Opinion
NOT TO BE PUBLISHED
Contra Costa County, Super. Ct. No. 050417568
Sepulveda, J.
Defendant was convicted by jury trial of first degree murder (Pen. Code, § 187), and of conspiracy to commit assault with force likely to cause bodily injury (§§ 182, subd. (a)(1), 245, subd. (a)(1)). A gang enhancement was found true as to each crime. (§ 186.22, subd. (b)(1).) Defendant admitted a prior prison term allegation (§ 667.5, subd. (b)), and he was sentenced to a total of 36 years to life. He argues on appeal that the trial court erred in denying his motion to quash the jury venire and in permitting the prosecutor to exercise peremptory challenges to remove three African-American prospective jurors. Defendant also contends that his conviction for first degree murder is not supported by substantial evidence and that the gang enhancements likewise are not supported by substantial evidence. He claims that the trial court erred in admitting evidence of (1) his affiliation with a gang, (2) observations of him selling drugs, (3) an impermissibly suggestive photographic lineup, and (4) statements he made to police that were obtained in violation of the Fifth Amendment to the federal Constitution and Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant also argues that the trial court made certain errors in instructing the jury. He asks that this court conduct an in camera review to determine whether the trial court abused its discretion in declining to unseal an entire search warrant. Finally, defendant argues that the trial court erred in imposing a consecutive 10-year term on a gang enhancement, and that the abstract of judgment incorrectly identifies the basis for imposing a separate one-year term for his prison prior (§ 667.5, subd. (b)). We accept respondent’s concessions as to the consecutive 10-year term on a gang enhancement and as to the identification of the incorrect basis for the separate one-year term, and we order the abstract of judgment to be corrected accordingly. In all other respects, we affirm.
All further statutory references are to the Penal Code unless otherwise noted.
I. Factual and Procedural Background
According to testimony given at trial, on the night of July 24 and in the early morning hours of July 25, 2003, Neal Fiu and four teenage members (Daniel G. (Danny G.), Joey O., Sammy V., and Brandon V.) of the street gang Sons of Death (SOD) were on Fiu’s front porch near the corner of South 15th Street and Maine Avenue in Richmond, drinking alcohol. Defendant had previously been seen at that corner conducting hand-to-hand transactions that appeared to be drug sales, and he had been seen accessing a trash can where Fiu kept drugs at his house. Also present on July 24 were Javier Cervantes (Javi) and Juan Cervantes (Juan), both of whom, along with defendant, appeared to be affiliated with the “15th Street” gang that hung out near the corner of 15th Street and Maine Avenue. Fiu was a longtime member of SOD; defendant was not a member of the gang.
Codefendant Fiu was originally charged in the same action with defendant, but the trial court granted defendant’s motion to sever. Fiu was tried before defendant and was convicted of second degree murder, conspiracy to commit assault with force likely to cause great bodily injury, street terrorism, and assault with force likely to cause great bodily injury. This court affirmed the convictions in a published opinion. (People v. Fiu (2008) 165 Cal.App.4th 360.)
At the time of the incident, the four boys were juveniles. All were charged with murder; all admitted violations of section 245, subdivision (a)(1) (assault with force likely to inflict great bodily injury) in juvenile court in exchange for agreements to testify.
While Fiu, the teenagers, Juan, and Javi were sitting on the front porch, Salvador Espinoza walked past, yelled the name of a gang (EHL, or Easter Hill Locos), and threw a gang sign. Taking this as a challenge, and because they did not want to appear weak, the four teenagers and Fiu approached Espinoza, and they started fighting. Danny G. pulled out a.38-caliber weapon, said “SOD,” and aimed the gun at Espinoza’s face. Fiu pulled down Danny G’s hand, and said to beat up Espinoza instead. Espinoza tried to escape, but Brandon V. caught him and threw him to the ground. The teenagers, Juan, Javi, and Fiu punched and kicked Espinoza in the head and body until he lost consciousness. The group left Espinoza lying on the ground, apparently still alive, and everyone returned to the porch to continue drinking.
After the group returned to the porch, defendant arrived in a car, and Juan went to speak with him. Defendant approached Fiu’s house and started talking to Fiu and the teenagers, who told him that they had beaten up the victim, and that he was lying on the ground nearby. At one point defendant asked whether the victim was “EHL.” Defendant said he wanted to kill Espinoza, but Fiu told him to leave him (Espinoza) alone. Defendant left the house and went with the teenage gang members to where the victim was lying, and kicked and hit Espinoza. Defendant asked for a gun so that he could kill Espinoza, but no one in the group had one to give to him at the time, because Fiu had taken the gun from Danny G. Defendant got a milk crate, put it over Espinoza’s neck, and jumped on it at least twice. Finally, defendant and Joey O. (at defendant’s direction) stabbed Espinoza in the neck. Afterward, defendant and Javi went into the house, and defendant washed his hands with bleach. While in the house, defendant referred to a fight with Easter Hill (which witnesses testified was also known as EHL). Defendant then drove the four young gang members to the home of Danny G.’s mother. She washed the blood from their clothes.
Danny G. testified that although he never personally associated with defendant, he had seen defendant talk with Fiu in the past, and they appeared to be “good friends.” Sammy V. testified that he saw defendant at Fiu’s house almost every time he went there in the summer of 2003. Fiu’s wife also testified that she saw defendant at her and Fiu’s house every day around July 2003.
Over defense objection, based on Miranda, supra, 384 U.S. 436, the prosecution introduced at trial statements about his previous gang affiliation made by defendant to detectives during an interview the morning he was arrested. The statements are more fully summarized below. (Post, § II.H.)
Defendant was charged by information with murder (§ 187—count 1) and conspiracy (§ 182, subd. (a)(1)—count 2) to commit two crimes (the sale of narcotics (Health & Saf. Code, § 11379) and the commission of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The information included two enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)), alleging that defendant personally used a knife and a milk crate in connection with the murder. The information also alleged that defendant committed both charged crimes for the benefit of a street gang (§ 186.22, subd. (b)(1)), and that he had suffered a prison prior (§ 667.5, subd. (b)).
The information alleged a strike prior (§§ 667, 1170.12) and a prior serious felony (§ 667, subd. (a)(1)). The trial court later dismissed those allegations following a motion by the prosecutor.
Defendant was prosecuted for first degree murder under various theories. First, the prosecution contended that defendant was the actual perpetrator of a premeditated and deliberate murder, as supported by the evidence that he stated that he wanted to kill the victim before he participated in the beating death. The prosecutor also argued that defendant was guilty of first degree murder if jurors found that he aided and abetted an assault with force likely to cause great bodily injury, and that first degree murder was a natural and probable consequence of the assault. A third (and related) alternative presented to the jury was that defendant was guilty if jurors found that he joined a conspiracy to assault the victim, and that murder was the natural and probable consequence of the conspiracy.
The prosecutor also briefly argued that defendant was a direct aider and abettor of murder by promoting and encouraging the death of the victim, and the jury was instructed on the definition of aiding and abetting (CALJIC No. 3.01).
A jury found defendant guilty of first degree murder. Jurors also found defendant guilty of conspiracy to commit assault with force likely to cause great bodily injury. (The jury declined to find that defendant conspired to sell narcotics.) The jury also found true the allegations that the offenses were committed for the benefit of a street gang. Jurors found not true each of the allegations that defendant personally used a deadly and dangerous weapon (a knife and a milk crate). Defendant admitted the prior prison term allegation. The trial court sentenced defendant to 25 years to life for murder, with 10 years for the gang enhancement; the midterm of three years for conspiracy, with three additional years for the gang enhancement (both stayed pursuant to section 654 ); and one year for the prison prior, totaling 36 years to life. Defendant timely appealed.
Section 654 provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall... in no case... be punished under more than one provision.”
II.
DISCUSSION
A. Jury Venire
1. Background
Defendant, who is African-American, brought a motion to quash the jury venire, arguing that African-American jurors were underrepresented on the lists of potential jurors in Contra Costa County, and that the jury selection procedure in the county resulted in selection of jurors in a constitutionally impermissible manner. The prosecutor opposed the motion, arguing that defendant’s trial counsel had raised the identical issue, and had it resolved adversely to his clients, on previous occasions. (E.g., People v. Currie (2001) 87 Cal.App.4th 225.) According to stipulated facts submitted to the trial court, about 8.9 percent of Contra Costa’s population over the age of 18 identifies itself as African-American, and about 6.09 or 6.14 percent of residents who appear for felony jury trials identify themselves as African-American. At a hearing on defendant’s motion, the trial court heard testimony from Contra Costa’s jury commissioner, who oversees preparing the master list summoning juries for the county. She testified that felony trials in Contra Costa County are heard in Martinez, and that the percentage of African-Americans who appear for jury duty differs from the percentage of African-Americans eligible to serve. Following the evidentiary hearing, the trial court denied the motion, noting that it was bound by Currie, supra, 87 Cal.App.4th 224.
The county’s entire bench was recused, and the motion was heard by a judge from Alameda County.
The court permitted supplemental briefs to be filed regarding an equal protection argument raised by codefendant Fiu’s counsel at the hearing. The parties submitted supplemental briefs regarding whether there was a valid equal protection claim based on the fact that cases are assigned to different courthouses depending on whether they are misdemeanors or felonies; however, defendant does not raise that equal protection argument on appeal.
Defendant filed a motion to reconsider, requesting that the trial court hold an additional evidentiary hearing to consider Contra Costa County’s hardship policy, which permits potential jurors to be excused from jury service if they can document that it would take more than an hour and a half to travel to Martinez. (Defendant previously had established that it takes nearly two hours to travel by public transportation to the Martinez courthouse from Richmond, where there is a higher proportion of African-Americans compared with other areas of the county.) The parties stipulated that the policy was consistent with California Rules of Court, former rule 860 (now rule 2.1008(d)(2) [undue hardship established where prospective juror would have to travel more than one-and-one-half hours from person’s home to court]). After hearing further testimony and lengthy argument from counsel (primarily directed at an equal protection argument not related to the hardship policy, see fn. 9), the trial court again denied the motion to quash.
2. Analysis
The Sixth Amendment and the California Constitution (art. I, § 16) both guarantee an accused the right to trial by jury drawn from a representative cross-section of the community. (People v. Bell (1989) 49 Cal.3d 502, 525 & fn. 10.) “That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. [Citation.]” (People v. Horton (1995) 11 Cal.4th 1068, 1087-1088.) In challenging a jury venire, the defendant must first establish a prima facie violation of the fair cross-section right. (Bell, supra, at p. 525.) If the defendant succeeds in making this prima facie showing, “the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. [Citation.]” (Horton, supra, at p. 1088.)
“In order to establish a prima facie violation for the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren v. Missouri, supra, 439 U.S. 357 at p. 364; People v. Bell, supra, 49 Cal.3d at p. 525.) “A defendant cannot establish a prima facie case of systematic exclusion of a distinctive group merely by presenting statistical evidence that the group is underrepresented in the jury pool, venire, or panel. Rather, the defendant must show that the underrepresentation ‘is the result of an improper feature of the jury selection process.’ [Citations.]” (People v. Massie (1998) 19 Cal.4th 550, 580, fn. omitted.)
It is undisputed that defendant met the first prong of the three-part test in Duren v. Missouri (1979) 439 U.S. 357, because African-Americans are a distinctive group in the community. (People v. Currie, supra, 87 Cal.App.4th at pp. 232-233.)
In Currie, Division Five of this court found it unnecessary to address the second prong of the test and upheld the constitutionality of Contra Costa’s jury selection system because defendant failed to demonstrate the third prong of the test, that the underrepresentation of African-Americans in the venire was due to the systematic exclusion of this group in the jury-section process. (People v. Currie, supra, 87 Cal.App.4th at p. 235.) Defendant acknowledges this holding, but argues that he presented “new evidence” of the trial court’s official hardship policy, which permits excusals for people who have to travel more than 90 minutes to the courthouse in Martinez. As the parties stipulated below, however, the court’s policy is consistent with California Rules of Court, rule 2.1008(d)(2). Defendant apparently does not challenge the constitutionality of the relevant rule (indeed, he does not even cite it in his opening brief). Instead, he argues that the effect of the hardship policy in Contra Costa County is the systematic exclusion of African-Americans from the jury-selection process. Defendant presented evidence below that a higher percentage of African-Americans live in Richmond than in Martinez, Pittsburg, and Walnut Creek. However, he presented no evidence to the trial court as to how the hardship policy was actually implemented, let alone that African-Americans were granted a disproportionate number of exemptions or excusals. (People v. Breaux (1991) 1 Cal.4th 281, 299.)
The underrepresentation of African-Americans on the jury venires in Contra Costa County has been the subject of several other reported cases. (See, e.g., People v. Simmons (1985) 164 Cal.App.3d 1070; People v. Jones (1984) 151 Cal.App.3d 1029; People v. Black (1984) 160 Cal.App.3d 480; People v. Buford (1982) 132 Cal.App.3d 288.)
Our Supreme Court considered, and rejected, a similar argument regarding Contra Costa’s hardship policies nearly 20 years ago in People v. Bell, supra, 49 Cal.3d 502, and we find no reason to depart from its holding: “[W]e [do not] accept the proposition inherent in defendant’s claim that constitutionally impermissible ‘systematic exclusion’ could be shown by demonstrating that underrepresentation of a cognizable class is the result of applying neutral criteria to grant deferrals on grounds of hardship. Defendant speculates, for example, that the disparity he proved exists because a large percentage of Black residents of Contra Costa County live in Richmond, have lower than average income, and lack ready transportation to the courthouse in Martinez. They qualified for hardship deferrals on that basis. No case holds, however, that disparity that results notwithstanding application of neutral and presumptively constitutionally permissible jury selection criteria is a product of ‘systematic exclusion.’ ” (Id. at p. 530.) “[D]efendant failed to identify any criterion used in the jury selection process that was arguably impermissible or was applied in an impermissible manner, and while he speculated that hardship deferrals were involved he neither demonstrated that they caused the disparity nor established that the basis on which they were granted was constitutionally impermissible.” (Ibid.)
Defendant argues that the trial court erred in not addressing the hardship policy in its final ruling, and in not permitting counsel to argue the new evidence at the end of a lengthy hearing. However, no amount of argument could have compensated for the fact that, as in People v. Bell, supra, 49 Cal.3d 502, defendant failed to present a prima facie case of a constitutional violation. The trial court correctly denied defendant’s motion to quash the jury venire.
B. Jury Not Selected in Racially Discriminatory Manner.
Defendant argues that the trial court erred in excusing three African-American prospective jurors following the prosecutor’s racially discriminatory use of peremptory challenges, thereby depriving him of his right to a fair trial.
1. Applicable law
We set forth the applicable legal principles in People v. Fiu, supra, 165 Cal.App.4th 360, which we quote at length: “A prosecutor may not use peremptory challenges to remove prospective jurors solely because they are members of an identifiable racial group. (Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 265-266, 272.) Peremptory challenges must instead be exercised to eliminate a specific ‘bias relating to the particular case on trial or the parties or witnesses thereto.’ (Wheeler, supra, at p. 276.) To do otherwise violates a criminal defendant’s federal constitutional right to equal protection and his or her state constitutional right to be tried by a jury drawn from a representative cross-section of the community. (See Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 265-266, 272; People v. Griffin (2004) 33 Cal.4th 536, 553; see also U.S. Const., 14th amend.; Cal. Const., art. I, § 16.)
