Opinion
G062388
12-19-2024
THE PEOPLE, Plaintiff and Respondent, v. RICARDO AGUILERA LEAL, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Warren Williams and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 21CF1683, Lance P. Jensen, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Warren Williams and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
Ricardo Aguilera Leal appeals from the judgment entered after a jury found him guilty of attempted murder, assault with a semiautomatic firearm, and possession of a firearm as a felon. The jury found Leal personally discharged a firearm in the commission of the attempted murder. In a bifurcated proceeding, the jury found Leal committed the attempted murder and the assault offenses for the benefit of a criminal street gang.
After Leal waived a jury trial as to the remaining issues, the trial court found, inter alia, at the time Leal committed the three offenses, he was released from custody on bail on his own recognizance. The court also found true prior conviction allegations.
Leal argues insufficient evidence supports the attempted murder conviction and the gang enhancement finding, the trial court committed certain evidentiary and instructional errors, and the trial court failed to secure Leal's knowing and intelligent waiver of his right to a jury trial as to the prior conviction allegations.
We have considered Leal's contentions of error and, for the reasons explained post, conclude each is without merit. We therefore affirm.
Our summary of facts is based on the evidence presented at Leal's trials and is limited to include facts relevant to the issues presented in this appeal.
I. THE TRIAL ON THE SUBSTANTIVE OFFENSES
Alexander M. has known Leal since 2017 when Alexander bought a liquor store in Santa Ana. In May 2021, Leal came to the store daily. He would hang out with friends both inside and outside of the store, sometimes for more than hour. It was common for people to come to the store to hang out and spend long periods of time talking to other customers.
Eric M. hung out in front of the store two or three times a week. On May 30, 2021, a man in a gray jacket, who was later identified as Alvaro H., showed up outside the store and immediately started trying to fight Eric and other regulars at the store that night. Alvaro appeared to be high and drunk; Eric thought Alvaro was "smoked out," meaning he was high on "a lot" of methamphetamine, causing him to be agitated and aggressive. Alvaro was rambling and saying things that did not make sense. Eric told Alvaro to relax.
Leal showed up, told Alvaro to relax, and asked him why he was trying to fight people. Leal told Alvaro to leave but Alvaro refused to leave. Alvaro took off his shirt. Eric did not see a weapon on Alvaro. Leal "spent a good long time talking to [Alvaro] trying to get him to take off." Alvaro repeatedly said he was from Santa Ana and "clearly" said the phrase "Third Street" a couple of times. Leal lifted his shirt in front of Alvaro, displaying his stomach where he had a Lopers criminal street gang tattoo.
Leal went inside the store and grabbed his gun where he had left it; he had put it there for protection even though he was not allowed to have a gun. Leal went back outside and, after continuing to argue with Alvaro for a few minutes, hit him. Leal testified he slapped Alvaro because Alvaro was getting in his face and he could tell Alvaro was "super high."
Alvaro followed Leal into the parking lot in front of the store. Leal pulled out his gun and pulled the slide back, rendering the gun "hot" and ready to fire. Leal raised the gun, taking four steps toward Alvaro while Alvaro quickly backed away from Leal. Alvaro was about 11 feet away from Leal when Leal fired the gun but did not hit Alvaro.
A friend of Leal's, Erick Q., heard a gunshot and went to the parking lot where the shooting happened. Leal told Erick to "pick that shit up;" Erick understood Leal's command as one directing him to pick up the cartridge casing left behind after the shooting. Erick found a shell casing, picked it up, put it in his pocket, and later discarded it in a sewer.
Later that night, police officers arrived at the liquor store and asked Alexander for the video from the surveillance cameras located inside and outside of the store. While the officers were at the store, Leal called Alexander and told him to make sure the police did not get the surveillance camera video.
The surveillance video obtained by the police was played for the jury at trial.
Leal was arrested a few days after the shooting. At trial, Leal stipulated he had suffered a prior felony conviction.
II. THE BIFURCATED TRIAL ON THE GANG ENHANCEMENT
A. Criminal Street Gangs Generally
Police Officer Gerardo Raya testified as the prosecution's gang expert at the bifurcated trial on the gang enhancement. Raya explained a criminal street gang is an ongoing organization of three or more members who collectively engage in a pattern of criminal activity, whose members have a common symbol or name, and whose primary activities are one of the crimes listed in Penal Code section 186.22, subdivision (e). There are three ways to become a gang member, the first of which, as is relevant here, is being "jumped in," where typically three gang members in good standing assault the prospective gang member.
All undesignated code references are to the Penal Code.
Raya testified claiming a gang, and thus pledging allegiance to the gang, can be either verbal or nonverbal and involves the display of gang signs to a rival or a perceived rival or sharing gang affiliation on social media. Flashing a gang tattoo to a rival or perceived rival is a nonverbal way of claiming a gang. There are repercussions if someone tries to claim a gang to which they do not belong.
Gangs typically claim a territory or turf. It is important for a gang to instill fear and otherwise control people within its claimed turf to make community members hesitant to report gang-related crimes.
Raya explained respect is very important and can be considered a form of currency in gang subculture. Gang members want to be the most respected member of the gang and make the gang the most respected gang. Members earn respect by committing violent acts and instilling fear. Guns play a role in a gang obtaining respect, and gang members share guns and other weapons. Raya testified: "This is a violent subculture and guns are used both for offensive purposes and defensive purposes. They could be used to attack a rival or perceived rival of the intended gang. They could be used in robberies or narcotic sales. They could be used in a defensive purpose defending themselves from a rival gang member." A gang member with a gun garners more respect than a gang member without one.
