Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1217957, Timothy W. Salter, Judge.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant Paul Anthony Lopez, Jr.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant Albert Andrew Lucero.
Balin & Kotler, Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant Armando Lopez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
PROCEDURAL HISTORY
Armando Lopez (A. Lopez), Paul Anthony Lopez, Jr. (P. Lopez), and Albert Andrew Lucero (Lucero) were charged with the premeditated attempted murder (count 1) of Kenneth Lindsay, assault with a deadly weapon (count 2), possession of a shank while in jail or prison (count 3), and participation in a criminal street gang (count 4). The information also alleged that the three committed the offenses charged in counts 1, 2, and 3 for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1), and that the three personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly weapon (§ 12022, subd. (b)) in the commission of the offenses charged. The information also alleged that A. Lopez had served a prior prison term and that Lucero had suffered two prior serious felony convictions and had served a prior prison term. The prosecutor ultimately decided not to seek the personal-use enhancement against P. Lopez and Lucero. A fourth man, Timothy McKenzie, was charged, but was acquitted by the jury.
All further references are to the Penal Code unless noted otherwise.
Following trial, the jury found all three defendants guilty on counts 1, 3, and 4, but acquitted them of assault with a deadly weapon. The jury found true the allegation that the offenses were committed for the benefit of a criminal street gang and that the three defendants had each personally inflicted great bodily injury. The jury also found that A. Lopez had personally used a weapon (the shank). In a bifurcated proceeding, the trial court found true the allegations concerning the prior prison terms and prior serious felony convictions.
Lucero was sentenced to an indeterminate term of 30 years to life on count 1 and a consecutive determinate term of eight years on the remaining counts. P. Lopez was sentenced to an indeterminate term of 15 years to life on count 1 and a consecutive determinate term of two years on the remaining counts. A. Lopez was sentenced to an indeterminate term of 15 years to life on count 1 and a determinate term of two years on the remaining counts.
FACTUAL SUMMARY
All three defendants were inmates at Stanislaus County Jail and all were validated members of the Norteño gang. Lindsay, McKenzie, and the three defendants were housed together with other documented members of the Norteño gang in a 12-man cell. On October 19, 2006, the inmates were removed from their cell for cell maintenance. Four of the inmates, including Lindsay, temporarily were placed together in a holding cell. While in the cell, Lindsay found three balloons of heroin. Lindsay gave one balloon to a cellmate and secreted two of the balloons on his person. Later, Lindsay informed A. Lopez and P. Lopez about the heroin. Heroin is a valuable commodity in jail. Generally, gang members are required to share with other gang members any drugs that are found, not for consumption, but for use in gaining power and control within the jail. Lindsay kept his two balloons instead of passing them on to gang leaders. He began to barter the heroin for commodity items, which violates the gang’s code of conduct. Inmates who engage in this behavior face punishment and “removal” by other gang members. Fatal removals involve the use of weapons.
The defendants are referred to in the record both by their names and by their gang monikers. P. Lopez is sometimes referred to as “Mugsy.” A. Lopez is sometimes referred to as “Soldier,” and Lucero is sometimes referred to as “Lil Man” or “Manos.” McKenzie’s moniker is “Scorpizi” or “Scorpion” and Lindsay’s moniker is “Psycho” or “Psychs.”
Later that evening, after Lindsay took his shower, he was invited to join in a game of cards. Seated at the table were the three defendants and McKenzie. While sitting at the table, Lindsay was hit from behind in the chest. He turned and saw A. Lopez. P. Lopez came to Lindsay’s side. At first, Lindsay believed P. Lopez was coming to his aid, but instead P. Lopez punched Lindsay in the face and was grinning. Lindsay was hit from the other side but was not sure who hit him. He tried to grab hold of McKenzie but was unable to stay up. Lindsay fell to the floor. His assailants then kicked and hit him numerous times. Lindsay yelled “man down” in an attempt to summon deputies. P. Lopez told him to “shut up” and “close [his] eyes,” a reference Lindsay understood as meaning to die. Lucero kicked him from behind. Lindsay could not say how many times he was kicked or hit or who inflicted what blows. He did not see McKenzie hit or kick him. Lindsay did not see any weapons. After A. Lopez hit him in the chest, Lindsay pushed A. Lopez off of him and A. Lopez scooted to the right and was gone.
Lindsay lost consciousness. As a result of the attack, Lindsay suffered wounds to the back of his head requiring stitches; a number of scratches, including one across his neck; a slice and scrape across his nipple; and a small puncture-like wound on his chest that did not require stitches. There was no mention of the puncture wound or stabbing in the medical reports.
When the deputies arrived at the cell, Lindsay was down and nonresponsive. There was blood on the floor and blood scattered about the cell. None of the inmates in the cell claimed to have seen what happened. The deputies segregated the inmates who had visible signs of trauma. P. Lopez, A. Lopez, and one other inmate were found to have redness, swelling, or cuts on their hands. A. Lopez was wearing a T-shirt that had a sleeve torn off, and blood was found on his boxer shorts. P. Lopez’s boxers also had blood on them. There were no marks found on Lucero’s hands. After the assault, the heroin was gone.
The next morning, Deputy Teso, a gang specialist officer, came to investigate the attack. When interviewing an inmate, Teso asked him to lift his trouser legs. When the inmate complied, Teso found a “huila” or written memo. The huila was addressed to “Manos” and signed by “Soldier.” It detailed the assault on Lindsay and named those who participated in the attack and provided the motive for the attack—Lindsay’s failure to follow the gang’s code of conduct.