“Batson articulated a three-step process for evaluating a defendant’s claim that the prosecutor’s exercise of peremptory challenges was discriminatory. (Batson, supra, 476 U.S. at p. 96.) First, the defendant must make a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose on the part of the prosecutor. (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) We begin with the presumption that the prosecution exercised the peremptory challenge on a constitutionally permissible basis. (People v. Cleveland (2004) 32 Cal.4th 704, 732.) The defendant bears the burden of producing evidence sufficient to permit the trial court to draw an inference that discrimination has occurred. (Johnson, supra, at p. 169.)
“If the defendant makes a prima facie case of discrimination, the burden of proof shifts to the prosecutor at the second stage to show that the racial exclusion was not predicated on group bias. (Johnson, supra, 545 U.S. at p. 168.) The prosecution must offer a permissible race-neutral basis for exercising a peremptory challenge against that juror. (Ibid.)
“Finally, if a race-neutral explanation is offered, the trial court must determine whether the opponent of the strike has proved purposeful racial discrimination. (Johnson, supra, 545 U.S. at p. 168.) In determining whether the prosecution’s justification for peremptory challenge is pretextual, the proper focus of the trial court is on the subjective genuineness of the race-neutral reasons given, not on the objective reasonableness of those reasons. (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
“We review the trial court’s ruling on the question of purposeful racial discrimination for substantial evidence. (People v. McDermott (2002) 28 Cal.4th 946, 971.) We give deference to the trial court’s ability to distinguish ‘bona fide reasons from sham excuses.’ (People v. Burgener (2003) 29 Cal.4th 833, 864.) The trial court’s conclusions are entitled to deference as long as the court makes ‘a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.’ (Ibid.)” (People v. Fiu, supra, 165 Cal.App.4th at pp. 390-392, fn. omitted.)
There were no more than four or five African-American prospective jurors in the jury pool, and the prosecutor exercised peremptory challenges as to three of them. We address the allegedly discriminatory peremptory challenges separately.
2. Peremptory Challenge of Prospective Juror R.C.
a. Background
Prospective juror R.C. stated during jury selection that he was concerned about having to serve on a long trial, because he had just taken out an equity line of credit to start a residential real estate business and could not afford to spend weeks away from his job. R.C. also stated that it would be difficult to listen to testimony from gang members, but that he would listen. He said he “look[ed] at everyone as being either knowing of the truth about Christ or not knowing about the truth,” and that he found it “bothersome” that some people did not have knowledge of “the truth.” He mentioned that he had prior experience with drug use, and that although he would judge fairly, he could not help but “include that [his drug experience] in anything.” He explained that “I used drugs 12 years ago for like 20 years from 20 to 40, and I know what it’s like to be out there. And I have been a born again Christian for 12 years now, and it hurts me to see and hear about all the problems that are caused by drugs and caused by situations that [the drugs] have put people in, and people have been hurt and families have been devastated because of the violence and the drugs and things.”
R.C. also stated that, in general, he chose not to look at graphic photographs, and that it concerned him that he would have to look at them as a juror. The trial court asked R.C. whether he would look at the pictures despite his preference not to do so and commented: “Some people might tell me: I just won’t do it. I don’t care, Judge.” R.C. answered: “I wouldn’t say I don’t care. But given the fact that I respect the gentleman that—gentlemen that is representing the People, as well as the defendant, and I have heard questions asking people relative to their own feelings, how they would feel, and I wouldn’t—if I had a choice, I wouldn’t choose me. I wouldn’t feel comfortable being a person that would be involved and have somebody’s life on the line, and have to look at them and say that I would truly look at them the way he deserves, or the prosecuting attorney deserves, for me to look at those pictures in order to come with an accurate conclusion based on the evidence.”
The prosecutor challenged R.C. for cause. After the trial court denied the challenge for cause, and after further questioning of R.C. by defense counsel, the prosecutor indicated he intended to peremptorily challenge R.C. Defense counsel made a motion pursuant to Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258, alleging that the peremptory challenge was based upon R.C.’s race. Defense counsel argued that other than the issue of viewing graphic photographs (which R.C. said he would do if so instructed by the trial court), there was nothing else that would indicate that R.C. would not be fair. The trial court concluded that the defense had established a prima facie case that the prosecutor’s peremptory challenge of R.C. was based upon group bias, and it directed the prosecutor to state the reason for his challenge. The prosecutor offered the following reasons for the peremptory challenge: (1) R.C. stated that serving as a juror would be an economic hardship, because he was a realtor and had recently taken out a line of credit to get a new business started, (2) he stated he had been a drug user but was now “quite evangelical in nature,” which might rub other jurors the wrong way if R.C. believed that he knew the “the truth” and others did not, and (3) R.C. had expressed concern about looking at graphic pictures.
In denying defendant’s Batson-Wheeler motion, the trial court stated: “If this were a challenge for cause situation, it would be much more difficult, because the statement about he would look at them [graphic photographs] but not to the extent necessary raises very serious questions about whether he can discharge his duties. But there’s some ambiguity in that. [¶] But this is not a challenge for cause situation. This is a peremptory challenge. And what is really before me is whether the People are exercising this challenge based on race neutral––genuinely entertained race neutral concerns, beliefs, and I do find they are acting in complete good faith in this respect. The concerns that they expressed, that [the prosecutor] expressed, all three of them, provide individually and severally, collectively and severally I should say, provide race neutral reasons for exercising a peremptory challenge.” The prosecutor thereafter exercised a peremptory challenge of R.C.
b. Analysis
“So long as the trial court made a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, then we defer to the trial court’s ability to distinguish bona fide reasons from sham excuses.” (People v. Fiu, supra, 165 Cal.App.4th at p. 394, citing People v. Avila (2006) 38 Cal.4th 491, 541 [Batson states procedure and standard to be used by trial courts when motions challenging peremptory strikes are made].) Substantial evidence supports the trial court’s finding that the prosecutor’s reasons for the peremptory challenge of prospective juror R.C. were genuine.
The trial court focused primarily on R.C.’s reluctance to view gruesome photographs. The court denied the prosecutor’s challenge for cause, stating that R.C.’s answers to questions about graphic photographs did not amount to a basis for cause. However, the prosecutor’s justification for a peremptory challenge “ ‘need not support a challenge for cause.’ ” (People v. Allen (2004) 115 Cal.App.4th 542, 547, citing People v. Arias (1996) 13 Cal.4th 92, 136.) So long as the prosecutor’s reason, even if “ ‘ “trivial,” ’ ” was “ ‘genuine and neutral,’ ” it will suffice. (Allen, supra, at p. 547.) When asked about his ability to view gruesome photographs, R.C. specifically stated that “if I had a choice, I wouldn’t choose me” for the jury. We agree with the trial court’s conclusion that the reason for the peremptory challenge was race neutral.
Defendant points to R.C.’s concern over the effect of the length of the trial on his business and suggests that a comparative analysis of this response with three other prospective jurors’ responses regarding a potential hardship demonstrates that the prosecutor’s reliance on this reason was pretextual. Where a prosecutor offers an explanation for exercising a peremptory challenge to an African-American prospective juror but does not challenge similarly situated White prospective jurors, it is relevant circumstantial evidence of intentional discrimination, because it suggests that the prosecutor’s proffered reason for challenging the African-American prospective juror is pretextual. (Snyder v. Louisiana (2008) 552 U.S. __, 128 S.Ct. 1203, 1211-1212; People v. Lenix (2008) 44 Cal.4th 602, 622; People v. Fiu, supra, 165 Cal.App.4th at p. 395.) If defendant relies on a comparative juror analysis and the record on appeal is adequate to permit the urged comparisons, an appellate court must conduct such an analysis even where, as here, the request is made for the first time on appeal. (People v. Lenix at p. 622.)
Defendant directs us to three other prospective jurors who received postponements after describing to the trial court the potential hardship of serving on a multiweek jury trial. Defendant directs us to nothing in the record to indicate that the prosecutor questioned any of these jurors, let alone that he had the opportunity to peremptorily challenge them. Any comparative analysis is therefore inappropriate as to these three prospective jurors, where we cannot compare the prosecutor’s handling of them with his handling of R.C. (People v. Lenix, supra, 44 Cal.4th at p. 624 [comparative juror evidence most effectively considered where prosecutor can respond to alleged similarities of jurors].) The trial court did not err in denying defendant’s Batson-Wheeler motion as to prospective juror R.C.
We stress that “[t]he reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment.” (People v. Lenix, supra, 44 Cal.4th at p. 624, italics added.) Defendant does not identify responses by other jurors who offered information about their religious beliefs or answered questions about their willingness to view gruesome photographs, the two other reasons given by the prosecutor for his peremptory challenge. We therefore do not conduct a comparative analysis of answers to those types of questions.
3. Peremptory challenge of Prospective Juror M.E.
a. Background
Prospective juror M.E., who worked as a retail clerk for more than 30 years, lived in Richmond, apparently fewer than 15 blocks from the crime scene. She told the trial court that she had recently started taking medication for high blood pressure, and she had not become accustomed to it. She explained, “It doesn’t cloud [my thinking], but it kind of—I can be listening and kind of like I’m going to—I haven’t got used to the medicine. So I kind of, like I want to go to sleep.” When the trial court asked M.E. whether she knew someone named Neal Fiu, she thought the court was referring to a “feud” and responded, “What I thought you meant is the feud they’ve been having about racism on the jury,” an apparent reference to something M.E. had read about in the newspaper.
M.E. expressed concern about whether witnesses might recognize her: “They probably will recognize me because I worked in the five and ten cent store and all these gangs and things, even San Pablo have them, they all kind of intervene in, and they used to hang out in the shopping centers, or things like that.” She also explained: “The only problem I have, they tell me that I should have learned Spanish or, you know their language because when they say something, I don’t know what they be saying. So that might— If they get up here and say something, make a sign and I don’t understand what that is, I might be frightened, you know. Because most people knows me because I worked in the variety store. I call it the five and ten cent store, so I probably done—you know, they probably been in the store. We take money from anybody, you know. Then they say you get tagged. So I think I’ve been tagged, but I don’t worry about it.”
M.E. also described changes in her neighborhood: “After they— After, you know, different—what did he call them? My sister don’t like me to say Hispanic because she think I don’t like Hispanic, but after older African-American moved out the neighborhood, they’re buying their houses. So now we have more Hispanics around us because what we call up on the Hill used to be another call housing called Easter Hill Housing Project. They tore that down. That means they have to find places for people who wanted to stay in the area till they rebuild up there. [¶] So now to me, I said that’s when all the—all the violence looks like it got worser, but it might not. I think it did. It made a big difference in the neighborhood. Plus she don’t like for me to say we have more people that came from Mexico, but that’s true. You can’t get around from saying that, but she doesn’t like when you talk that way.”
When asked how long she had been retired, M.E. responded, “Well, I don’t know if you call it retirement, but I worked—well, I first started—I started in Richmond 1960, downtown Richmond. Then when all the remodeling section, 19—see, that’s what I mean the medicine makes me—I can be talking, and then all of a sudden I forget what I’m saying.” At one point M.E. apologized for starting to cry when she was talking about the murder of her niece, whose killer was never caught.
The prosecutor stated that he intended to exercise a peremptory challenge as to M.E. Defense counsel made a Batson-Wheeler motion, claiming that although M.E. had a tendency to “go on a tangent,” she “didn’t say anything that would lead anyone to believe she couldn’t be a fair and impartial juror.” The trial court disagreed, but it concluded that the defense had established a prima facie case that the prosecutor’s challenge was based upon group bias, because one other African-American had been excused and there were only two others left. The prosecutor explained the reasons for his challenge: M.E. appeared confused about the location of the crime even though she lived fewer than 15 blocks from the area; she was familiar with the Eastern Village projects and had a niece who was murdered in the area; she gave conflicting information about whether she had read about defendant’s trial in the newspaper; she believed that the court was saying “feud” instead of “Fiu” for a few days; she was upset about the reputation Richmond had in the media; she seemed concerned about Hispanics moving into her neighborhood and changing Richmond; she worried about nodding off, not remembering things from one day to the next, being “tagged” by the witnesses, and not being able to understand the language used by Hispanic witnesses; and M.E.’s answers to questions were “quite long, quite rambling, and covered many areas.”
The prosecutor first stated, outside the presence of the jury, that he was challenging M.E. for cause. The trial court denied the challenge, and the parties proceeded to argue the Batson-Wheeler motion.
The trial court denied defendant’s Batson-Wheeler motion, concluding that the prosecutor sincerely believed the reasons provided, and that the reasons were race neutral and given in good faith. The court also concluded that all the reasons provided by the prosecutor had a basis in fact, and that they jointly and severally justified the exercise of the peremptory challenge. The prosecutor thereafter exercised a peremptory challenge of M.E.
b. Analysis
Of all the reasons cited by the prosecutor in challenging M.E., defendant focuses primarily on the reference to where M.E. lived and whether she was affected by her blood pressure medication. As for the first reason, defendant argues that the prosecutor’s reliance on where M.E. lived “strongly suggested group bias based on a stereotyped racial surrogate of residency in a poor Black neighborhood.” United States v. Bishop (9th Cir. 1992) 959 F.2d 820, the case upon which defendant relies, is distinguishable. In Bishop, the prosecutor challenged an African-American man because someone from Compton (the population of which was about 75 percent African-American) would be likely to take the side of “those who are having a tough time, aren’t upper middle class, and [he] probably believes that police in Compton in South Central L.A. pick on black people.” (Id. at p. 822 & fn. 2.) The Ninth Circuit held that the prospective juror’s residence was impermissibly used as a proxy for race. (Id. at pp. 825-826.)
Here, by contrast, none of the prosecutor’s proffered reasons for challenging M.E. drew on any racial stereotypes. Instead, he focused on the fact that M.E. appeared to be confused about the proximity of her residence to the scene of the crime; she had personal familiarity with the Eastern Village projects because her niece was murdered in the area; and she was concerned about Richmond’s reputation and the fact that violence had risen in the city after Hispanics started moving in. Defendant suggests that there was an absence of “any suggestion of concrete bias on [M.E.’s] part.” In fact, M.E. said that her sister thought she did not like Hispanics, that she thought there had been increased violence since Hispanics moved to Richmond, and that she was concerned that witnesses in the case may recognize her or know her family members. In short, the prosecutor’s reasons why he was concerned about M.E. were specific to her answers; he did not rely on stereotypical assumptions about people who live in Richmond. (Cf. United States v. Bishop, supra, 959 F.2d at p. 822 & fn. 2.)
As for whether M.E. was truly affected by her blood pressure medication, defendant claims that there was “no fair indication of incapacity” and that M.E.’s answers were “responsive.” To the contrary, M.E. at one point interrupted herself in the middle of a response and indicated that she was having trouble keeping her train of thought. The trial court did not err in denying defendant’s Batson-Wheeler motion as to prospective juror M.E.