A "hit up" is when one gang member approaches a rival, a perceived rival, or a person in the community and asks for that person's gang affiliation which is essentially an invitation for violence. If the person answers he or she is from a rival gang, typically violence will ensue. If the person does not so respond, the gang member learns it is possible the person is not armed. Raya explained intimidation is a factor in hit ups; by intimidating the person approached, gang members want to make the person feel fear. A gang member's act of lifting the member's shirt to display a gang tattoo to another person could be considered a hit up.
Raya testified a moniker is simply a nickname given to a gang member by the gang. Gang members (and only gang members) also have gang tattoos which convey a member's permanent stamp of allegiance to a certain gang. Most gangs adopt a sports team, sports brand, or clothing brand to wear to show their allegiance to themselves and other gang members, and to show that allegiance to rivals. They often have assigned gang colors which they sometimes wear.
"Backing up" a gang is a form of pledging allegiance and support for that gang. A person backing up a gang would defend an assault on a gang member or would be available to assist a gang member in the assault of a rival.
"Posting up" refers to a gang member being in a certain area and letting it be known that area is within a certain gang's claimed territory or otherwise belongs to a certain criminal street gang. Typically, more than one gang member will post up together. Such conduct instills fear in the community because posting up indicates the possibility of criminal activity in the area. Raya testified a gang member standing in front of a store for hours on end could be a form of posting up.
B. Lopers Criminal Street Gang
Raya testified Lopers has been an active gang in Santa Ana for approximately 30 years and claims territory within certain borders near downtown Santa Ana; the liquor store at which the instant offenses occurred is within Lopers' claimed territory. He stated, as of May 30, 2021, Lopers was an ongoing organization comprised of approximately 50 members. It has a hierarchy within the gang whereby younger members commit lesser violent felonies and the well-established and senior members commit more violent felonies.
He explained it is important for Lopers gang members to control their claimed territory because gang members are "always fighting to gain territory on their rivals." It is important for them to make their presence known to maintain as much claimed territory as possible. This will ensure sufficient space for them to live and commit crimes, including possible narcotic sales.
Lopers commonly use symbols and abbreviations, including LP, LPS, LPR Lopers, and LPRX13, which are incorporated in members' tattoos. Lopers' gang colors are black and gray and members also use sports memorabilia from the Jordan apparel brand as well as Laker hats.
As of May 30, 2021, robbery and assault with a deadly weapon, including a firearm, were some of the Lopers' primary activities. Assault with a firearm and shooting a firearm are typical crimes committed by Lopers members which benefit the gang beyond enhancing its reputation. The gang also benefits when its members commit crimes like attempted murder and assault with a firearm. Such conduct demonstrates the gang's capacity for violence which instills fear into victims, witnesses, and members of the community, and consequently deters calls to the police or cooperation in police investigations. It also communicates to rival gangs that Lopers members are armed and willing to use firearms, thereby instilling fear in "other groups or other gangs that will not enter the gang territory of Lopers."
Lopers' rivals are Logan and Del Hi and their common ally is Alley Boys. Raya testified that many Santa Ana gangs are named after the street where the gang is located, but he was not aware of a gang in Santa Ana called "Third Street." He stated that if someone were to approach a gang member and throw out the name "Third Street," that person could be perceived as a potential rival as newer gangs continue to form "and they all start from somewhere or from someplace."
In response to a hypothetical in which an admitted Lopers member lifts his shirt to show his gang tattoo, continues to argue with the victim, arms himself, continues to argue, and then eight minutes after lifting his shirt, fires a gun at the victim, Raya opined such a scenario would constitute a hit up. Raya testified that such conduct benefits and promotes the gang beyond enhancing its reputation because it serves to control gang territory, targets a perceived rival, and intimidates witnesses from coming forward with information.
C. Leal's Affiliation with Lopers
In 2007, Police Officer Justo Capacete had a couple of interactions with Leal. In May 2007, he stopped a car in which Leal was a passenger. He saw Leal had several tattoos, including a "Lopers" tattoo on his stomach, "LPS" on his left hand, and "Lopers Gang" along his right arm. During that interaction, Leal told Capacete he had been in the Lopers gang since 1995 when he was jumped into the gang. Leal said he "back[s] up" Lopers members and his gang moniker is "Travieso."
Two months later, in July 2007, Capacete again saw Leal when the vehicle Leal was riding in was stopped. Capacete noticed Leal had more tattoos: Leal then also had a "Lopers" tattoo on his left elbow, an "LPS" tattoo on his right elbow, and an "LPS" tattoo on his right leg. Leal reiterated he had been in Lopers since 1995 when he joined at 11 years old. He reasserted his moniker is "Travieso" and that he backs up the Lopers gang. Leal identified Del Hi criminal street gang and the Logan criminal street gang as Lopers' rivals. Leal indicated Lopers' colors are black and white; other contacts have told Capacete Lopers' primary color is black, but also gray. Leal also told Capacete he has family members affiliated with Lopers.
In 2008, Leal was convicted of the robbery of Alejandro A., an offense committed for the benefit of the Lopers criminal street gang.
In April 2018, Santa Ana Police Officer Christian Miranda conducted a field interview of Leal; field interviews are designed to document information from potential gang members. Leal told the officer "I'm Travieso from Lopers." The officer observed a tattoo, "Lopers Gang," on Leal's right forearm. Leal was wearing gray at the time.
On May 30, 2019, Detective Christopher Shynn had contact with Leal in a gambling hall located within Lopers' claimed territory. Leal was wearing a white tank top; Shynn could see some of his tattoos and retrieved from Leal's waistband a loaded semiautomatic gun.
D. Predicate Offenses
In May 2019, Corporal Ivan Vera was assigned to patrol when he assisted in an investigation of the robbery of two individuals at a taco truck. During the investigation, he and other officers arrested Julio Morales and Angel Gonzalez.
