecutive sentences. Defendants now contend that decision was constitutionally infirm because a jury (not the court) must determine the facts which support that sentencing choice. Both the United States and California Supreme Courts have explicitly rejected this contention. (Oregon v. Ice (2009) 555 U.S. ___; People v. Black (2007) 41 Cal.4th 799, 820-823.)
2. The Attorney General’s Contention
The Attorney General contends that defendant Henderson’s abstract of judgment is incorrect and therefore asks us to direct preparation of an amended abstract of judgment. The request, to which defendant Henderson has posed no objection, is well-taken. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188 [the reviewing court has the inherent power to correct clerical errors in the abstract of judgment to conform to the sentence actually imposed].)
At the sentencing hearing, the trial court selected as the principal term the carjacking of Williams, imposed a term of 15 years to life, doubled for defendant’s prior “strike” conviction, plus five years pursuant to section 667, subdivision (a)(1). The minute order of the sentencing hearing reflects those sentencing decisions. However, the abstract of judgment does not reflect the five-year term imposed pursuant to section 667, subdivision (a)(1). We shall direct preparation of an amended abstract of judgment to include that portion of the sentence.
DISPOSITION
The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment for defendant Isaiah Henderson reflecting that on count 5, the trial court imposed a five-year term pursuant to section 667, subdivision (a)(1). In all other respects, the three judgments are affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.
“You may consider evidence of gang activity only for the limited purpose of deciding whether:“The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes/and enhancements charged; OR
“The defendant had a motive to commit the crimes charged.
“You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.
“You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”