Citing the questioning of a man (identified in the record only as Juror No. 4) who was selected to serve, defendant states in passing that M.E. “was not the only older prospective juror on blood pressure medication here,” presumably implying that a comparative analysis would reveal that the prosecutor’s reliance on M.E.’s use of medication was pretextual. (Snyder v. Louisiana, supra, 128 S.Ct. at pp. 1211-1212.) However, defendant does not in fact conduct a comparative analysis. Moreover, we note that a close review of the record reveals that the juror to whom defendant directs us was also African-American. Any comparative analysis here therefore would be inappropriate. Defendant does not direct us to the prosecutor’s handling of any similarly situated jurors who were of a different race from M.E., which might suggest that his proffered reasons for challenging M.E. were pretextual, and that the true reason for his challenge of M.E. was her race.
4. Peremptory challenge of Prospective Juror F.T.
a. Background
The trial court began its questioning of prospective juror F.T. by asking him to tell the court about the three adult children he listed on his juror voir dire questionnaire. F.T. answered, “Is that necessary?” The trial court asked whether F.T. would rather discuss the matter in private, and F.T. answered, “If it’s necessary.” After a few questions in chambers about F.T.’s children revealed that one was a high school counselor and the other two were in college, the trial court asked why F.T. had been reluctant to disclose this in open court. F.T. then criticized the jury selection process, complaining that “[i]t seems like something is just not quite right with this.” He complained that the procedure was taking too long, that he was tired, that he had lost his patience, that the questions had become repetitive, and that he did not understand why jury selection could not be done “ahead of time.” When asked what he thought about serving on a jury, F.T. replied, “Nothing I’m looking forward to doing.” He later explained, “Don’t get me wrong. I’m not saying what you are doing is wrong. I’m not saying the process, per se, is wrong. I’m saying, the way it is set up, it seems to be wrong. In other words, I can see the process happening, but not now. And the Judge just said that Mr. Johnson has to be part of the [jury selection] process. Okay, that’s something I didn’t know. I didn’t realize that. [¶] But it just seems strange that we have to sit through all of this. And like I said, as you continue going over and over and over things, I can see where people are either getting tired or possibly frustrated.” F.T. stated on his juror questionnaire that he had worked for the postal service for “25” (presumably, years), and he told the trial court that he drove a route in Oakland.
The prosecutor exercised a peremptory challenge as to F.T., and defendant’s attorney made a motion pursuant to Batson-Wheeler. The trial court found that the defense had established a prima facie case that the prosecutor’s peremptory challenge was discriminatory and asked the prosecutor to provide the reason for the challenge. The prosecutor stated: “Number one, he works for the Postal Service. There’s a term that’s used widely in society, called ‘going Postal.’ And we started to see a bit of a glimpse of that with Mr. T[.] here.” The prosecutor said that F.T. did not want to “go along with the system”; that F.T. appeared to be “very frustrated, very outspoken”; that he (the prosecutor) had concerns F.T. would not blend in with other jurors; and that when asked whether he could put aside his frustration, F.T. said “probably” and accused the prosecutor of “picking” when he asked follow-up questions.
Defendant’s counsel objected to the prosecutor’s characterization of F.T.’s answers and argued that the reasons given were not race neutral. The trial court denied the Batson-Wheeler motion. It focused on F.T.’s request to discuss his answers about his children in chambers and said that “all he was doing was blowing off steam. He was—he was just pissed off at the length of time that it was taking to select jurors, and he was assuming this attitude towards the whole process that in [sic] indicates that there’s serious questions about his temperament. [¶] These are the issues that were raised by [the prosecutor]. They seem to me to be—to have nothing to do with race. They simply have to do with his attitude towards this matter, and his temperament and whether he is an appropriate juror, the kind of person who is going to work with 12 other—with 11 other individuals in reaching a decision.” The court also concluded that F.T.’s “demeanor was consistent with [the prosecutor’s] characterization of a person that has an explosive temperament.” The trial court permitted the peremptory challenge of F.T.
b. Analysis
On appeal, defendant questions the trial court’s findings regarding F.T.’s demeanor. As the United States Supreme Court has stressed, “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie ‘ “peculiarly within a trial judge’s province,” ’ [citations], and we have stated that ‘in the absence of exceptional circumstances, we would defer to [the trial court].’ [Citation.]” (Snyder v. Louisiana, supra, 128 S.Ct. at p. 1208.)
Here, there are no exceptional circumstances that would lead us to question the trial court’s findings with respect to F.T.’s demeanor. Defendant opines that “perhaps [F.T.] was having a tired day,” but that “he expressed everything he said honestly, openly, and responsibly.” Defendant overlooks the trial court’s observations that F.T. stated in open court that he would answer questions about his children only if he had to, and that he requested to speak in chambers only because he was “pissed off” and wanted to “blow[] off steam.”
Defendant also argues that the prosecutor relied on “intentional stereotyping,” because he “[p]resumed” that F.T. was biased against “the greater ‘system.’ ” People v. Johnson (1978) 22 Cal.3d 296, upon which defendant relies, is readily distinguishable because there, unlike here, the prosecutor acknowledged that he did not want any African-Americans on the jury, and that he thought it would be difficult for any African-American to be objective about the evidence presented, without specifically questioning them about their views. (Id. at pp. 298-299.) Here, by contrast, F.T. was questioned at length and told the trial court that “something [wa]s just not quite right with” the jury selection process.
Finally, defendant argues that the trial court “failed to offer any specific demeanor findings” as to F.T. Again, this argument is not supported by the record, as the trial court stated that F.T.’s demeanor was “consistent with [the] characterization of a person that has an explosive temperament,” and that the prosecutor’s characterization of F.T. as likely being difficult to work with was “exactly the case.” The trial court did not err in denying defendant’s Batson-Wheeler motion as to prospective juror F.T.
Defendant argues generally that trial courts must determine that valid reasons exist for exercising peremptory challenges, and that those reasons actually prompted the prosecutor to make the challenge. To the extent that he argues that the trial court failed to make sufficient findings in this case to support its ruling, we reject his argument. (Cf. Snyder v. Louisiana, supra, 128 S.Ct. at pp. 1208, 1212 [court did not uphold granting of peremptory challenge where although prosecutor gave two reasons for peremptory challenge, trial court did not state reasons for allowing it, and one reason was not supported by record].)
C. Evidence Supports First Degree Murder Conviction.
1. Sufficient evidence murder was premeditated and deliberate
Defendant was convicted in count one of deliberate and premeditated first degree murder. The jury was correctly instructed that “murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.” (CALJIC No. 8.20.) “ ‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill.... “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.]’ ” (People v. Young (2005) 34 Cal.4th 1149, 1182.) Defendant argues that there was insufficient evidence that he acted with the requisite premeditation and deliberation to support this conviction. “We need not be convinced beyond a reasonable doubt that the murder[] w[as] premeditated. Our inquiry on appeal ‘in light of the whole record [is] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Sanchez (1995) 12 Cal.4th 1, 31-32, original italics, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
Defendant, in challenging the jury’s finding that the murder was deliberate and premeditated, relies on the tripartite test of People v. Anderson (1968) 70 Cal.2d 15, 33-34 (Anderson). “[T]he tripartite test of [Anderson, supra,] 70 Cal.2d 15, [used] in deciding whether the evidence is sufficient to support a finding of premeditation and deliberation [is] based on these three factors: (1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. [Citations.] ‘[T]his court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).’ [Citation.]” (People v. Sanchez, supra, 12 Cal.4th at p. 32.) “[T]he Anderson factors do not establish normative rules, but instead provide guidelines for our analysis.” (Ibid.) “Unreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.) In developing the Anderson guidelines, “the court did not redefine the requirements for proving premeditation and deliberation. [Citation.] The categories of evidence identified in Anderson, moreover, do not represent an exhaustive list of evidence that could sustain a finding of premeditation and deliberation, and the reviewing court need not accord them any particular weight. [Citations.]” (People v. Young, supra, 34 Cal.4th at p. 1183.)
Applying these guidelines, we find substantial evidence to support the jury’s finding that defendant premeditated and deliberated Espinoza’s murder, and that there is evidence to support each of the Anderson categories.
a. Planning
When defendant arrived at the home of Fiu (who associated with defendant frequently during the summer of 2003), he spoke with Juan, Fiu, and the teenage gang members who had beaten Espinoza; said he wanted to kill the victim; went with the teenagers to the victim and kicked him, stabbed him, and placed a milk crate on his neck so that he could jump on it; and directed one of the teenagers to stab the victim. At one point defendant asked for a gun so that he could kill Espinoza, but no one in the group had one to give to him at the time. Based on this evidence, the jury could reasonably “infer that defendant ‘considered the possibility of murder in advance’ and intended to kill. [Citations.]” (People v. Young, supra, 34 Cal.4th at p. 1183.) Planning activity that takes place over a short period of time is sufficient to find premeditation. (People v. Sanchez, supra, 12 Cal.4th at p. 34 [deliberation shown where man struck his father in hallway, then left to get a kitchen knife to carry out plan to kill him].) “ ‘ “ ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’ [Citations.]” ’ [Citation.]” (Young, supra, 34 Cal.4th at p. 1182.) Although defendant’s attack on Espinoza apparently took place shortly after defendant learned of the victim’s whereabouts, defendant’s statement that he wanted to kill Espinoza after conferring with those who had beaten Espinoza previously was sufficient to show reflection on defendant’s part. (Ibid.) There was substantial evidence of planning, the most important prong of the Anderson test. (People v. Alcala (1984) 36 Cal.3d 604, 627.)
We recognize that the jury found not true allegations that defendant personally used a knife and a milk crate; however, there was evidence supporting these allegations. Moreover, the jury may have rejected the enhancement as to the milk crate based on a finding that it was not a “deadly or dangerous weapon” (§ 12022, subd. (b)(1)), not because there was insufficient evidence that defendant personally used it in the attack on the victim.
Defendant refers in passing to his “supposed drunken” participation in the second attack on Espinoza, but does not direct this court to any evidence that he was in fact intoxicated during the attack. The jury was correctly instructed that if the evidence showed that defendant was intoxicated at the time of the crime, it could consider that fact in deciding whether defendant had the required specific intent and/or mental state to commit the charged crimes. (CALJIC No. 4.21.1; § 22, subd. (b).) We see no reason to set aside the jury’s finding that defendant acted with the requisite mental state. (People v. Pickens (1969) 269 Cal.App.2d 844, 852 [jury’s resolution regarding effect of intoxication conclusive on appeal].)
b. Motive
We disagree with defendant’s argument that there was no plausible theory of his motive in killing Espinoza. As the trial court observed in denying defendant’s motion for a new trial, there was substantial evidence that defendant and others trafficked drugs on the corner near Fiu’s house, and that defendant urged the teenaged SOD members to finish off Espinoza after he was told that the victim had entered their territory and identified himself as being from another gang. Witnesses described defendant as belonging to a “15th Street” gang whose members sold drugs in the neighborhood (including on the street corner where the murder took place), and that defendant himself had been seen on that corner selling drugs. When defendant arrived the night of the murder, he first spoke with Juan, who also was linked with the same gang. Although defendant was not a member of SOD, jurors found that he acted for the benefit of, at the direction of, or in association with that gang, with the specific intent to promote, further, or assist gang members’ criminal conduct (§ 186.22, subd. (b)), conduct that gang members testified they undertook because they perceived the victim’s throwing an “EHL” gang sign as a challenge. Defendant asked whether the victim was “EHL” before attacking him. Based on all this evidence, the jury could reasonably conclude that defendant was motivated by a desire to retaliate against a gang member entering rival territory.
c. Manner of killing
As for whether the manner of killing could lead the jury to reasonably infer that the wounds were deliberately calculated to result in death (Anderson, supra, 70 Cal.2d at pp. 33-34), witnesses testified that defendant repeatedly hit and kicked the unconscious victim, who was lying helpless on the ground unable to protect himself, and that defendant directed Joey O. to stab the victim. They also testified that defendant himself stabbed the victim, and that he put a milk crate on the victim’s neck and jumped on the crate. Especially in light of the fact that there was no sign of a struggle by the victim after defendant joined the attack on him (People v. Stewart (2004) 33 Cal.4th 425, 495), the evidence regarding the manner of killing plainly supports a finding of premeditation and deliberation. Substantial evidence supports the jury’s finding of first degree murder.
2. Natural and probable consequences doctrine
The prosecution also proceeded under the theory that defendant aided and abetted Espinoza’s murder because he encouraged or facilitated it. (CALJIC No. 3.01.) The prosecutor additionally argued that defendant was guilty of first degree murder if he aided and abetted an assault with force likely to cause great bodily injury, as first degree murder was a natural and probable consequence of that assault. “The natural and probable consequences doctrine is one theory under which an aider and abettor may be convicted.” (People v. Caesar (2008) 167 Cal.App.4th 1050, 1057.) An aider and abettor “is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.” (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, italics added.) For a defendant to be convicted under the natural and probable consequences doctrine, “the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 262, original italics, fn. omitted; see also People v. Hickles (1997) 56 Cal.App.4th 1183, 1194.) Aider and abettor liability “is a question of legal causation which is independent of any intent that the result in question occurred. [Citation.] Thus, the ultimate factual question is whether the perpetrator’s criminal act, upon which the aider and abettor’s derivative criminal liability is based, was ‘ “reasonably foreseeable” ’ or the probable and natural consequence of a criminal act encouraged or facilitated by the aider and abettor. [Citation.]” (People v. Francisco (1994) 22 Cal.App.4th 1180, 1190 [upholding first degree murder conviction].)
In a related argument, defendant claims that the trial court committed reversible error when it instructed the jury on the natural and probable consequences doctrine. We address the allegedly defective instructions below. (Post, § II.I.1.)
In arguing that his first degree murder conviction cannot be sustained under the natural and probable consequences doctrine, defendant claims that premeditated, first degree murder was not a reasonably foreseeable consequence of the second attack on the victim. (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5; People v. Francisco, supra, 22 Cal.App.4th at p. 1190.) We disagree. Again, jurors heard evidence that when defendant arrived after the first attack on the victim, he spoke with those who had participated in the first beating, went with them to the unconscious victim and began hitting and kicking the victim, and also stabbed him. Defendant also asked for a gun so he could kill the victim. Jurors also heard evidence that defendant directed Joey O. to stab the victim, and that defendant got a milk crate that was placed on the victim’s neck so that defendant could jump on it. This is sufficient evidence from which the jury could conclude that it was reasonably foreseeable that premeditated, first degree murder would be the natural and probable consequence of the second attack on Espinoza, the target or contemplated crime of assault with force likely to create great bodily injury. (People v. Gonzales (2001) 87 Cal.App.4th 1, 9-10 [upholding first degree murder conviction under natural and probable consequences doctrine where defendant who attacked victim with two others also said “ ‘Shoot him, shoot him’ ” to codefendant who had a gun].)