Police Detective Michelle Hampton was part of an investigation of an armed carjacking committed in May 2019 by two individuals outside a lounge in Newport Beach. A firearm was found near the stolen car. She and other officers arrested Morales and Gonzalez. Morales had an "LPS" tattoo on his chest.
Morales and Gonzalez admitted and pleaded guilty to committing both of those crimes for the benefit of Lopers. Raya opined both Morales and Gonzalez were active participants and gang members of Lopers, a criminal street gang, at the time these offenses were committed. When asked how the gang gained more than a reputational benefit from the commission of these crimes, Raya explained that with regard to the carjacking, a firearm was pointed at a victim and the stolen vehicle could be used by the gang to drive into rival neighborhoods and also to commit crimes such as robberies. The vehicle could also be shared amongst members of that gang. He added, with regard to the robbery at the taco truck committed a few hours before the carjacking, Morales and Gonzalez obtained money "that could be used to purchase firearms or narcotics and shared among the gang itself."
E. Additional Gang Expert Testimony
During trial, Raya was shown a surveillance video photograph of Leal lifting his shirt and exposing the Lopers tattoo on his stomach to Alvaro. Raya opined Leal's action appeared like a hit up. Raya further opined the fact Leal was not living in Santa Ana, but 20 to 30 minutes away in Anaheim, and yet continued to loiter near the liquor store in the Lopers' claimed territory, shows he was still backing up Lopers at the time of the instant offenses and willing to commit hit ups to benefit Lopers.
Raya opined Leal was an active participant and member of Lopers on May 30, 2021. Raya cited in support of his opinion Leal's display of "gang specific tattoos" by lifting his shirt, being armed with a firearm within Lopers' claimed territory, and his commission of the assault and shooting on Alvaro.
The prosecutor asked Raya whether it would factor into his analysis if during the argument prior to the shooting the victim says, "Third Street." Raya responded in the affirmative and explained: "In the gang subculture, if a gang member is confronted with a rival or even a perceived rival such as a Third Street gang member or someone claiming to be a Third Street gang member, it's within the culture they must retaliate and protect their gang territory."
PROCEDURAL HISTORY
A jury found Leal guilty of attempted murder (§§ 664, subd. (a), 187, subd. (a); count 1); assault with a semiautomatic firearm (§ 245, subd. (b); count 2); and felon in possession of a firearm (§ 29800, subd. (a)(1), count 3). As to count 1, the jury found Leal personally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm in the commission of count 2 (§ 12022.5, subd. (a)). In a bifurcated trial, the jury found it to be true Leal committed counts 1 and 2 for the benefit of the Lopers criminal street gang (§ 186.22, subd. (b)(1)).
In a separate trial, the court found the crime-bail-crime enhancement to be true as to all three counts (§ 12022.1, subd. (b)). The court also found true Leal had suffered a prior serious and violent felony conviction (§§ 667, subds. (a)(1), (d) &(e)(1),1170.12, subds. (b) &(c)(1)) and several aggravating factors were found by the court to be true (see Cal. Rules of Court, rule 4.421(a)(2) &(b)(2)-(3)).
The trial court sentenced Leal to a total prison sentence of 30 years.
DISCUSSION
I. EVIDENTIARY ISSUES
In his opening brief, Leal challenges two of the trial court's evidentiary rulings. First, he argues the trial court erred during the trial on the substantive offenses by allowing the prosecutor to present gang evidence in his case-in-chief in violation of section 1109, subdivision (a). Second, he argues, during the bifurcated trial on the gang enhancement allegation, the trial court erred by prohibiting defense counsel from cross-examining Raya as to his prior testimony on the subject of the Lopers' primary activities, in violation of his right to confront witnesses under the Sixth Amendment to the Constitution of the United States. Leal's challenges to the court's evidentiary rulings are without merit.
A. Standard of Review
"We review the trial court's evidentiary decision for abuse of discretion, disturbing it only if we conclude that the trial '"'"'court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'"'"'" (People v. Parker (2022) 13 Cal.5th 1, 53.) "[W]e review the trial court's ruling, 'not the court's reasoning and, if the ruling was correct on any ground, we affirm.'" (People v. Camacho (2022) 14 Cal.5th 77, 123.)
B. The Trial Court's Admission of Certain Gang Evidence in the Prosecution's Case-in-chief
1. Section 1109
In 1988, the Legislature enacted section 186.22 as part of the California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq; the STEP Act). (People v. Clark (2024) 15 Cal.5th 743, 751-753 (Clark).) Subdivision (b)(1) of section 186.22 has provided for sentence enhancements when a person is convicted of a felony committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."
The Legislature has since made minor amendments to section 186.22, subdivision (b)(1) that are irrelevant to the issues presented in this appeal.
Assembly Bill No. 333 (2021-2022 Reg. Sess.), also known as the STEP Forward Act of 2021, substantially amended the STEP Act, effective January 1, 2022 (Assembly Bill 333). (Clark, supra, 15 Cal.5th at p. 752.) It also added section 1109 to the Penal Code, which provides in relevant part: "(a) If requested by the defense, a case in which a gang enhancement is charged . . . shall be tried in separate phases as follows: [¶] (1) The question of the defendant's guilt of the underlying offense shall be first determined. [¶] (2) If the defendant is found guilty of the underlying offense and there is an allegation of a[] [gang] enhancement . . ., there shall be further proceedings to the trier of fact on the question of the truth of the enhancement."
"In enacting Assembly Bill 333, the Legislature made several findings and declarations related to section 1109's bifurcation provisions. The Legislature declared that '[g]ang enhancement evidence can be unreliable and prejudicial to a jury because it is lumped into evidence of the underlying charges which further perpetuates unfair prejudice in juries and convictions of innocent people.' [Citation.] The Legislature further declared that '[s]tudies suggest that allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions' and '[t]he mere specter of gang enhancements pressures defendants to accept unfavorable plea deals rather than risk a trial filled with prejudicial evidence and a substantially longer sentence.' [Citation.] The Legislature resolved that '[b]ifurcation of trials where gang evidence is alleged can help reduce its harmful and prejudicial impact.'" (People v. Burgos (2024) 16 Cal.5th 1, 10.)