He also argues that there was insufficient evidence of a motive (on his part) to kill the victim, an argument we previously have rejected. Respondent does not address whether there was sufficient evidence to support a first degree murder conviction under the natural and probable consequences doctrine. The Attorney General argues instead that because defendant “expressed an intent to kill the victim, a sufficiency of the evidence analysis need not rely on natural and probable consequences.” Respondent later argues, in connection with defendant’s challenge to related jury instructions (post, § II.I.1.), that defendant’s first degree murder conviction was “not based on the natural and probable consequences doctrine at all,” and that because the jury found that defendant intended to kill the victim, “the question whether murder was a natural and probable consequence of assault is beside the point.” Jurors were asked to determine whether defendant was guilty of murder, and, if so, to determine the degree; the jury verdict form does not indicate the theory of guilt upon which jurors relied. Because jurors were instructed on the natural and probable consequences doctrine, and because the prosecutor highlighted this theory during his closing argument, we cannot say that jurors did not rely on the doctrine in finding defendant guilty of first degree murder.
D. Gang Enhancements Supported by Substantial Evidence.
Gang enhancements were alleged, pursuant to section 186.22, subdivision (b) in count 1 (murder) and in count 2 (conspiracy). The gang enhancement required proof that defendant committed the crimes “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b); see also People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) The statute defines “criminal street gang” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities” the commission of certain specified criminal acts, and that engages through its members in a “pattern of criminal gang activity.” (§ 186.22, subd. (f).) A gang engages in a “ ‘pattern of criminal gang activity’ ” when its members participate in two or more specified criminal offenses (“predicate offenses”) committed within a certain time frame and “on separate occasions, or by two or more persons.” (§ 186.22, subd. (e); People v. Gardeley, supra, 14 Cal.4th at p. 610, fn. 1 [“ ‘predicate offenses’ ” refers to crimes that constitute “ ‘pattern of criminal gang activity’ ”].)
Russ Miller, a deputy probation officer in Contra Costa County, testified as an expert in Southeast Asian gangs in the western part of the county. According to Miller, SOD has approximately 100 to 200 members, and its primary activities include automobile thefts, residential burglaries, firearm offenses, murders, and assaults. Miller also testified that SOD is divided into “generations” by age: the founding members of the gang; the “first generation” members, who are in their late 20s and 30s; “second generation” members; “third generation” members, with whom Miller mostly worked; and “fourth generation” members, who tend to be in junior high and high school. Younger generation SOD members commit crimes to benefit the gang and to impress older members of the gang.
The parties entered into a stipulation that the following crimes and convictions took place: (1) Salali Vongsy’s conviction of two counts of assault with a semiautomatic firearm (§ 245, subd. (b)) (crime occurred on July 4, 2000, conviction on Jan. 13, 2004), (2) Deng Phethlivay’s conviction of assault with a semiautomatic firearm (§ 245, subd. (b)) (crime occurred Aug. 15, 1999, conviction on May 26, 2000), and (3) Vasnu Chanthaouzngsy’s conviction of possession of an assault weapon (§ 12280, subd. (b)) (crime occurred May 17, 2003, conviction on July 22, 2004). The trial court instructed the jury that these three offenses alone could be relied on as the predicate offenses to establish the required pattern of criminal activity.
The trial court took judicial notice of these same crimes in Fiu’s trial, although the defendant in the third crime was identified as Chantha Duoangsy. (People v. Fiu, supra, 165 Cal.App.4th at pp. 387-388.) The charged crimes, the dates on which they occurred, and the conviction dates were otherwise identical. (Ibid.)
“The currently charged offenses may also be considered as predicate offenses (People v. Loeun (1997) 17 Cal.4th 1, 10 ; People v. Gardeley [, supra,] 14 Cal.4th at pp. 624-626), but the trial court did not so instruct the jury.” (People v. Fiu, supra, 165 Cal.App.4th at p. 387, fn. 32.)
Defendant argues that there was insufficient evidence to support the gang enhancement, a claim we review for substantial evidence. (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.)
1. Requisite intent
Defendant first claims that there was insufficient evidence that he committed the charged offenses with the requisite specific intent (§ 186.22, subd. (b)(1)), because he was not a member of SOD and because any motive to assist SOD members was speculative. It is settled that one need not be a current, active member of a gang in order to be convicted of committing a crime “for the benefit of, at the direction of, or in association with” (§ 186.22, subd. (b)(1)) that gang. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [affirming conviction of woman who acted in concert with known gang members]; In re Ramon T. (1997) 57 Cal.App.4th 201, 206.) With respect to whether a defendant acted with the requisite specific intent, “all that is required is a specific intent ‘to promote, further, or assist in any criminal conduct by gang members.’ (§ 186.22, subd. (b)(1).) 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, supra, 145 Cal.App.4th at p. 322.)
Here, there is substantial evidence that defendant acted in concert with known members of the SOD gang in the commission of the murder of Espinoza. (People v. Villalobos, supra, 145 Cal.App.4th at p. 322.) Defendant spoke with SOD member Fiu and the four teenaged SOD members who had previously beaten up Espinoza before he himself attacked the victim. Danny G. testified that the beating did not have anything to do with drugs, that “it was more like a gang thing.” (He also testified that he was “not too sure why” the group started kicking Espinoza again after defendant arrived.) Danny G. testified that defendant asked whether Espinoza was “EHL,” the gang that Espinoza identified before the fight began. The niece of Fiu’s wife testified that when defendant went into the house to wash his hands the night of the murder, he referred to a fight with Easter Hill (which other witnesses testified is also known as EHL). Jurors could conclude based on this evidence that defendant specifically intended to further gang conduct by attacking Espinoza.
2. Primary activities of gang
Defendant next claims that there was insufficient evidence that one of the “primary activities” of SOD (§ 186.22, subd. (f)) was the commission of one or more of the crimes specified in section 186.22, subdivision (e). He bases his argument in part on the following testimony by Miller:
“Q: And what would you say the primary activity of the Sons of Death—what are some of their primary activities?
“A: From dealing with them there’s a lot of auto thefts, residential burglaries, and various firearm offenses. There have been murders, assaults, deadly weapons, things of that nature.
Murder, grand automobile theft, residential burglary, and various firearm offenses are qualifying “primary activities” of a “criminal street gang.” (§ 186.22, subds. (f), (e)(3), (10)-(11), (22)-(23), (31)-(33).) Presumably Miller’s testimony regarding “assaults, deadly weapons” was in reference to assault with a deadly weapon, which also is a qualifying “primary activity.” (§ 186.22, subds. (f), (e)(1).)
“Q: Would it be fair to say those are all primary activities of the gang?
“A: I think so, yes.” (Italics added.)
Defendant claims that Miller’s response to the second question showed an “equivocal opinion” about the primary activities of SOD, and that Miller provided an insufficient basis for his conclusion. To the contrary, Miller testified at length about the fact he had spoken with (1) more than 100 members of southeast Asian gangs, (2) parents of gang members, (3) gang members who do not belong to Southeast Asian gangs, and (4) other community members about gang-related activities. He had previously supervised three people charged in Espinoza’s beating death (Sammy V., Brandon V., and Juan Cervantes) as a probation officer. Based on this experience, Miller testified that SOD members would participate in fights after rival gang members flashed gang signs because “that’s what they are expected to do,” that younger members of the gang commit crimes to benefit the gang and prove themselves, that some SOD members are known to kill when someone “crosses them,” and that his opinion that SOD members engage in violent activities was based in part on allegations that Fiu’s brother was involved in a shooting at the home of a rival gang member, as well as SOD involvement in another shooting in October 2003. Miller’s testimony was sufficient to establish that the “primary activities” (§ 186.22, subd. (f)) of SOD were the commission of one or more of the crimes enumerated in section 186.22, subdivision (e). (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 [sufficient proof of gang’s primary activities may be based on expert testimony]; People v. Gardeley, supra, 14 Cal.4th at p. 620 [expert opinion about primary activity of gang based on conversations with gang members as well as “his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies”]; People v. Augborne (2002) 104 Cal.App.4th 362, 372-373 [expert offered “fact-based specific opinion”].)
The cases upon which defendant relies are distinguishable, because they involved experts who provided far less detail about the bases for their opinions. (In re Alexander L., supra, 149 Cal.App.4th at pp. 611-612 [expert provided no foundation for brief testimony about primary activities of gang]; In re Elodio O. (1997) 56 Cal.App.4th 1175, 1181 [no evidence of primary activity of two gangs involved in enumerated crimes], disapproved on another ground in People v. Sengpadychith, supra, 26 Cal.4th at p. 323; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1004-1005 [expert did not testify about primary activities of gang in question].)
3. Sufficient evidence of pattern of gang activity
Defendant next argues that Chanthaouzngsy’s conviction for possession of an assault weapon (§ 12280, subd. (b)) was insufficient to support the gang enhancement, and that the trial court erred in instructing jurors that they could rely on the conviction, because it is not an enumerated predicate offense. Respondent concedes that the trial court erred, because possession of an assault weapon is not an enumerated predicate offense. (People v. Fiu, supra, 165 Cal.App.4th at p. 388 [possession of an assault weapon not an enumerated predicate offense listed in § 186.22, subd. (e)].) As respondent correctly notes, we concluded that the identical error was harmless in Fiu: “Section 186.22, subdivision (e) requires proof of only two enumerated offenses in order to prove a pattern of criminal gang activity. Disregarding the possession of an assault weapon conviction, the remaining two offenses that [were the subject of the parties’ stipulation], and [the trial court] instructed the jury regarding, provided the two necessary predicate offenses.” (People v. Fiu, supra, 165 Cal.App.4th at p. 388.)
Defendant filed his opening brief before this court decided People v. Fiu. Respondent filed its brief after we decided Fiu, and thus had the benefit of our analysis on this and other issues raised in the Fiu appeal. Defendant noted in his reply brief that the United States Supreme Court was considering whether instructing the jury on a “non-qualifying theory of guilt” warranted per se reversal. The Supreme Court subsequently decided Hedgpeth v. Pulido (2008) __ U.S. __, 129 S.Ct. 530, which held that where a jury was instructed on alternative theories of guilt and may have relied on an invalid one, the error is subject to harmless error review. (Id. at pp. 530-531.) Here, the jury was not instructed on an incorrect theory of liability, only an incorrect predicate offense, which we conclude was harmless error.
Finally, defendant argues that Vongsy’s and Phethlivay’s convictions cannot support the gang enhancement, because they occurred more than three years before the current charged offense. Because this identical issue was raised, and resolved against defendant, in People v. Fiu, we again quote our previous opinion at length: “Section 186.22, subdivision (e) requires that the last of the predicate offenses must have occurred within three years after a prior offense. The two convictions of assault with a semiautomatic firearm arose from crimes occurring on July 4, 2000, and August 15, 1999. The last of the relied-upon predicate offenses thus occurred within three years of the prior offense. Defendant contends that the predicate offenses also had to be within three years of the current offense, citing In re Lincoln J. (1990) 223 Cal.App.3d 322. Defendant’s reliance on Lincoln J. is misplaced. In Lincoln J., the court determined that there was insufficient evidence of a pattern of criminal activity sufficient to demonstrate the existence of a criminal street gang, because no predicate offenses occurred within three years of the charged offense. (Id. at pp. 327-328.) However, in Lincoln J. the charged offense was one of the relied-upon predicate offenses; since there was insufficient evidence of another predicate offense within three years prior to that offense, the court found the evidence of a pattern of criminal activity was lacking. (Ibid.) The evidence here is distinguishable, as there were two offenses other than the charged offenses that were specifically relied upon as the only predicate crimes, and those met the requirement that the last occurred within three years of the former. Under these circumstances, nothing in section 186.22 requires that the predicate offenses have occurred within three years of the charged offense.” (People v. Fiu, supra, 165 Cal.App.4th at p. 388, fns. omitted.)
Defendant’s concern that the lack of evidence that the last of the predicate offenses occurred within three years of the charged offenses results in a failure to demonstrate that the gang was no more than an “inconsistent or on-again-off-again criminal enterprise[]” fails in the present case “as the charged offenses themselves, standing alone, could have provided all of the requisite predicate crimes. As the court explained in People v. Loeun, supra, 17 Cal.4th at p. 10, ‘when the prosecution chooses to establish the requisite “pattern” by evidence of “two or more” predicate offenses committed on a single occasion by “two or more persons,” it can, as here, rely on evidence of the defendant’s commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.’ Here, there were multiple qualifying offenses committed by defendant and multiple other gang members, arising from the charged offenses alone. There was no doubt this was an ongoing criminal enterprise. [¶] Since the remaining offenses, properly instructed on as predicate offenses, met the definition of a pattern of criminal activity, the error in [admitting the stipulation regarding] the possession of an assault weapon prior conviction and in instructing upon it, was harmless.” (People v. Fiu, supra, 165 Cal.App.4th at pp. 388-389.)
E. Evidence of Gang Affiliation.
Background
Defendant moved before trial to exclude evidence of the existence of a “15th Street” gang or that he was affiliated with such a gang. Before Fiu’s trial (and when defendant and Fiu were still to be tried together), the trial court stated that it agreed that evidence of defendant’s association with a 15th Street gang was relevant to show motive. The prosecutor represented, however, that he intended to show that only Juan (and not defendant) was associated with the gang; the court stated it would hold a hearing pursuant to Evidence Code section 402 regarding Juan’s possible involvement with the gang before witnesses were permitted to testify about the association.
During hearings on the issue, the prosecutor indicated that he also wanted to introduce evidence that defendant belonged to the “Cold Gunners” gang. The trial court excluded evidence of defendant’s supposed affiliation with that gang, because the prosecution did not show that that it was related to the murder of Espinoza.
Evidence Code section 402 provides that the trial court shall determine the existence of a preliminary fact where the fact is disputed.
The trial court revisited the issue (after Fiu’s trial) in connection with defendant’s motion for a mistrial based upon the trial court asking prospective jurors in defendant’s case whether they had any knowledge about several gangs, including the “1500 Gang.” Before denying defendant’s motion, the trial court explained that Danny G. and Sammy V. had testified about the “1500 Gang” during Fiu’s trial. The court stated that Danny G. had testified during Fiu’s trial that “ ‘a bunch of drug dealers’ ” known as “ ‘the 1500 Gang’ ” (most of whom were Black) hung out on the corner of 15th Street and Maine Avenue, where the murder took place. Danny G. also testified at Fiu’s trial that Juan was connected with the group, that Juan was the person who “flagged down Ezekiel” the night of the murder, and that there were problems between the “ ‘1500 boys’ ” and EHL (the gang Espinoza identified before he was attacked). The trial court ruled that Danny G. would be permitted in defendant’s trial to testify as to his personal observations (but not opinions) about whether “the 15th Street Boys or gang” existed and whether the group had problems with EHL, and that it would also permit the introduction of evidence of defendant’s tattoos, from which a reasonable inference could be drawn that defendant was associated with the gang in question. All this was relevant to defendant’s alleged motive, the trial court concluded.
During trial, the prosecutor clarified that he was not going to ask Danny G. about conflict between 15th Street and EHL, because Danny G. told him he did not witness such a conflict.
Danny G. testified at trial that defendant said he belonged to “1500 or 15th Street,” and that he saw defendant hang out with “1500 Boys.” According to Danny G., the 1500 Boys were Hispanic and Black. Danny G. also testified that he had seen Juan hang out with people on “15th Street” or “1500” in the first half of 2003, and that it was Juan who first approached defendant when he arrived the night of the murder. Danny G. saw Juan and others in the group involved in hand-to-hand-transactions in the area of the murder scene in the early summer of 2003.
Witnesses who testified about the group generally did not refer to it as a “gang.” However, we accept for purposes of our analysis that the implication of the witnesses’ testimony was that they were referring to a gang.
Sammy V. testified that a group that sang a song about “the 15 and Maine Boys” also hung out on the corner in Richmond where Fiu’s house is located, and that defendant appeared to be a part of the group. Sammy V. also testified that Juan was a member of SOD, and that he also appeared to be friends with members of the 15th Street gang. Javi (Juan’s cousin) likewise appeared to be connected to 15th Street. The niece of Fiu’s wife testified that there was a group of guys that hung out at the corner where Fiu’s house is located, and that Juan and Javi hung around with them.
The trial court admitted pictures of defendant showing two tattoos apparently connected to the group witnesses described: one tattoo on his arm said “15NBK,” and the other tattoo on his arm depicted a tombstone with “R.I.P.” above it and “1500” below it.
2. Analysis
Defendant reasserts on appeal his argument that the trial court erred in admitting evidence of his alleged gang affiliation.
He argues in the alternative that if this court finds that his trial counsel failed to preserve the issue for appeal adequately, he was deprived of his right to effective assistance of counsel. Respondent acknowledges, and we agree, that the issue was not waived. We therefore need not address defendant’s ineffective assistance of counsel argument.
Our Supreme Court has “recognized that admission of evidence of a criminal defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. [Citations.]... [E]vidence of a defendant’s criminal disposition is inadmissible to prove he committed a specific criminal act. (Evid. Code, § 1101.) Moreover, even where gang membership is relevant, because it may have a highly inflammatory impact on the jury trial courts should carefully scrutinize such evidence before admitting it. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 193.) “[I]n 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. [Citation.]” (Ibid.) “[T]he decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court. [Citation.] ‘Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that 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. [Citations.]” [Citation.]’ [Citations.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225, original italics.)
We agree with the trial court that gang evidence was relevant here to show motive. (People v. Williams, supra, 16 Cal.4th at p. 193; People v. Funes (1994) 23 Cal.App.4th 1506, 1519 [trial court properly admitted evidence of gang affiliation and activity to prove intent and motive in murder case].) Defendant claims on appeal that because Danny G. did not testify about any supposed rivalry between the 15th Street gang and EHL, any relevancy as to defendant’s motive to join the attack “disappeared.” To the contrary, the evidence established that defendant, Javi, and Juan all appeared to be involved with the 15th Street gang (whose members, including defendant, were seen selling drugs on the corner where the murder took place), a common association that could provide a possible motive for defendant’s participation in the second attack on Espinoza.
Defendant focuses primarily on the fact that the trial court declined to hold a foundational hearing pursuant to Evidence Code section 402 to determine what Danny G. knew about the 1500 Street gang, which permitted Danny G. to testify about defendant’s affiliation with the gang even though the prosecutor later learned that Danny G. did not know about a rivalry between the group and EHL, as Danny G. apparently testified in Fiu’s trial. Although it is true that Danny G. did not end up testifying about a rivalry between the 15th Street gang and EHL as he did in the Fiu trial, his statements about what he personally observed remained relevant to show defendant’s connection with other people who participated in the beating death. We therefore reject defendant’s argument that the trial court committed reversible error by not sufficiently scrutinizing the evidence before admitting it. (People v. Champion (1995) 9 Cal.4th 879, 922 [because of potentially “ ‘highly inflammatory impact’ ” of juvenile gang evidence on jury, trial courts should “carefully scrutinize” evidence before admitting it].)
The trial court in fact granted in part defendant’s motion, ruling that it would conduct a section 402 hearing in the event that the prosecutor sought opinion testimony about the existence of a 15th Street gang, whether defendant belonged to such a group, or whether EHL had a “problem or a ‘funk’ with 15th Street.” Because the prosecutor did not seek to introduce such opinion evidence, no section 402 hearing was held on the gang evidence.
We likewise reject defendant’s argument that the probative value of the evidence of his association with a 15th Street gang was substantially outweighed by its prejudicial effect on the jury. (Evid. Code, § 352.) The jury heard evidence that defendant, Juan, and Javi were seen associating with a group that hung out on the corner near the murder scene, that drug sales took place there, and that defendant had tattoos apparently related to the gang in question. We disagree that this evidence was as inflammatory as defendant claims, or that it resulted in “tarring and feathering [him as] a gang-banger.” This case is distinguishable from People v. Albarran, supra, 149 Cal.App.4th 214, upon which defendant relies. In Albarran, the prosecution presented lengthy testimony about gang activities that was not relevant to the underlying charges, devoting nearly an entire trial day (out of a six-day trial) to evidence about various crimes that members of the “13 Kings” gang had committed and threats they had made to kill police officers. (Id. at pp. 227-228 & fn. 10.) Here, by contrast, the gang evidence did not consume an undue amount of time, was not particularly inflammatory, and was not based on anything other than the personal observations of the witnesses who testified. Because we conclude that the trial court did not err in admitting this testimony, we need not address whether any errors amounted to a violation of defendant’s due process rights or deprived him of his right to a fair trial. (People v. Champion, supra, 9 Cal.4th at p. 925.)
Defendant argues in passing that the trial court did not provide a limiting instruction, an apparent reference to CALJIC No. 2.50 (evidence of other crimes or criminal street gang activities may not be considered to show that defendant is a person of bad character or is disposed to commit crimes). However, the trial court had no sua sponte duty to instruct on the limited admissibility of past criminal conduct. (People v. Clark (1992) 3 Cal.4th 41, 130-131; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316.)
6. Evidence of Drug Sales.
Defendant was charged (in count two) with conspiracy to sell narcotics. The information alleged that on July 25, 2003 (the date of the murder), defendant unlawfully conspired with Sammy V., Fiu, Brandon V., Danny G., Joey O., and Juan to sell narcotics in violation of Health and Safety Code section 11379. The information further alleged two overt acts in furtherance of the conspiracy: that defendant possessed methamphetamine on July 25, and that he gave methamphetamine to Espinoza.
Defendant sought before trial to exclude opinion evidence of Erica C. (the niece of Fiu’s wife) that defendant sold drugs. The trial court agreed that opinion evidence should be excluded, but it permitted the prosecutor to offer evidence that defendant sold drugs, assuming that he could lay a proper foundation. The prosecutor argued that the evidence was admissible in connection with the conspiracy count pursuant to Evidence Code section 1101, subdivision (b) (prohibition on admission of character evidence does not prohibit admission of evidence of uncharged misconduct where such evidence relevant to establish common design or plan). The trial court stated, “Let’s see if we ever get to that.” It ruled that it would hold a hearing pursuant to Evidence Code section 402 before the prosecutor was allowed to ask Erica C. whether defendant sold drugs. At trial, Erica testified that she did not know whether anyone sold drugs on 15th Street, and she never saw any hand-to-hand transactions.
Defendant argues on appeal that the trial court erred in admitting evidence that defendant sold drugs. However, he points to no particular evidence that should have been excluded, instead referring generally to the improper admission of unspecified “irrelevant and inflammatory evidence.” He argues that the trial court’s “ruling under Evidence Code sections 352 and 1101” was an abuse of discretion; however, he directs us to no such “ruling.” Although the trial court considered the prosecutor’s argument that opinion evidence from Erica C. was admissible pursuant to Evidence Code section 1101, it did not make a final ruling on that issue, and Erica ultimately did not offer opinion testimony regarding drug sales. Defendant objected below to various witnesses’ testimony regarding his drug sales based on lack of foundation, not on the ground that it amounted to improper character evidence.
He argues in the alternative that if this court concludes that his trial counsel failed to preserve the issue for appellate review, defendant received inadequate assistance of counsel. Because we conclude that the trial court did not err in admitting the evidence, we need not consider defendant’s ineffective assistance argument.
Various witnesses testified about drug sales by defendant. When Danny G. was asked whether he saw defendant involved in any hand-to-hand transactions in the first half of 2003, Danny G. testified, “I would see him go up to cars, but I don’t know if he sold anything or not, but yeah.” He testified that he saw defendant make hand-to-hand transactions, and that at least once he saw defendant go to a trash can in Fiu’s yard that contained drugs. Sammy V. likewise testified that he saw defendant with “rocks” in his mouth that appeared to be drugs, that he saw defendant sell drugs in the neighborhood, and that he saw defendant go inside Fiu’s house with drugs and cut up drugs. Fiu’s wife testified, in response to defense counsel’s questioning, that she knew “more or less” that defendant sold marijuana in the neighborhood. The prosecutor also characterized defendant as a drug dealer during his opening statement and closing argument.
Defendant’s main argument is that the prosecution’s “drug deal theory... evaporated during trial,” noting that the jury declined to convict him of conspiracy to sell narcotics, and that the trial court likewise “rejected the drug allegations.” In fact, although the trial court agreed that the evidence did not support the prosecutor’s original theory that the beating was the result of a bad drug deal, the court thought there was “significant evidence” that defendant and other people sold drugs on the street corner where the murder took place, and that Johnson was told that an “outsider” had come into “their territory.” In light of the fact that evidence of defendant’s drug sales were relevant to demonstrate this theory that defendant was protecting his territory, we cannot conclude that the trial court erred in admitting the evidence.
We likewise reject defendant’s suggestion that the probative value of the evidence was substantially outweighed by its prejudicial effect (Evid. Code, § 352). Defendant might have a stronger argument had the prosecutor elicited testimony about drug sales that had no connection to the murder scene. However, witnesses testified about drug sales near where the murder took place: Danny G. testified he saw hand-to-hand transactions “across the street from where the thing happened” and that he once saw defendant go to a trash can where Fiu kept drugs at his house, and Fiu’s wife testified about drug sales in the neighborhood. In light of our conclusion that the trial court did not err in permitting admission of defendant’s drug sales, and the conclusion that the trial court likewise did not err in admitting evidence about the “15th Street” gang (ante, § II.E.), we reject defendant’s argument that the cumulative effect of these errors deprived him of due process. (People v. Alcala (1992) 4 Cal.4th 742, 810 [no reversal for alleged cumulative impact of errors where defendant received fair trial].)
G. No Error to Admit Evidence of Photographic Lineup.
Background
Danny G.’s mother, Maria S., testified that on the night of the murder, Danny G., Sammy V., Joey O., and Brandon V. came to her house with blood on their clothing. They arrived at night when she was lying down to sleep, and she did not want to let them in; they somehow entered through a window. Maria S. saw the four teenagers from a second-story window, along with defendant, who was dropping them off. The teenagers all had blood on their fists and clothes. Maria S. testified that she had not seen defendant before that night, and that she did not see him again in person until she testified at his trial. Maria S. spoke with Danny G. the day after he arrived home with his friends, and he told her that “the [B]lack fellow, the one [Danny G.] brought to my house” stabbed the victim.
Maria S. was not asked any questions at trial about the lighting when she looked out her window, or how long she was able to view defendant. She testified that her son “brought [defendant] and the boys to my house,” and that they were “down there,” meaning outside her house trying to get in. She saw the four teenagers the next morning, but she did not testify that defendant was with them.
Maria S. first testified that she did not recognize defendant in the courtroom; later she identified him as the person she saw in a photograph that police previously had shown to her.
On August 26, 2003, Detective Manjit Sappal interviewed Maria S. (through an interpreter) in connection with the murder investigation. One of his first questions was what happened when Danny G. went to her house the night of the murder. The translator told Sappal that Maria S. told him “[i]t was four of them and her son which totaled five. Brandon, Sammy. Okay.” The translator did not convey that Maria S. had seen an African-American with the teenagers.
After a few more questions, Sappal told the translator, “Tell her I’m gonna show her some photos. And see if she recognizes any of them. And if she does, tell us who they are.” Maria S. was then shown eight photographs depicting seven people (including defendant) who police thought may have been involved in the murder. A videotape of Maria S. viewing the pictures, which was played for the jury, shows that Maria S. first identified “Sammy” (Sammy V.) as being in one of the pictures, and immediately thereafter pointed at a picture of defendant. The interpreter translated that Maria S. said, “They’re saying that a [B]lack male was the one that killed him.” The detective and the interpreter then had the following exchange:
The videotape was not included in the record on appeal but was subsequently transferred to this court for review. (Cal. Rules of Court, rule 8.224(d).)
“THE INTERPRETER: She’s saying that that’s the guy that finished the victim off at the end.
“DETECTIVE: Does she know his name?
“THE INTERPRETER: (After translation) So she’s saying that days later this guy came to pick up her son. And her son said, ‘Hey, mom, don’t say nothing but this is the guy that finished the guy off.’ And she knows that this guy was detained and I guess was released or something like that. That’s what she knows from her son.” Maria S. next identified Brandon V. and Joey O. in pictures shown to her; she also recognized Javi as “the brother of Sammy” and Fiu as a Samoan whose name she did not know. The photograph of defendant was the only picture of an African-American man shown to Maria S., apparently because no other African-American was suspected of being involved in the murder.
Danny G. testified that he told his mother that “a [B]lack guy” stabbed the victim, but that he did not think he ever pointed out defendant to his mother. Maria S. testified before the grand jury that no African-American man came by her house to visit Danny G.
Maria S. also identified a man who police initially thought was involved in the murder; police later concluded that he was not, in fact, involved.
Defendant sought to preclude the introduction of evidence that Maria S. identified his photograph, and to preclude any subsequent in-court identification of defendant, arguing that the photographic identification procedure was unduly suggestive in violation of defendant’s due process rights. The trial court denied defendant’s motion, stating, “This is not a scenario, the typical scenario where a person is talking about someone having committed a crime, and then he or she is shown a photograph, a single photograph and asked to—whether that’s the person who committed the crime. This isn’t that kind of scenario at all. [¶] In fact, what happened here is relatively early on in the interview, and the police, one of the detectives opened up a photo [sic] with a good number of photographs and said that he wanted to show her some photographs to see if she recognizes any of them. She immediately pointed to one of the photographs and said that she recognized that the individual as the person who had come to pick up her son, and that when he did so, her son told her that was the fellow who had finished off the alleged victim in this case, who had killed the alleged victim in this case. It wasn’t again they were simply showing a number of photographs and said, ‘Do you recognize any of them?’ It was as nonsuggestive of any approach that I can think of. The only thing that arguably makes it suggestive is it appears that this is the photograph—of all these photographs, only the one of Mr. Johnson involved an African[-]American, but it isn’t a situation where they were asking us, where she testified an African-American did something to me or was present at some event, and then they pull out a picture of an African-American and say this is him, isn’t it? Or is this him? It wasn’t that scenario at all. It’s a scenario where they said here’s a bunch of photographs. They hadn’t talked about finishing him off or anything at all. They didn’t suggest to her to recognize him in what context or otherwise. [¶] The totality of the evidence is such that I can not find as a matter of law that the identification during the course of the interview was the product of an impermissible suggestion, and, therefore, the People will be allowed to introduce evidence, and will also be allowed to ask her if she can identify Mr. Johnson here in this courtroom, if they want to.”