In People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran), the Supreme Court explained section 1109, subdivision (a) does not implement an absolute ban on the admission of gang-related evidence in the prosecution's case-in-chief in the trial of a substantive offense. Instead, the court observed "the stated purpose of section 1109 is to reduce the prejudicial impact of gang evidence and to protect defendants from erroneous conviction." (Tran, supra, 13 Cal.5th at p. 1208.) The court further observed "although the admission of gang evidence may sometimes result in fundamental unfairness [citation], this is not always the case." (Ibid.) Significant to the instant case, the Supreme Court noted: "We have held that gang evidence, even if not admitted to prove a gang enhancement, may still be relevant and admissible to prove other facts related to a crime." (Ibid.)
2. The Trial Court's Admission of the Gang Evidence in the Prosecution's Case-in-chief Did Not Violate Section 1109, subdivision (a)
Leal argues because the trial on the gang enhancement allegation was bifurcated, "evidence of gang membership, tattoos, or gang territory had no relevance to the guilt phase of the trial." We disagree.
Before trial on the substantive offenses, the trial court tentatively granted the prosecution's motion to present limited gang evidence. The court concluded Assembly Bill 333 did not impose a wholesale exclusion of all gang-related evidence in the prosecution's case-in-chief in the trial of the substantive offenses and the admissibility of such evidence is determined under Evidence Code section 352. The court stated it would allow gang-related evidence limited to Leal's gang moniker of "Travieso" to show identity, but only if it was described as a nickname. The court also ruled the prosecutor would be allowed to show Leal's motive by presenting evidence the liquor store was located within the Lopers' claimed territory along with evidence of Leal's gang-related tattoos.
During the prosecution's case-in-chief at the trial on the substantive offenses, the prosecutor elicited testimony from Shynn the liquor store is in the criminal street gang Lopers' claimed territory, Leal goes by the nickname Travieso, and Shynn has seen a tattoo across Leal's abdomen that says "Lopers" which he understood reflects Leal's permanent allegiance to that gang. Shynn also opined, based on his training and experience, showing someone a tattoo that says "Lopers" is an act of intimidation.
Leal argues, even under a deferential abuse of discretion standard of review, the trial court prejudicially erred in admitting the limited gang evidence in the prosecution's case-in-chief. Evidence of a defendant's gang affiliation can be admissible to prove identity and motive. (People v. Becerrada (2017) 2 Cal.5th 1009, 1022 ["'Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like- can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime'"].) Leal does not argue either Assembly Bill 333 or section 1109, subdivision (a) changes this rule. The limited gang-related evidence admitted here was relevant to the attempted murder and assault with a firearm charges to show Leal's identity and motive to commit those offenses. The probative value of that evidence was not substantially outweighed by the probability its admission would necessitate an undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury within the meaning of Evidence Code section 352.
In any event, even if the admission of that evidence constituted an abuse of discretion, Leal was not prejudiced because the evidence of his guilt was overwhelming even without the gang evidence. Significantly, the jury was able to view the surveillance video from the liquor store showing Leal's interactions with Alvaro. The video showed Leal and Alvaro arguing, Leal lifting his shirt to Alvaro, Leal retrieving his gun from inside the store, Leal and Alvaro resuming their argument before Leal slapped Alvaro, and Leal raising his gun and firing it in the direction of the retreating Alvaro. We find no error.
C. The Trial Court Did Not Abuse Its Discretion by Excluding Testimony Regarding Raya's Prior Testimony on the Lopers' Primary Activities
Leal argues, during the bifurcated trial on the gang enhancement, the trial court erred by sustaining the prosecutor's relevance objection to defense counsel's cross-examination of the prosecution's gang expert regarding the expert's prior testimony that felony graffiti was one of the Lopers' primary activities. Leal contends the court's ruling on this point violated Leal's right to confront witnesses in violation of the Sixth Amendment to the United States Constitution. We agree with the trial court the gang expert's prior testimony on the Lopers' primary activities was irrelevant.
As originally enacted, subdivision (f) of section 186.22 "defined a '"criminal street gang"' as 'any ongoing association of three or more persons that shares a common name or common identifying sign or symbol; has as one of its "primary activities" the commission of specified criminal offenses; and engages through its members in a "pattern of criminal gang activity."'" (Clark, supra, 15 Cal.5th at p. 752, italics added.) The changes to the STEP Act effected by Assembly Bill 333 included striking "certain nonviolent offenses from the list of offenses that could make up a gang's primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26." (Clark, supra, at p. 753.) As amended, felony vandalism (§ 594, subd. (b)(1)) is no longer included in the enumerated list of criminal offenses set forth in section 186.22, subdivision (e)(1).
Section 186.22, subdivision (f) currently provides in relevant part: "As used in this chapter, 'criminal street gang' means an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e) ...." (Italics added.)
During the bifurcated jury trial on the gang enhancement, defense counsel asked the prosecution's gang expert, Raya: "When you were first working as a gang officer and you were testifying, did you ever testify that felony graffiti was a primary activity of the Lopers?" After the prosecutor objected on the ground of relevance and requested a sidebar, counsel and the court conferred outside the presence of the jury. Defense counsel argued the question was relevant to the detective's credibility, explaining: "[I]f he used to testify that the primary activity was something else and he changed it, not based on a change in the behavior, but based on the change in the law, that's his credibility. He is saying what he needs to say as a hired gun not based on his actual analysis or understanding of the group."