After Maria S. testified, defendant’s counsel learned “in discovery” that a different officer had spoken with Maria S. before her interview at the police station, that she had told that officer that it was an unidentified “[B]lack male adult” who had stabbed the victim, and that this information was conveyed to Sappal before he interviewed Maria S. Defendant moved for a mistrial, arguing that the trial court’s previous ruling admitting Maria S.’s testimony was based on the fact that she had not mentioned the involvement of an African-American man before she was shown a picture of defendant. The trial court denied the motion, stating, “I didn’t say it was a situation where she didn’t—hadn’t heard from somebody that a [B]lack male may have been involved.... [¶] Here they simply threw out a bunch of photographs on the table, and simply said: You recognize—do you recognize any of these people? Not: Is this the [B]lack man who committed the crime? Do you recognize any of these people?” The court added, “[W]hen I originally ruled on this, I was working on the assumption that she had received some information from her son that a [B]lack man was involved.” No additional evidence regarding the photographic lineup was presented to the jury.
2. Analysis
Defendant reasserts his due process argument on appeal, claiming that the trial court erred in admitting evidence of Maria S.’s pretrial and in-court identification of him. “[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384.) Defendant bore the burden of demonstrating an unreliable identification procedure. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) A court first determines whether the identification procedure at issue was unduly suggestive so as to give rise to a very substantial likelihood of irreparable misidentification. (Ibid.) If the court concludes that the procedure was not unduly suggestive, the inquiry into the due process claim ends. (Id. at p. 412.) Even if the court concludes that the procedure was unduly suggestive, however, evidence of the identification may still be admissible if the court concludes that the identification was reliable under the totality of the circumstances. (Manson v. Brathwaite (1977) 432 U.S. 98, 113-114.) The factors to be considered in determining reliability include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Id. at p. 114; see also People v. Ochoa, supra, 19 Cal.4th at p. 412.) We review de novo the trial court’s ruling that the pretrial identification procedure was not unduly suggestive. (People v. Kennedy, supra, 36 Cal.4th at p. 609.)
Defendant challenges the admission of evidence of both the photographic lineup and Maria S.’s subsequent in-court identification. “While the phrase [‘ “a very substantial likelihood of irreparable misidentification” ’] was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself.” (Neil v. Biggers (1972) 409 U.S. 188, 198 [considering whether identification procedure, although suggestive, was reliable under totality of circumstances]; see also Manson v. Brathwaite, supra, 432 U.S. at p. 106, fn. 9 [Neil v. Biggers adopted reliability of identification as “guiding factor” in admissibility of both pretrial and in-court identifications].) Thus, our Supreme Court has looked to the totality of the circumstances in determining whether “identification testimony” (referring to both pretrial and in-court identification of defendant) is admissible. (People v. Kennedy (2005) 36 Cal.4th 595, 610-611; People v. Cunningham (2001) 25 Cal.4th 926, 962-963, 989 [considering admissibility of “identification evidence” where defendant challenged both pretrial and in-court identification].)
Defendant argues that the photographic lineup was unduly suggestive because Maria S. was shown only one picture of an African-American male. We disagree. “[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggest procedure.” (People v. Ochoa, supra, 19 Cal.4th at p. 413.) “A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.” (People v. Slutts (1968) 259 Cal.App.2d 886, 891 [photographic lineup violated due process where child shown several pictures, but only one had beard drawn on it].) As the trial court found, and as a review of the videotape of the interview with Maria S. confirms, police did not say or do anything to suggest defendant’s involvement in the case before Maria S. was shown a photograph of him.
As respondent stresses, there is nothing inherently unfair about a witness being shown a single photograph. (People v. Ochoa, supra, 19 Cal.4th at p. 413.) Instead, we look to the totality of the circumstances of the identification procedure (Stovall v. Denno (1967) 388 U.S. 293, 302; People v. Bisogni (1971) 4 Cal.3d 582, 587) and conclude that there was nothing inherently suggestive about the manner in which Maria S. was shown photographs. People v. Bisogni, upon which defendant relies in arguing that the totality of the circumstances demonstrated a tainted procedure, is distinguishable. There, three witnesses to a robbery were brought to a police station to try to identify suspects in the crime, then told to look through a hole in the wall at a single female suspect. (Id. at p. 586.) Here, by contrast, Maria S. was not asked whether any of the photographs depicted suspects, only whether she recognized any of them.
We cannot say this identification procedure, under the particular facts of this case, was unduly suggestive, so as to lead to a substantial likelihood of irreparable misidentification. As our high court explained in the context of a single photographic display, the indicators of a witness’s “ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photographic displays may be viewed in general with suspicion [citation], we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails.” (Manson v. Brathwaite, supra, 432 U.S. at p. 116.) “Surely, we cannot say that under all the circumstances of this case there is ‘a very substantial likelihood of irreparable misidentification.’ [Citation.] Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (Ibid., italics added.) Here, the question of whether Maria S. had ever seen defendant before testifying at trial, and whether her previous out-of-court identification of him was reliable, were proper areas of cross-examination at trial. (Simmons v. United States, supra, 390 U.S. at p. 384.) Defendant’s counsel had the opportunity to fully cross-examine Maria S. and the officers who were present when she was shown photographs of defendant and others. We conclude that the trial court did not err in admitting evidence of the photographic line-up, or in permitting Maria S. to identify defendant at trial.
Even assuming arguendo that the identification procedure was impermissibly suggestive so as to lead to a substantial likelihood of misidentification, we conclude that the procedure was reliable under the totality of the circumstances. (Manson v. Brathwaite, supra, 432 U.S. at p. 114; People v. Ochoa, supra, 19 Cal.4th at p. 412.) Although the record does not provide all the detail that one might ideally wish in order to analyze the relevant factors set forth in Manson and Ochoa, the evidence presented at trial was sufficient to demonstrate reliability. As for the opportunity for the witness to view defendant at the time of the crime, Maria S. of course had no such opportunity, because she was not a percipient witness to the murder. Although there is conflicting evidence regarding how many times Maria S. viewed defendant after the murder, she testified that she viewed him on the night of the murder when he drove four young gang members (who all had blood on their fists and clothes) to her home. The jurors also saw Maria S. on videotape describing to Detective Sappal that “days” after she first saw defendant, he came by her house to pick up her son, who pointed out defendant and described him as “ ‘the guy that finished the guy [Espinoza] off.’ ” Although no direct evidence was elicited from Maria S. regarding her degree of attention at either time (and she testified at trial that defendant did not, in fact, visit her house a second time), she presumably would have been attentive while she observed defendant accompanied by her son and their companions in bloody clothes, and while her son days later was pointing defendant out as the person who “finished off” the victim. We recognize that no evidence was presented to the jury regarding the accuracy of any description Maria S. may have given police before she identified defendant’s photograph. Most notable, however, was her degree of certainty regarding her identification of defendant’s photograph. She first identified “Sammy” as being in one of the photographs shown to her, then immediately identified defendant’s photograph and identified him as the person who “finished off” the victim. Finally, the record establishes that only about one month elapsed between the time Maria S. viewed defendant the night of the murder (on July 25, 2003) and her identification of his photograph (on August 26), and a little less than a month between defendant coming to Maria S.’s house days after the murder to pick up her son and the photographic identification. Under the totality of the circumstances, we do not find that Maria S.’s identification of defendant was unreliable.
H. Admission of Defendant’s Statement to Police.
Background
When defendant and Fiu were still to be tried together, defendant moved in limine to suppress statements that he made to a detective on the day he was arrested, alleging that his Fifth Amendment rights were violated under the principles set forth in Miranda, supra, 384 U.S. 436. In response to the motion, the prosecutor presented the following evidence to establish that defendant validly waived his Miranda rights:
A few hours after defendant’s early-morning arrest on August 16, 2003, Detectives Sappal and Greg Gibson spoke with defendant at the Richmond Police Department. Defendant was advised of his Miranda rights. While the detectives were advising him of his rights, defendant repeatedly stated that he was tired, and detectives asked him to “stay with us a little bit” and asked, “Are you high, falling asleep on me or what?” After being advised of his rights, defendant said, “I would like to wait till a lawyer’s present to represent me.” After a few follow-up questions from Detective Gibson, defendant said, “I don’t want to talk about nothing I don’t know nothing about.” The interview ended, and defendant was taken to jail to be booked.
About an hour and a half later, Detective Gibson went to the jail after he was told by a jailer that defendant wished to speak to him. According to a transcript of what transpired in the interview room, defendant first asked for cigarettes and then said that there was “a web or something running across [his] eyes or something.” Detective Gibson told defendant to stand up, and the following exchange then took place:
“[Defendant]: I was talking to my mom, and she said you came, you came and took her car and all this, you feel me?
“Det. Gibson: Yeah, I feel you. [¶] Let me back up here a little bit. Earlier you wouldn’t talk to me. You wanted to talk to an attorney so we stopped. That’s your prerogative, you can do that. You know, anytime you want, you can do that. [¶] You told the jailer up there, I don’t know her name, you told her that you wanted to talk to us again, but you wanted to talk to me, not the other detective that was in here. And I don’t know what that’s all about.
“[Defendant]: I’m not worried about him [Detective Sappal] being present.
“Det. Gibson: Okay.
“[Defendant]: My thing is this, I’m trying to figure out why you all picking on my mama now....”
Defendant proceeded to speak with Detective Gibson.
Detective Sappal acknowledged at the hearing on defendant’s motion to suppress that Officer Gibson did not read defendant his Miranda rights before the second interview, and that defendant started talking before Gibson was able to clarify whether defendant still wanted an attorney as he had previously requested.
Defendant argued that because Detective Gibson did not readvise him of his Miranda rights, and because defendant did not acknowledge that he told a jailer he wished to speak to the detective, the prosecutor failed to demonstrate that he waived his Miranda rights. The trial court tentatively concluded that, under the totality of the circumstances, defendant was readvised of his right to counsel when Detective Gibson returned to speak with him relatively soon after he first spoke with detectives, and that defendant nonetheless chose to talk even though he understood he was free to remain silent. However, in response to requests from both the prosecutor and defendant’s counsel, the trial court stated that it would read the entire transcript of the interview or view a videotape before it made a final ruling, in order to evaluate defendant’s demeanor.
The videotape was not included in the record on appeal.
When the trial court revisited the issue one week later, it indicated that it had read the transcript and viewed the videotape of the interviews. The court concluded that there was insufficient evidence that defendant had reinitiated contact with detectives, and requested that the prosecutor present evidence from the jailer who had reported that defendant wanted to speak with police. The court briefly addressed the issue of whether defendant was readvised of his Miranda rights, stating that detectives “reminded him he didn’t have to talk, and they said it was he that wanted to talk to them, and he didn’t deny that. So you might have, as I say, an implicit admission that Mr. Johnson was the one who wanted the conversation reopened. I’d have to think that one over.”
The court did not address the issue again until several weeks later (when defendant was being tried alone), after the prosecutor claimed that the defense had opened the door to admission of defendant’s statement by referring to it on cross-examination of Detective Sappal. The prosecutor had not at that time presented any evidence from the jailer as the trial court previously had suggested; however, the court ultimately concluded that the prosecutor need not present such evidence. Citing People v. Riel (2000) 22 Cal.4th 1153, the court concluded that because defendant did not deny that he told the jailer he wanted to speak with the detective again, he adopted Detective Gibson’s statement that he had requested his presence. The court concluded that there was therefore sufficient evidence that there was no Miranda violation when Detective Gibson spoke with defendant on August 16. The court made no express finding as to whether defendant knowingly and intelligently waived his Miranda rights before speaking with Gibson, only as to whether defendant reinitiated contact with the detective.
2. Analysis
Defendant reasserts his Miranda objection on appeal. Miranda, supra, 384 U.S. 436, requires that a defendant be advised of his or her rights to silence and counsel prior to any custodial interrogation, in order to ensure that a suspect’s Fifth Amendment rights are not violated, due to what the court felt was the inherently coercive atmosphere created by custodial interrogation. Here, there is no dispute that defendant invoked his right to counsel during his first contact with detectives when he told them, “I would like to wait till a lawyer’s present to represent me,” and that detectives properly terminated that interview after defendant requested representation. The question is whether Detective Gibson’s second contact with defendant violated Miranda.
Although the parties focused below primarily on defendant’s invocation of his right to counsel, defendant notes on appeal that he also invoked his right to silence when he first spoke with detectives, presumably based on his statement, “I don’t want to talk about nothing I don’t know nothing about.” Where a suspect indicates that he wishes to remain silent, the interrogation must cease (Miranda, supra, 384 U.S. at pp. 473-474), and “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” (Michigan v. Mosley (1975) 423 U.S. 96, 104.) Defendant does not claim that police failed to scrupulously honor his request to remain silent, focusing instead on the invocation of his right to counsel and whether police obtained a valid waiver of his Miranda rights after he (defendant) reinitiated contact with police, an issue we address below.
“[A]n accused, such as [defendant], having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards v. Arizona (1981) 451 U.S. 477, 484-485 (Edwards), italics added; see also Minnick v. Mississippi (1990) 498 U.S. 146, 153 [interrogation must cease when counsel is requested, and interrogation may not be reinitiated without counsel present].) “An accused ‘initiates’ such dialogue when he speaks words or engages in conduct that can be ‘fairly said to represent a desire’ on his part ‘to open up a more generalized discussion relating directly or indirectly to the investigation.’ ” (People v. Mickey (1991) 54 Cal.3d 612, 648, quoting Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045 (plur. opn.).) The court focuses on whether the defendant initiated communication with law enforcement; it does not matter who initiated the encounter. (People v. Waidla (2000) 22 Cal.4th 690, 732.) Here, after defendant had asserted his rights to silence and counsel, Detective Gibson recontacted defendant, apparently at defendant’s request. When defendant asked Gibson, “I was talking to my mom, and she said you came, you came and took her car and all this, you feel me?” he clearly “evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation.” (Oregon v. Bradshaw, supra, 462 U.S. at pp. 1045-1046.) Indeed, defendant does not argue to the contrary.
That does not, however, end our inquiry. (Edwards, supra, 541 U.S. at pp. 483-484 [court required to find a valid waiver of right to counsel, once invoked, even if statements made after invocation of right are found to be voluntary].) Where, as here, there is no violation of the Edwards rule, the next inquiry is “whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” (Id. at p. 486, fn. 9; see also Oregon v. Bradshaw, supra, 462 U.S. at p. 1046; People v. Waidla, supra, 22 Cal.4th at p. 728; People v. Mickey, supra, 54 Cal.3d at p. 652.) “[E]ven if a conversation taking place after the accused has ‘expressed his desire to deal with the police only through counsel,’ is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” (Oregon v. Bradshaw, supra, at p. 1044.) The prosecution must demonstrate the validity of a defendant’s waiver by a preponderance of the evidence. (People v. Bradford (1997) 14 Cal.4th 1005, 1034.)
Here, after defendant recontacted police about an hour and a half after having invoked his rights to silence and counsel, he asked Detective Gibson why people were speaking with his mother. Before Gibson answered defendant, he stated, “Earlier you wouldn’t talk to me. You wanted to talk to an attorney so we stopped. That’s your prerogative, you can do that. You know, anytime you want, you can do that. [¶] You told the jailer... that you wanted to talk to us again, but you wanted to talk to me, not the other detectives that was in here. And I don’t know what that’s all about.” Defendant stated that he was not worried about Detective Sappal being present, but he did not clarify whether he no longer wanted an attorney present. Instead, he proceeded to ask again about his mother. Defendant characterizes Detective Gibson’s statements as a “cosmetic readvisal [sic]” of defendant’s Miranda rights, and he argues that his subsequent statements to Gibson were not sufficient to show an implied waiver of those rights. We disagree. In Oregon v. Bradshaw, supra, 462 U.S. 1039, the court concluded that defendant’s question, “ ‘Well, what is going to happen to me now?’ ” showed that he initiated conversation with police about a traffic fatality investigation after having previously asserted his right to counsel. (Id. at pp. 1045-1046.) As to whether police obtained a valid waiver of defendant’s rights to silence and an attorney after defendant initiated further conversation, the court noted that the question turned on the standard inquiry into whether the waiver was knowing and intelligent and found to be so under the totality of the circumstances, a determination that “depends upon ‘ “the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” ’ ” (Id. at p. 1046, quoting North Carolina v. Butler (1979) 441 U.S. 369, 374-375 [waiver of Miranda rights may be implied].)
We may affirm an implied finding of waiver if supported by the record. (In re Dennis M. (1969) 70 Cal.2d 444, 465; People v. Nitschmann (1995) 35 Cal.App.4th 677, 682.) Here, a review of the particular facts and circumstances of the case leads us to conclude that defendant impliedly waived his Miranda rights after he reinitiated contact with police. As to whether he was aware of his rights before waiving them, defendant reinitiated contact with police only about an hour and a half after he was formally read his Miranda rights and invoked them. Although Detective Gibson did not repeat a formal Miranda advisement when he returned to speak with defendant, he certainly reminded defendant of his previously invoked rights when he told him, “Earlier you wouldn’t talk to me. You wanted to talk to an attorney so we stopped. That’s your prerogative, you can do that. You know, anytime you want, you can do that.” (Italics added.) Defendant proceeded to speak to the detective without ever requesting the presence of an attorney, an indication that he intended to waive his right to have one present. (People v. Whitson (1998) 17 Cal.4th 229, 250 [express waiver not required where defendant’s actions make clear waiver is intended].) The transcript of defendant’s interview reveals that his answers were clear and responsive, further support for the conclusion that he was aware of his rights before waiving them. (Id. at p. 249.)
The court in this case apparently was leaning toward finding that defendant impliedly waived his Miranda rights when it first considered defendant’s motion; however, the court made no express findings on this issue when it made its final ruling.
As for defendant’s background, experience, and conduct (North Carolina v. Butler, supra, 441 U.S. at pp. 374-375), the record amply supports a finding that he knowingly, intelligently, and voluntarily waived his Miranda rights. Defendant was on parole when he was arrested, evidence that he had previous experience with law enforcement. The manner in which defendant first invoked his right to counsel (stating, “With them rights, I would like to wait till a lawyer’s present to represent me”) likewise demonstrates that defendant had experience with the legal system, the consequences of speaking with law enforcement, and his right to have a lawyer present to represent him. The fact that defendant spoke to Gibson, after Gibson reminded him of his prior invocation and his continuing right to counsel, without requesting an attorney or indicating he wished to stop the interview showed that he had “ ‘changed his mind without any impropriety on the part of the police.’ ” (Oregon v. Bradshaw, supra, 462 U.S. at p. 1046.) We stress that here, as in People v. Whitson, supra, 17 Cal.4th 229, “the record is devoid of any suggestion that the police resorted to physical or psychological pressure to elicit statements from defendant. To the contrary, defendant’s willingness to speak with [Gibson] is readily apparent from his responses. He was not worn down by improper interrogation tactics, lengthy questioning, or trickery or deceit.” (Id. at pp. 248-249.) The trial court did not err when it denied defendant’s motion to suppress.
Even assuming arguendo that it was error to admit portions of defendant’s statements to Detective Gibson, any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60; People v. Lujan (2001) 92 Cal.App.4th 1389, 1403.) We first emphasize that it was defendant who opened the door to admission of statements he made to police by cross-examining Detective Sappal at trial about information defendant provided to Detective Gibson about his alibi. Although the prosecutor was permitted to ask certain questions about the August 16 interview, the transcript of the interview was not shown to the jury. The transcript contains references to defendant’s parole officer and defendant’s contact with him. The prosecutor was not permitted to ask questions that would elicit responses about defendant’s parole status or his parole officer, after defendant objected to the admission of that evidence. Moreover, defendant did not confess to the crime. To the contrary, the evidence of defendant’s statement that was admitted included testimony that defendant repeatedly denied his involvement in the murder, and that he did not have any problems with “ ‘Easter Hill Mexicans.’ ”
Detective Gibson did not testify at trial because of health reasons. Detective Sappal watched Detective Gibson’s August 16 interview of defendant in an adjacent room via video camera, and he testified at trial about what he observed.
Defendant briefly argues on appeal that he was prejudiced by the admission of his interview with Detective Gibson, because it provided evidence of his former membership in a gang. Defendant’s statements about gang membership were consistent with testimony from other witnesses (which we already have concluded was properly admitted, see ante, § II.E.). In light of the fact that defendant opened the door to the admission of certain of his statements to police, the fact that the statements did not directly implicate him in the murder, and the fact that his statements were consistent with other testimony offered at trial, we conclude that any error in their admission was harmless beyond a reasonable doubt.
Sappal testified that defendant told Gibson, “ ‘I’m not no mother fucking Sureno. I’m not no mother fucking Norteno, man. I’m a young [B]lack man formerly known from a 15th Street gang, man. That’s where I’m from, man. You feel what I’m saying?’ ” Detective Gibson said, “ ‘15th Street hasn’t been beefing with anybody for a long time,’ ” to which defendant responded, “ ‘Them mother fuckers been beefing. They’ve been beefing[.]’ ” Defendant later added, “ ‘But the thing of it is mother fuckers who know this shit ain’t worth it, ain’t beefing no more[.]’ ”
I. No Error in Jury Instructions.
1. Natural and probable consequences doctrine
The jury was given a series of instructions regarding aiding and abetting and conspiracy liability. Defendant characterizes them as “largely bare-bones CALJIC instructions,” claiming that they amounted to “constitutional error” as applied here. The jury was not improperly instructed.
Specifically, jurors were instructed with CALJIC Nos. 3.00 (principals—defined), 3.01 (aiding and abetting—defined), 3.02 (principals—liability for natural and probable consequences), 3.03 (termination of liability of aider and abettor), 6.10.5 (conspiracy and overt act—defined—not pleaded as crime charged), 6.11 (conspiracy—joint responsibility), 6.12 (conspiracy—proof of express agreement not necessary), 6.13 (association alone does not prove membership in conspiracy), 6.14 (acquaintance with all coconspirators not necessary), 6.16 (when conspirators not liable for act or declaration of coconspirator), 6.17 (conspirators not bound by act or declaration of nonconspirator), 6.18 (commission of act in furtherance of a conspiracy does not itself prove membership in conspiracy), 6.19 (joining conspiracy after its formation), 6.20 (withdrawal from conspiracy), 6.21 (liability for acts committed after termination of conspiracy), 6.24 (determination of admissibility of coconspirator’s statements), 2.50.2 (definition of preponderance of the evidence), 3.10 (accomplice—defined), 3.11 (testimony of accomplice must be corroborated), 3.12 (sufficiency of evidence to corroborate an accomplice), 3.13 (one accomplice may not corroborate another), 3.16 (witness accomplice as matter of law—[Danny G., Sammy V., Brandon V., Joey O.]), and 3.18 (testimony of accomplice to be viewed with care and caution).
Although defendant objected generally below that he could not be responsible for the actions of coconspirators, he does not direct us to anywhere in the record where he raised the specific objections that he now raises on appeal. He first claims that the trial court had a sua sponte duty to correct the errors he now identifies. He argues in the alternative that if his trial counsel did not preserve the issue for appellate review, he received ineffective assistance of counsel. Because we address the alleged deficiencies in the jury instructions on the merits and reject defendant’s claims of error, we need not consider his ineffective assistance of counsel claim. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 108.)
Relying on People v. Woods (1992) 8 Cal.App.4th 1570, defendant claims that the jury was not correctly instructed on the natural and probable consequences doctrine (see ante, § II.C.2.). In Woods, two defendants (Barry Dewayne Woods and John Windham) were convicted of first degree murder after they both assaulted two victims to coerce them into telling defendants where someone was located. (Woods at pp. 1577, 1579.) Woods later shot and killed another victim outside a nearby apartment complex, resulting in his conviction of first degree murder. (Ibid.) Windham was prosecuted under the theory that the first degree murder was a reasonably foreseeable consequence of the assaults in which he participated, and that he was therefore liable as an aider and abettor for the first degree murder committed by Woods. (Id. at pp. 1579, 1596.) The court reversed Windham’s conviction, concluding that the trial court erred when, in response to a question from the jury during deliberations, it informed jurors that they could not convict Windham of second degree murder as an aider and abettor if they determined that Woods (the perpetrator of the killing) was guilty of first degree murder. (Id. at pp. 1577, 1579, 1596.) The Woods court explained what determinations the jury first must make in deciding if the natural and probable consequences doctrine applies: “Although the perpetrator and the aider and abettor need not be tried jointly, the jury must determine the crimes and degrees of crimes originally contemplated and committed, if any, by the perpetrator. Next, the jury must decide whether the aider and abettor knew of the perpetrator’s intent to commit the originally contemplated criminal acts and whether the aider and abettor intended to encourage or facilitate the commission of those acts. In other words, the jury must determine if the aider and abettor is liable vicariously for, i.e., guilty of, the crime or crimes originally contemplated. Then the jury must determine whether other crimes and degrees of crimes charged against the aider and abettor were committed by the perpetrator. If so, the jury must determine whether those crimes, although not necessarily contemplated at the outset, were reasonably foreseeable consequences of the original criminal acts encouraged or facilitated by the aider and abettor. [Citations.] In other words, the jury must determine if the aider and abettor is liable vicariously for, i.e., guilty of, other crimes beyond those contemplated originally.” (Id. at p. 1586.) “[I]n determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence. Otherwise..., the jury would be given an unwarranted, all-or-nothing choice for aider and abettor liability.” (Id. at p. 1588.)
With these principles in mind, we turn to the instructions given in this case. The jury was instructed as to the definition of aiding and abetting (CALJIC No. 3.01) and conspiracy liability (CALJIC Nos. 6.10.5, 6.11, 6.12). Jurors also were instructed pursuant to CALJIC No. 3.02, which, as modified in this case, provided: “One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aid [sic–aided] and abetted. [¶] In order to find the defendant guilty under this principle of the crime of murder as charged in Count One, or the lesser included crimes of attempted murder or manslaughter, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of assault with force likely to cause great bodily injury was committed; [¶] 2. That the defendant aided and abetted that crime, that is the crime of assault with force likely to cause great bodily jury [sic–injury]; [¶] 3. That a co-principal in that crime committed the crime of murder, attempted murder or manslaughter, depending on which one is at issue; and [¶] 4. That such crime was a natural and probable consequence of the commission of the crime of assault with force likely to cause great bodily injury. [¶] In determining whether a consequence is a natural—is natural and probable you must apply an objective test based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all the circumstances surrounding the incident. [¶] A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. [¶] ‘Probable’ means likely to happen. [¶] You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target, and that the crime of murder or attempted murder or manslaughter, depending upon which one was at issue, was a natural and probable consequence of the commission of that target crime.” (Italics added.)
After defendant filed his opening brief, our Supreme Court decided People v. Richardson (2008) 43 Cal.4th 959, which “reject[ed] any challenge to the adequacy of CALJIC No. 3.02’s explication of the natural and probable consequences doctrine.” (Id. at p. 1022.) In Richardson, defendant argued that he could not be convicted based on the natural and probable consequences doctrine unless he personally recognized that murder was the natural and probable consequence of the target offenses, and the high court rejected the argument out of hand. (Ibid.; see also People v. Coffman and Marlow, supra, 34 Cal.4th at p. 107 [“CALJIC No. 3.02 correctly instructs the jury on the natural and probable consequences doctrine”].) Although defendant raises different objections in this appeal, we are mindful of the fact that the Supreme Court has repeatedly approved of CALJIC No. 3.02 as an adequate explication of the natural and probable consequences doctrine. We therefore reject defendant’s argument (raised for the first time on appeal) that the trial court was obligated to use CALCRIM No. 402 instead of the standard CALJIC instructions that were employed by the court here.
Jurors also were instructed pursuant to CALJIC No. 6.11, which, as modified in this case, provided: “Each member of a criminal conspiracy is liable for each act, and bound by each declaration of every other member of the conspiracy, if that act or declaration is in furtherance of the object of the conspiracy. [¶] The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. [¶] A member of a conspiracy is not only guilty of the particular crime that, to his or her knowledge, his or her confederates agree to and did commit, but i[s] also liable for the natural and probable consequences of any crime or act of a co-conspirator done to further the object of the conspiracy, even though that crime or act was not intended as part of the agreement or objective, and even though he or she was not present at the time of the commission of that crime or act. [¶] You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes. And if so, whether the crime of murder alleged in Count One or the lesser crimes of attempted murder or that of manslaughter was perpetrated by a co-conspirator or co-conspirators in furtherance of that conspiracy and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy. [¶] Again, in determining whether a consequence is natural and probable, you must apply an objective test based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected would be likely to occur. [¶] The issue is to be decided in light of all of the circumstances surrounding the incident. [¶] A natural consequence is one which is within the normal range of outcomes, and may be reasonably expected to occur if nothing unusual has intervened. [¶] ‘Probable’ means likely to happen.” (Italics added.)
Defendant first objects that the trial court failed to instruct jurors that an aider and abettor or conspirator could be convicted of a lesser offense than the perpetrator. Having reviewed CALJIC Nos. 3.02 and 6.11 as given in this case, we do not agree. The italicized portions of the instructions (above) made clear that jurors could consider lesser offenses under the natural and probable consequences doctrine.
Of more concern is defendant’s second (and related) argument that jurors were not instructed to consider a particular lesser offense. Specifically, they were not told how, or whether, to make a determination of what degree of murder was a reasonably foreseeable consequence of the assault that defendant aided and abetted. They were instructed that they could convict defendant of “murder” under the natural and probable consequences doctrine, but were not specifically told (pursuant to CALJIC Nos. 3.02 or 6.11) that they could choose between first and second degree murder. When read together with the other instructions given to the jury, however, we find that the jurors were adequately informed of their options and duties, and conclude that the trial court was not under a sua sponte duty to clarify the instructions at issue. Jurors were instructed that they could find defendant guilty of murder, as charged in count one. Count one of the information, in turn, alleged that defendant was guilty of murder, without specifying a degree. The jurors were elsewhere instructed, pursuant to CALJIC No. 8.70, that it was their duty to determine the degree of murder. They were provided with the definition of murder “as charged in Count One” (CALJIC No. 8.10) and the definitions of first and second degree murder (CALJIC Nos. 8.20, 8.30, 8.31), and they were told that they must convict defendant of murder in the second degree if they agreed that murder was committed but had reasonable doubt as to whether it was of the first degree (CALJIC No. 8.71). Consistent with those instructions, the jury verdict form indicated that, in the event jurors found defendant guilty of murder, they were to specify whether he was guilty of murder in the first or second degree. Although it might have been helpful to modify CALJIC Nos. 3.02 and 6.11 to make it clear that the jurors were to determine which degree of murder was reasonably foreseeable, we conclude that, when viewed as a whole, the instructions provided sufficient guidance to jurors.