The trial court did not abuse its discretion by sustaining the prosecutor's relevance objection. Section 186.22, subdivision (f) provides that in order for an organization to qualify as a criminal street gang, it must have "as one of its primary activities" (italics added) an offense listed in subdivision (e) of that statute. Thus, even assuming the Lopers' activities had not changed since Raya previously testified, and further assuming one of the Lopers' primary activities continues to be felony vandalism, it is irrelevant whether Raya once testified felony vandalism was a primary activity of the Lopers. Any such testimony does not affect testimony in the instant case about whether the Lopers engage in other primary activities which remain listed in subdivision (e) of section 186.22.
Moreover, even if we were to further assume Raya's testimony on this point is relevant, the probative value of such testimony would be substantially outweighed by the undue consumption of time and potential confusion that would result in having to explain to the jury the change in the law that would account for Raya's focus on primary activities that are still enumerated in subdivision (e) of section 186.22. (See Evid. Code, § 352.) We find no error.
II. CONTENTIONS OF INSTRUCTIONAL ERROR
Leal contends the trial court erred by refusing to instruct the jury with two pinpoint instructions he proposed. Leal's contentions are without merit.
A. Governing Legal Principles and Standard of Review
"'The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.'" (People v. Rivera (2019) 7 Cal.5th 306, 332.) The court must also instruct on "'general principles of law that are closely and openly connected with the facts before the court and necessary for the jury's understanding of the case.'" (People v. Simon (2016) 1 Cal.5th 98, 143.)
"'Under appropriate circumstances, "a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case .... "'" (People v. Whisenhunt (2008) 44 Cal.4th 174, 220.) Pinpoint instructions "'relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case.'" (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) Parties are entitled to legally correct and factually warranted pinpoint instructions, should they request such additional instructions. (People v. Hughes (2002) 27 Cal.4th 287, 362.) However, a trial court may properly refuse to give a pinpoint instruction that "incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence." (People v. Moon (2005) 37 Cal.4th 1, 30.)
We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] '"In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given."'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
B. The Trial Court Did Not Err by Refusing Leal's Proposed Pinpoint Instruction Stating a Person with a Felony Conviction Has the Right to Use Self Defense
In the hearing on jury instructions to be given during the trial on the substantive offenses, citing People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346, Leal's trial counsel requested the court give the jury the following pinpoint instruction: "A person with a prior felony conviction still has the right to defend himself, stand his ground, and use the amount of force reasonable under the circumstances." The trial court denied giving the proposed pinpoint instruction.
The trial court did not err by refusing to give the proposed pinpoint instruction because it was duplicative of other instructions given to the jury. In CALCRIM No. 2511, the jury was instructed Leal and the prosecution had stipulated Leal was previously convicted of a felony and "[t]his stipulation means that you must accept this fact as proved. [¶] Do not consider this fact for any other purpose."
The jury was also instructed in CALCRIM No. 505: "The defendant is not guilty of attempted murder . . . if he was justified in attempting to kill someone in self-defense." (Italics added, parentheses omitted.) CALCRIM No. 505, along with CALCRIM No. 3470, which was also given to the jury, each stated: "The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." (Italics added and parentheses omitted.) Both instructions further stated "[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation" and that a defendant is not required to retreat, but is entitled to stand his or her ground and defend himself or herself. (Italics added.) The jury was also instructed in CALCRIM No. 200 to consider the given instructions together. We presume the jury understood and considered all of the instructions as a whole. (See People v. Najera (2006) 138 Cal.App.4th 212, 228.)
In People v. Rhodes, supra, 129 Cal.App.4th at page 1346, the appellate court held the jury should have been instructed with CALJIC No. 5.50 which is similar to CALCRIM No. 3470.
Construing the given instructions as a whole, the jury was instructed Leal suffered a prior felony conviction, but it could not be considered for any other purpose, and Leal could not be found guilty of attempted murder if he acted in self-defense. Because Leal's proposed pinpoint instruction on this issue did not add anything not already included within the given jury instructions, the trial court did not err by refusing to give it.
C. The Trial Court Did Not Err by Refusing Leal's Proposed Pinpoint Instruction Stating Not Every Crime Committed by a Gang Member Is Committed for the Gang's Benefit
Leal argues the trial court prejudicially erred by failing to instruct the jury with the following pinpoint instruction he requested at the bifurcated trial on the gang enhancement allegation: "Not every crime committed by an individual gang member is for the gang's benefit or to promote criminal conduct by gang members . . . gang members can commit crimes for their own purposes. Without more, expert testimony about the reputational benefits of crime does not support an inference that a lone gang member committed a crime for gang-related reasons-as opposed to acting from other, more personal motives." Leal cited People v. Renteria (2022) 13 Cal.5th 951 (Renteria) as the source of the proposed pinpoint instruction's language.
The trial court denied Leal's request to give the jury that pinpoint instruction. The court explained Renteria dealt with the sufficiency of the evidence and had nothing to do with any challenge to the given jury instructions, much less any instructional challenge with regard to the gang enhancement. The trial court explained: "[T]he court does not feel that particular case and the language that you have quoted support an accurate statement of the law, but rather an argument and argument that goes to the sufficiency of the evidence which is something that is part of the many things that the jury is going to have to do in order to make a decision."
In Renteria, supra, 13 Cal.5th at p. 957, the defendant was found guilty of two counts of shooting at an inhabited dwelling. The defendant was a gang member, but was alone at the time of the shootings. (Ibid.) The jury found the gang enhancement allegation true. (Ibid.)
The Supreme Court reversed, holding insufficient evidence supported imposing the gang enhancement. (Renteria, supra, 13 Cal.5th at p. 957.) The court explained that in a case involving a lone actor, "operation of the statute [section 186.22, subdivision (b)] turns, at bottom, on the nature of the individual's actions and reasons for committing the underlying felony. Specifically, the statute requires proof that the defendant committed the underlying felony (1) for the benefit of the gang, and (2) with specific intent to promote, further, or assist the criminal conduct of gang members." (Id. at p. 965.) The Supreme Court found insufficient evidence supported either prong of the gang enhancement statute. (Id. at p. 973.) The court cited, inter alia, the dearth of evidence the defendant had identified himself or his gang during the shootings or took credit for them on behalf of his gang afterwards. (Id. at p. 971.)
Here, the jury was instructed with CALCRIM No. 1401, which tracked the law reiterated and applied by the Supreme Court in Renteria, supra, 13 Cal.5th 951. The version of CALCRIM No. 1401 given to the jury stated in relevant part: "If you find the defendant guilty of the crimes charged in COUNTS 1 and 2, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant committed that crime (for the benefit of) a criminal street gang. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
"To prove this allegation, the People must prove that:
"1.The defendant (attempted to commit) the crime (for the benefit of) a criminal street gang;
"AND
"2. The defendant intended to assist, further, or promote criminal conduct by gang members.
"To benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (Italics added.)
The jury was thus instructed the mere fact a gang member committed a crime is insufficient to support the gang enhancement. Instead, with regard to each crime committed, the jury was instructed to find whether the defendant committed the crime for the benefit of the gang and intended to assist, further, or promote criminal conduct by gang members. The given instruction also specified the common benefit requirement must be more than reputational.
Consequently, Leal's proposed pinpoint instruction added nothing to the standard instruction given to the jury. Because a pinpoint instruction may be refused if it is duplicative, even if correct on the law, the trial court did not err by refusing to give Leal's proposed pinpoint instruction in the bifurcated gang enhancement trial. (See People v. Moon, supra, 37 Cal.4th at p. 30.)
III. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
"When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zaragoza (2016) 1 Cal.5th 21, 44.) "'[A] reasonable inference . . . "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." [Citation.]'" (People v. Davis (2013) 57 Cal.4th 353, 360.) "'"'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'"'" (People v. Valdez (2004) 32 Cal.4th 73, 104.)
We do not reweigh evidence, reevaluate the credibility of a witness, or settle factual conflicts, because "these are functions reserved for the trier of fact." (People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.) We "can only reject evidence accepted by the trier of fact when the evidence is inherently improbable and impossible of belief. [Citation.] Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Ibid.)
B. Substantial Evidence Supported the Attempted Murder Conviction
"To prove the crime of attempted murder, the prosecution must establish 'the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.'" (People v. Canizales (2019) 7 Cal.5th 591, 602.) In his opening brief, Leal argues insufficient evidence supported the finding he harbored the specific intent to kill Alvaro.
"'Intent to unlawfully kill and express malice are, in essence, "one and the same."' [Citation.] Express malice requires a showing that the assailant either desires the victim's death or knows to a substantial certainty that the victim's death will occur." (People v. Covarrubias (2016) 1 Cal.5th 838, 890.) "There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Sufficient evidence supported the jury's finding Leal acted with the specific intent to kill Alvaro. The trial evidence showed, after Leal argued with Alvaro and was unsuccessful in getting Alvaro to leave the area of the liquor store, Leal went inside the liquor store, retrieved his gun, returned to the front of the store, and resumed the confrontation with Alvaro. Now armed, Leal struck Alvaro causing Alvaro to follow Leal into the parking lot where Leal pulled out his gun, raised it, and intentionally fired it in Alvaro's direction.
"'The act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill.'" (People v. Covarrubias, supra, 1 Cal.5th at p. 892; see People v. Jackson (1989) 49 Cal.3d 1170, 1201 ["the very act of firing a shotgun toward the [victim] would permit an inference of intent to kill"]; People v. Medina (2019) 33 Cal.App.5th 146, 153 ["[f]iring a gun at [the victims] from . . . close range was substantial evidence from which the jury could find a specific intent to kill"].)
Moreover, the fact Leal took steps toward Alvaro while Alvaro was quickly backing away from him before firing the gun was further evidence Leal intended to kill Alvaro. (See People v. Bolin (1998) 18 Cal.4th 297, 319 ["firing at a fleeing victim reasonably reflects an intention to kill"]; People v. Pettie (2017) 16 Cal.App.5th 23, 53 ["jury could reasonably infer from" evidence the defendant "fired multiple shots after [the victim] fled" that the defendant "harbored an intent to kill"].)
As substantial evidence supported the jury's guilty verdict on the attempted murder charge, Leal's state and federal constitutional rights to due process were not violated.
C. Substantial Evidence Supported the Gang Enhancement
Leal also contends the gang enhancement is not supported by substantial evidence because insufficient evidence shows the offenses were committed to benefit the gang. He argues the gang expert's testimony on this point was speculative and lacking in foundation. In his supplemental opening brief, Leal challenges the sufficiency of the evidence supporting the gang enhancement on the additional ground insufficient evidence showed "an organizational nexus between the individual predicate offenses of the gang as an organized, collective enterprise." (Capitalization and boldface omitted.) We address and reject each of Leal's contentions of insufficient evidence.
1. Sufficient evidence supported the finding Leal committed the offenses to benefit the Lopers criminal street gang.
As discussed ante, section 186.22, subdivision (b) provides for an enhanced sentence for a person convicted of a felony "committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members." Assembly Bill 333 narrowed what it means for an offense to have benefitted a street gang, requiring that any "'"common benefit"'" be "'"more than reputational."'" (Clark, supra, 15 Cal.5th at p. 752.) Subdivision (g) of section 186.22 now provides: "As used in this chapter, to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant."