The information alleged that defendant “did unlawfully and with malice aforethought murder Salvador Espinoza, a human being.” (§ 187, subd. (a).)
The instruction provides: “Murder is classified into two degrees. If you should find the defendant guilty of murder, you must determine and state in your verdict whether you find the murder to be of the first or second degree.”
This case is distinguishable from People v. Woods, supra, 8 Cal.App.4th 1570, where jurors were “given an unwarranted, all-or-nothing choice for aider and abettor liability” (id. at p. 1588), and were in fact specifically told by the trial court that they could not find defendant Windham guilty of second degree murder if they found his codefendant guilty of first degree murder (id. at p. 1579). Here, the jurors were not given an all-or-nothing choice, as CALJIC No. 3.02 specifically informed them of alternative crimes (murder, attempted murder, and manslaughter) which could be the natural and probable consequence of the target offense. Moreover, in Woods, it was undisputed that Windham was not the actual perpetrator of first degree murder, and he was prosecuted solely under the natural and probable consequences doctrine. (Woods at p. 1579.) Here, by contrast, as we have already concluded, there was evidence that defendant was guilty of first degree murder as an actual perpetrator (ante, § II.C.1.); the natural and probable consequences doctrine was simply an alternative theory of guilt.
Defendant next argues that jurors were not instructed “that the objective foreseeability determination is (1) to be based upon a reasonable person in the defendant’s position and (2) may [sic] only consider those facts known to the defendant.” (Original italics.) As the authorities upon which defendant relies make clear, the test in determining liability under the natural and probable consequences doctrine is whether a reasonable person under like circumstances would view the crime as reasonably foreseeable, a determination to be made in light of all the circumstances surrounding the incident. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531; People v. Woods, supra, 8 Cal.App.4th at p. 1587.) The jury instructions (CALJIC Nos. 3.02, 6.11) adequately communicated these principles.
Defendant next argues that jurors were not informed that they must base aider and abettor liability on evidence of defendant’s intent to commit a crime, not on the intent of another to do so. To the contrary, the jury was instructed (pursuant to CALJIC No. 3.01) that an aider and abettor must act with the intent of committing, encouraging, or facilitating the commission of the target crime. “Th[is] concept[] fully informed the jury of applicable principles of vicarious liability in this context.” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 107 [CALJIC No. 3.01 adequately informed jury of necessary intent it must find].)
CALJIC No. 6.16 provides that a conspirator is not bound by an act or declaration of a coconspirator where the act or declaration is “neither in furtherance of the object[ive] nor the natural and probable consequence of an attempt to attain that object.” (Italics added.) Defendant argues that the instruction misstates the law on conspirator liability, because it “indicates a conspirator is liable for acts that do not further the common plan, so long as they are the natural results; even if this is the rule for aiding and abetting, this is not the law of conspiracy, a critical theory here given the jury’s findings.” However, jurors were elsewhere instructed pursuant to CALJIC No. 6.11 (which defendant identifies as a correct statement of the law) that a member of a conspiracy is liable for the natural and probable consequences of a crime or act done to further the object of the conspiracy. (See People v. Prieto (2003) 30 Cal.4th 226, 250 [CALJIC No. 6.11 properly informed jury it could not find defendant guilty under conspiracy theory if charged crime was not natural and probable consequence of conspiracy; CALJIC No. 6.16 not in contradiction].) We therefore reject defendant’s reading of CALJIC No. 6.16 as permitting liability for crimes not committed in furtherance of the conspiracy.
Finally, defendant claims that the trial court erred in providing optional bracketed language in CALJIC Nos. 3.01 and 6.11 indicating that defendant could be held liable for acts committed outside his presence during the initial attack on the victim. As for CALJIC No. 6.11, jurors were provided with optional language that provided that a “member of a conspiracy is not only guilty of the particular crime that to [his] [or] [her] knowledge [his] [or] [her] confederates agreed to and did commit, but is also liable for the natural and probable consequences of any [crime] or [act] of a co-conspirator done to further the object of the conspiracy, even though that [crime] or [act] was not intended as a part of the agreed upon objective and even though [he][or][she] was not present at the time of the commission of that [crime] or [act].” (Italics added.) As defendant acknowledges, jurors also were instructed that defendant could not be found liable for acts committed before he joined the conspiracy (CALJIC No. 6.19). We therefore conclude there was no possibility that jurors would be led to believe that defendant could be found guilty of conspiracy based on events that took place before he joined the conspiracy, i.e., for acts outside his presence during the initial attack on the victim.
We note that CALJIC No. 6.11 might be made clearer by substituting the italicized portion of the instruction with the following language: “... but is also liable for any other act or crime committed by a co-conspirator, which is the natural and probable consequence of the target offense, and which is committed in furtherance of the conspiracy.” For example, CALCRIM No. 417 provides that a member of a conspiracy is not only liable for the target crime(s), but also “for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy.”
As to CALJIC No. 3.01, the instruction as given provides: “A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. [¶] [A person who aids and abets the [commission][or][attempted commission] of a crime need not be present at the scene of the crime.] [¶] [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.] [¶] [Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.]” (Italics added.) Defendant argues on appeal that the italicized portion of the instruction led jurors to believe they could find defendant guilty based on the natural and probable consequences doctrine for others’ actions in the first attack. He goes so far as to argue that the difference between the aiding and abetting and conspiracy liability instructions amounted to an equal protection violation.
We disagree with defendant’s argument that the jury was led to believe that it could convict defendant based on the first attack on the victim. CALJIC No. 3.01 makes it clear that jurors could convict defendant only if he had knowledge of the perpetrator’s unlawful purpose when he promoted, encouraged, or instigated the commission of the crime—knowledge he could not have had regarding the first attack because it took place before he was present, a point that was undisputed at trial. Neither the prosecution’s case, nor any evidence presented, indicated that defendant aided and abetted the first attack on the victim. The bracketed instructions defendant now objects to were at most unnecessary, because there were no crimes which he aided and abetted but for which he was not present. Because jurors also were informed that not all instructions were necessarily applicable (CALJIC No. 17.31) and that the instructions should be considered as a whole (CALJIC No. 1.01), we disagree with defendant’s argument there was a possibility that jurors convicted defendant based on events that took place before he arrived.
Defendant points to a portion of the prosecutor’s closing argument to support his argument that jurors could convict defendant under the natural and probable consequences doctrine as an aider and abettor based on the first attack. The prosecutor argued, without objection: “Natural and probable consequences is another theory. An aider and abettor is guilty of any other crime also which is a natural and probable consequence of the crime originally contemplated. [¶] So, in that situation, if the Sons of Death were only planning on assaulting Salvador Espinoza with force likely to cause great bodily injury and you find in that drunken frenzied beating that it was natural and probable that they were gonna get carried away and Salvador Espinoza could get killed, and you find that Ezekiel Johnson aided and abetted, he’s liable for the murder in that situation. [¶] He doesn’t get off the hook.” (Italics added.) Because jurors were instructed that the definition of aiding and abetting requires defendant’s aiding of a perpetrator with the “knowledge of the unlawful purpose of the perpetrator” and the “intent or purpose of committing or encouraging or facilitating the commission of the crime,” we disagree with defendant’s argument that jurors were misled on the law.
The prosecutor also argued, again without objection: “The natural and probable consequences, liability for acts of another, applies to conspiracy as well as aider and abettor. [¶] There’s a little bit of a catch on the conspiracy one. It applies to any act of a co-conspirator to further the object of the conspiracy, even though it was not intended as part of the agreed upon objective and the defendant wasn’t even present at the time. But—and here is the catch. He’s not liable for the acts of the others that took place before he joined the conspiracy. [¶] So, if you find, and after all the evidence is in this is the best scenario, if you find that Ezekiel Johnson showed up when Salvador Espinoza was laying [sic] on the ground already, under a conspiracy theory, he’s not liable under the natural and probable consequences for the actions that took place before that. He’s only liable for the actions that took place after he joined the conspiracy. [¶] But you may consider those earlier acts and declarations to determine the nature and the objectives of the conspiracy and the purposes.” (Italics added.) Defendant claims that in the italicized portion of argument the prosecutor (incorrectly) highlighted that, unlike how jurors were being instructed with respect to aiding and abetting liability, they could not find defendant guilty of conspiracy based on actions taken before he arrived at Fiu’s house. We do not agree with this interpretation of the prosecutor’s argument. Instead, we read the argument as highlighting the fact that jurors could consider the first attack on the victim when determining the nature, objective, and purpose of the conspiracy. The trial court did not err in giving the challenged jury instructions.
We also reject defendant’s argument that the natural and probable consequences doctrine violated due process, his right to a fair trial, and the right to a jury determination of guilt beyond a reasonable doubt on all issues. Again, a similar argument was considered, and rejected, in People v. Coffman and Marlow, supra, 34 Cal.4th at pages 107-108. (See also People v. Richardson, supra, 43 Cal.4th at p. 1022.) As defendant acknowledges, the natural and probable consequences doctrine has been approved in this state, and we find no compelling reason to find that the jury was improperly instructed on it in this case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [courts of appeal bound by California Supreme Court decisions].)
2. CALJIC No. 2.21.2
Defendant requested that jurors be instructed with CALJIC No. 2.21.2, which provides that the jury may reject the testimony of a witness found to have testified falsely on a material point, unless jurors believe “the probability of truth favors his or her testimony in other particulars,” and jurors were so instructed. So that he may preserve the issue for federal review, defendant now argues that the instruction deprived him of his due process rights, because it impermissibly permitted jurors to determine credibility issues by a preponderance standard instead of resolving them beyond a reasonable doubt.
The instruction, as modified in this case, provides in full: “A witness who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who you find has willfully testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”
Even assuming that defendant’s argument is not waived due to invited error as respondent argues, it lacks merit. As defendant acknowledges, our Supreme Court has previously considered, and rejected, his argument. (People v. Maury (2003) 30 Cal.4th 342, 428-429.) “When CALJIC No. 2.21.2 is considered in context with CALJIC Nos. 1.01 (consider instructions as a whole) and 2.90 (burden of proof), [which were given in this case, ] ‘the jury was adequately told to apply CALJIC No. 2.21.2 “only as part of the process of determining whether the prosecution had met its fundamental burden of proving [defendant’s] guilt beyond a reasonable doubt.” [Citation.]’ [Citation.]” (Id. at p. 429.) We reject defendant’s due process argument. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
3. CALJIC No. 2.90
Over defendant’s objection that the instruction be modified, jurors were instructed pursuant to CALJIC No. 2.90 that “a defendant in a criminal action is presumed to be innocent until the contrary is proved,” and that reasonable doubt is defined as “not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
Acknowledging that our Supreme Court has held to the contrary but raising the issue to preserve it for federal review, defendant argues that giving the challenged instruction amounted to reversible structural error because its “archaic and incomplete” language amounted to an instruction regarding the clear and convincing standard of proof, as opposed to proof beyond a reasonable doubt. Because our Supreme Court has approved the challenged jury instruction as a correct statement of the government’s burden of proof (People v. Brown (2004) 33 Cal.4th 382, 392), we reject defendant’s argument. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In sum, we reject defendant’s argument that the trial court erred in instructing the jury in this case. We likewise reject defendant’s argument that the cumulative effect of any trial errors deprived him of due process and a fair trial. (People v. Kipp (1998) 18 Cal.4th 349, 383 [issues raised on appeal did not singly or cumulatively establish prejudice requiring reversal of convictions]; People v. Alcala, supra, 4 Cal.4th at p. 810 [review of record revealed defendant received fair trial, all that is required under Constitution].)
J. No Error Not to Unseal Entire Search Warrant.
Defendant filed a motion to compel discovery of several items before trial, including a copy of a sealed search warrant aimed at codefendant Fiu. The trial court conducted an in camera hearing to determine what should be released, and it ordered that a portion of the search warrant and the search warrant affidavit be unsealed. Defendant seeks our review of the sealed transcript of the in camera hearing to determine whether the trial court erred in declining to unseal the entire search warrant and affidavit, and respondent agrees that defendant is entitled to such review. (People v. Hobbs (1994) 7 Cal.4th 948, 975.) Having reviewed the sealed transcript of the discovery hearing, we conclude that the trial court did not err in keeping portions of the search warrant and affidavit sealed.
K. Consecutive Term for Street Gang Enhancement.
The trial court sentenced defendant to a term of 25 years to life for his murder conviction. The court added an additional 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), for a total term of 35 years to life on this count. Defendant argues that the addition of 10 years for the gang enhancement was error. Respondent concedes that the trial court erred, and we agree.
The court stayed the sentence on count 2, pursuant to section 654.
We concluded in People v. Fiu, supra, 165 Cal.App.4th 360, that the same trial court erred when imposing an identical 10-year enhancement on Fiu: “Section 186.22, subdivision (b)(1) provides for an enhancement if a defendant 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 criminal conduct by gang members). If the felony is a violent felony, the enhancement is an additional 10 years in state prison. (§ 186.22, subd. (b)(1)(C).) However, if the defendant is convicted of a felony punishable by life imprisonment, the enhancement provides that the defendant shall not be paroled until a minimum of 15 years have been served. (§ 186.22, subd. (b)(5).) The determinate term enhancement provided for in subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense for which a determinate term is proscribed; if the conviction is of a crime for which an indeterminate term of life in prison is proscribed, the limitation upon parole eligibility provided for in subdivision (b)(5) is applicable. If the parole limitation of subdivision (b)(5) is applicable, the 10-year enhancement is not. (People v. Lopez (2005) 34 Cal.4th 1002, 1007.)” (Fiu, supra, at p. 390, fn. omitted.)
As it did in sentencing Johnson’s codefendant, the trial court erred in imposing a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C). Instead, the court should have imposed a limitation on defendant’s minimum parole eligibility of 15 years, pursuant to section 186.22, subdivision (b)(5). The abstract of judgment should reflect a total term of 26 years to life.
L. Abstract of Judgment Should Be Corrected Regarding Prison Prior.
The trial court imposed a one-year term for defendant’s prison prior (§ 667.5, subd. (b)). However, the abstract of judgment incorrectly states that the one-year term was imposed for the gang enhancement (§ 186.22, subd. (b)(1)). Defendant requests that the clerical error be corrected, and respondent agrees that it should be corrected. We also agree and order that the abstract of judgment be modified to reflect that the one-year term was imposed for the prison prior. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of clerical errors to accurately reflect oral judgment of sentencing court].)
III.
DISPOSITION
The 10-year enhancement imposed on count 1 pursuant to section 186.22, subdivision (b)(1), is ordered stricken. The abstract of judgment shall be modified to reflect a sentence on count 1 of 25 years to life, with a minimum parole eligibility of 15 years. The abstract of judgment also shall be modified to reflect that the one-year term imposed was for defendant’s prison prior (§ 667.5, subd. (b)) and not for the gang enhancement (§ 186.22, subd. (b)(1)). The abstract should reflect a total term of 26 years to life. The trial court is directed to prepare an amended abstract of judgment, and a certified copy of the modified abstract shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.