Substantial evidence supported the finding Leal committed counts 1 and 2 for the benefit of Lopers and provided a common benefit to Lopers gang members that is more than reputational within the meaning of the statute. Evidence was presented at trial that Leal, an active Lopers gang member, regularly hung out at a liquor store, located 20 to 30 minutes from the city where Leal lived but within the Lopers' claimed territory, suggesting he was engaged in posting up at the liquor store to defend his gang's claim on that area on the night in question. Substantial evidence supports the inference Alvaro thereafter presented himself to Leal as a perceived rival not only because of his aggressive manner, but because he stated he was from "Third Street" in a manner similar to one claiming affiliation with a criminal street gang. Leal argued with Alvaro, urging him to leave. Alvaro did not leave. Leal lifted his shirt in Alvaro's direction, displaying the Lopers tattoo on his abdomen. After further argument, Leal retrieved the gun he left inside the liquor store, and resumed arguing with Alvaro. After he slapped Alvaro and Alvaro followed him into the parking lot, Leal raised his gun and fired it in Alvaro's direction.
In his opening brief, Leal argues: "The expert speculated that the shooting promoted the gang by the shooter displaying the gang specific tattoos. [Citation.] However, there is no evidence that the actual tattoo was ever displayed or that this action was intended to promote the gang." Substantial evidence shows Leal has a Lopers tattoo across his abdomen. Substantial evidence supports the reasonable inference Leal displayed that tattoo to Alvaro when he raised his shirt facing Alvaro.
Raya opined, based on a hypothetical mirroring these facts, Leal committed counts 1 and 2 for the benefit of the Lopers criminal street gang. Raya testified Leal's conduct benefited the gang beyond enhancing its reputation because he effectively controlled gang territory, targeted a perceived rival, and intimidated witnesses from coming forward with information. Subdivision (g) of section 186.22 quoted ante lists targeting a perceived gang rival and intimidation or silencing of potential current witnesses as examples of a common benefit to the gang that are more than reputational.
2. Sufficient evidence supported the organizational nexus between the individual predicate offenses and the gang as an organized collective enterprise
In his supplemental opening brief, Leal argues insufficient evidence supports the gang enhancement because no evidence shows the organizational nexus between the individual predicate offenses and the gang as a collective enterprise.
In addition to changes discussed ante, Assembly Bill 333 made the following changes to the section 186.22 gang enhancements: "'First, it narrowed the definition of a "criminal street gang" to require that any gang be an "ongoing, organized association or group of three or more persons." [Citation.] Second, whereas section 186.22, former subdivision (f) required only that a gang's members "individually or collectively engage in" a pattern of criminal activity in order to constitute a "criminal street gang," Assembly Bill 333 requires that any such pattern have been "collectively engage[d] in" by members of the gang. [Citation.] Third, Assembly Bill 333 also narrowed the definition of a "pattern of criminal activity" by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang "members," as opposed to just "persons"; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.'" (Clark, supra, 15 Cal.5th at p. 752.)
The Supreme Court in Clark, supra, 15 Cal.5th at page 761 explained: "While the legislative history may not clearly indicate the intended meaning of the Legislature's switch to a requirement of collective engagement in a pattern of criminal gang activity, it is clear what the Legislature meant this change to accomplish. The change was made in service of the Legislature's broader goal of differentiating between the threat posed by organized groups collectively engaged in criminal activity, versus the threat posed by individual, loosely connected persons who happen to commit crimes. That differentiation, we now conclude, requires a showing that links the two predicate offenses to the gang as an organized, collective enterprise."
In Clark, the Supreme Court stated the "organizational nexus may be shown by evidence linking the predicate offenses to the gang's organizational structure, meaning its . . . primary activities." (Clark, supra, 15 Cal.5th at p. 762; ibid. ["collective engagement might be shown by demonstrating that the offenses are reflective of the primary activities of the gang"].) The Supreme Court in Clark reversed the judgment of the appellate court as to the defendant's gang enhancement, explaining: "Although the expert testifying for the prosecution discussed the benefits that might flow to the gang from the charged crimes, the prosecution did not present evidence to establish whether the predicate offenses were committed to benefit the gang, or whether there existed an organizational nexus between those offenses and the gang as a collective enterprise." (Id. at p. 764.)
Our record is different than the record in Clark, supra, 15 Cal.5th 743. At the bifurcated trial on the gang enhancement, gang expert Raya testified the Lopers' primary activities include robbery and assault with a deadly weapon, and that assault with a firearm and shooting a firearm are typical crimes committed by Lopers' members. The record contains evidence active Lopers members Morales and Gonzalez committed the predicate crimes of robbery and armed carjacking-both of which are crimes reflective of the Lopers' primary activities as established by the prosecution's gang expert's testimony. In addition, and significantly, unlike the circumstance in Clark, Morales and Gonzalez did not only plead guilty to committing the predicate crimes, they admitted they committed those crimes for the benefit of the gang.
We therefore conclude substantial evidence supported the organizational nexus between the predicate offenses to the gang as an organized, collective enterprise in compliance with the legislative changes made in Assembly Bill 333.
IV.
THE RECORD SHOWS LEAL KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO A JURY TRIAL ON THE PRIOR CONVICTION ALLEGATIONS
Leal contends the record does not show a knowing and intelligent waiver of his right to a jury trial regarding his prior convictions. He argues his waiver of same was the product of coercion by the trial court. As we will explain, the record does not support Leal's contention.
A. Governing Legal Principles
"A criminal defendant has the constitutional right to a jury trial. [Citations.] However, a defendant may waive this fundamental right to a jury trial by a personal and express waiver in open court and by consent of both parties. [Citations.] To be valid, the record must show the defendant's waivers of the right to a jury are knowing, intelligent, and voluntary. [Citation.] In making such a determination, we examine 'the totality of the circumstances' unique to each case." (People v. Morelos (2022) 13 Cal.5th 722, 753.) The California Supreme Court in Morelos "reemphasize[d] 'the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial.'" (Ibid.)
B. The Waiver Colloquies
At a hearing before the jury trial on the substantive offenses, the trial court discussed bifurcating trial as to different aspects of the case with counsel and Leal. The court confirmed with Leal and his counsel that Leal would like to have the trial on the gang enhancement allegation bifurcated from the trial on the substantive offenses and to thereafter have a jury trial to decide that enhancement "if and when we get to that point."
With respect to Leal waiving a jury trial as to the prior conviction allegations, the court, Leal, and Leal's counsel engaged in the following colloquy:
"[The Court: ]When it comes to your prior convictions, and any mention of your prior convictions, you have several choices. The first one would be that I would tell the jury about all those, and that they have to decide whether you suffered those prior convictions. And the People would have to put up evidence to prove that you suffered those prior convictions, and you and your attorney could challenge those. And they would have to prove it beyond a reasonable doubt. You have all the trappings of a jury trial. You can call witnesses if you want. You could cross-examine witnesses. All the constitutional rights you could have, you could have the jury decide those factors. Okay.
"Or, if you'd like, I don't read those at all to the jury. They know nothing about them, and if you're found guilty, then you could have a court trial. Meaning, I thank and excuse the jury for them having done their job, whatever they did. Then same thing; it's a court trial. Everybody has to present evidence. It could be challenged, you can call witnesses, you can subpoena witnesses, you can do all that. And then the court trial is I decide whether the People have proved each and every element to prove that you did actually suffer those prior convictions for factors in aggravation.
"The last option you have, Mr. Leal, is -- and if we get to that point. You can just say, your honor, I'm just going to admit, yeah, those are mine. Okay. And then that's that.
"So do you understand all those different options?
"[Leal]: Yes.
"The Court: [Defense counsel], did you have an opportunity to chat with him in regards to those options and what your thoughts and feelings were on those options?
"[Defense counsel]: If I could just have a moment?
"The Court: All right. You can take your time, sir.
"[Defense counsel], did you have an opportunity to chat with you[r] client about all those different options on all those things, other than the 186.22(b)?
"[Defense counsel]: Yes.
"At this time, he'd be asking for a court trial as to those matters."
"The Court: Okay. No problem at all.
"Do you have any questions on that at all, Mr. Leal?
"In other words, if we get to that point, you have any questions about it, the court deciding, and you having a full trial in front of the court to decide whether or not you had those prior convictions. Are you okay with that?
"[Leal]: Yes."
While the jury was deliberating as to the substantive charges following the first trial, the trial court sought confirmation Leal still wished to waive jury trial on the prior conviction allegations. Leal's counsel confirmed that if the jury found Leal guilty on counts 1 and 2, Leal wanted a jury trial as to the gang enhancement. Counsel also stated: "As to the remainder, the factor in aggravation, the strike prior, and the nickel prior, and the crime-bail-crime, . . . Leal would waive his right to a jury trial and go to a court trial as to the remaining. So we just have the one allegation left for the jury."
The court then engaged in a second colloquy with Leal in which it asked Leal if he wished to have a jury trial as to the gang enhancement alleged as to counts 1 and 2 and a court trial as to the remaining crime-bail-crime allegation (§ 12022.1, subd. (b)), factor in aggravation, and prior conviction allegations. After Leal confirmed this was what he wanted, the trial court again advised Leal of his rights to a jury trial on these issues and Leal indicated he understood the court's advisement. Leal also confirmed he had an opportunity to discuss his waiver with his attorney. The court then found Leal's waiver to have "been done freely, voluntarily, and with a full understanding of all the matters that the court has discussed."
C. The Record Does Not Show Leal's Jury Waiver Was Based on Any Misrepresentation or Coercion
In his opening brief, Leal solely challenges the validity of his waiver of a jury trial on the prior conviction allegations on the ground it was "the product of misrepresentations and coercion." (Boldface and some capitalization omitted.) Citing to his first colloquy with the court on the subject quoted ante, Leal argues "the trial court erroneously told Leal that if he were to exercise his right to a jury trial on the prior conviction allegation the jury would be made aware of the priors up front" and failed to explain the jury would not have been informed of the prior conviction allegations unless it first found him guilty of the substantive charges, regardless of whether he waived a jury trial on those allegations.
At no time during the waiver colloquies did the trial court indicate it would tell the jury of Leal's prior conviction allegations during the trial on the substantive offenses unless he waived a jury trial with regard to those allegations. During the first colloquy, in the context of bifurcating trial as to, inter alia, the prior conviction enhancement allegations, the court explained Leal also had the right to a jury trial, a court trial, or admit the truth of those allegations. The court continued to explain that, with the first option (e.g., a bifurcated jury trial on the prior conviction allegations), the court "would tell the jury about all those, and that they have to decide whether you suffered those prior convictions. And the People would have to put up evidence to prove that you suffered those prior convictions, and you and your attorney could challenge those."
To the extent these statements by the court during the first colloquy might be ambiguous as to the timing of informing the jury of the prior conviction allegations, any ambiguity was entirely resolved in the second colloquy. At the time of that colloquy, the prosecution and defense had rested their cases in the trial on the substantive offenses, the jury had received their instructions, and the jurors were in deliberations regarding those offenses. During the second colloquy, the court reconfirmed Leal's choice to proceed with a court trial on the prior conviction allegations if the jury returned guilty verdicts following deliberations. The record does not show Leal's waiver of a jury trial on the prior conviction allegations was based on any misrepresentation or coercion or was otherwise invalid. We find no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'LEARY, P. J., SANCHEZ, J.