Detective Navarro interviewed Lindsay the day after the assault. Lindsay did not identify any of his attackers. Later, Lindsay said he did not do so out of fear. In March 2007, Lindsay ran into A. Lopez during a court date. A. Lopez asked Lindsay if he was going to testify and told Lindsay he was lucky to be alive. Lindsay took this as a threat. After this encounter, Lindsay negotiated a deal with the prosecution and identified his attackers.
DISCUSSION
I. Admission of the “huila”
The defendants raise a number of issues related to the admission of the huila found the day after the assault. It was written to “Manos” and signed by “Soldier.” Deputy Teso testified that “Manos” referred to Lucero, who was also known as “Lil Man,” and that A. Lopez was “Soldier.” Navarro testified that Lucero was known by two monikers, “Lil Man” and “Manos.” Lindsay said that A. Lopez was the gang member referred to as “Soldier.” The huila documented that the attempted “removal” of Lindsay occurred on October 19, 2006. It explained that the removal was for “degenerate acts, use of drugs, heroin, promoting it, and spreading negativity amongst our people.” It also charged Lindsay with numerous prior violations of the gang code. The author noted that he had “assisted” in the removal, and that he had arrived at the jail on “Thursday, 10-12-06, from DVI, Tracy.” After explaining the details of the acts leading to the removal, the author stated, “I was the hitter. After I hit [Lindsay] a few times, in the chest area, I went for the neck. I then noticed my piece broke, and I flushed it. [Lindsay] called ‘man down,’ and then the K9’s arrived.”
Both Lindsay and Teso testified that huilas are used to communicate within the gang and are carried by designated couriers from place to place. Huilas are written on very small pieces of paper to avoid detection, and writing a huila is a skill learned by gang members.
Obviously a damaging piece of evidence, the admission of the huila was litigated heavily at trial. On appeal, the defendants raise three related issues: (1) was the huila properly authenticated; (2) was it properly admitted under Evidence Code section 352; and (3) did its admission violate the rule of Aranda/Bruton.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).
A. Authentication
Evidence Code section 1401 requires that a document be authenticated before it is admitted into evidence. The defendants claim that the trial court erred when it admitted the huila after finding that it had been authenticated pursuant to Evidence Code section 1421. This section provides that a writing may be authenticated by evidence that the writing refers to or states matters unlikely to be known by anyone other than the claimed author. The trial court found that only A. Lopez would have known the exact date of his arrival at the Stanislaus County Jail. The defendants claim this finding cannot withstand scrutiny because Lindsay also remembered the date of A. Lopez’s arrival, many months later, and that there were 11 men in the cell who would have known the details of the assault.
On appeal, a trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718; People v. Williams (1997) 16 Cal.4th 153, 197.) We find error only where the trial court’s decision exceeds the bounds of reason. (People v. Funes (1994) 23 Cal.App.4th 1506, 1519.) In addition, we review the trial court’s ruling, not its reasoning. (People v. Mason (1991) 52 Cal.3d 909, 944.)
There are innumerable ways in which a document may be authenticated. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1372; People v. Gibson (2001) 90 Cal.App.4th 371, 383; McAllister v. George (1977) 73 Cal.App.3d 258, 263.) Evidence Code section 1410 provides that, “[n]othing in this article shall be construed to limit the means by which a writing may be authenticated or proved.” “Circumstantial evidence, content and location are all valid means of authentication. [Citations.]” (People v. Gibson, supra, at p. 383; see also People v. Olguin, supra, at p. 1372 [both content and location identified papers as work of defendant].) Here, the huila was found on one of the cellmates the day after the assault. It described the assault in detail and is consistent with the evidence at trial. There was evidence that huilas are used to communicate with gang members in other locations in the jail and outside the jail about gang activity. Teso testified that, because Lindsay was a gang member with some status, the attack had to be justified to gang leaders. The manner of the writing, small print on a small piece of paper, is consistent with the description of huilas given by Lindsay and Teso. The huila was signed by “Soldier,” a moniker for A. Lopez. In combination, there is ample circumstantial and direct evidence that the huila is what the prosecution purports it to be: a gang communiqué, written by A. Lopez, reporting the assault on Lindsay. (See People v. Olguin, supra, 31 Cal.App.4th at p. 1372 [lyrics handwritten on yellow paper properly authenticated as being written by defendant where they refer to author by defendant’s gang moniker or by nickname easily derived from defendant’s proper name, include references to Southside gang membership, and could be interpreted as referring to disk-jockeying, a part-time employment of defendant].)
The other objections to the contents of the huila go to its weight, not to admissibility. There was a reference to “Lil Man” in the body of the huila, which might suggest the “Manos” the huila was addressed to was not Lucero. It seems improbable, however, that A. Lopez would write a huila to Lucero telling him that he (Lucero) participated in the assault. Or, if the purpose of the huila was not to inform, but to memorialize, it also is improbable that A. Lopez would use two different monikers to refer to the same person. The record is clear that Lucero is usually referred to as “Lil Man.” The jurors, however, did not see or hear this reference, and any question they might have had about why A. Lopez was writing to Lucero was resolved against Lucero.
The defendants also contend that the evidence was improperly admitted under Evidence Code section 352 because it was highly prejudicial. Again, the applicable standard of review is for an abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 49-50.) “Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias. [Citation.]” (People v. Olguin, supra, 31 Cal.App.4th at p. 1369.)
We see no error in admitting the huila because it was highly relevant and not likely to invoke a purely emotional bias. The huila establishes A. Lopez’s culpability and is proof of gang motivation. It also establishes evidence of possession of a shank. Highly relevant evidence, even though prejudicial to the defense, is not the type of evidence that Evidence Code section 352 was intended to exclude. (People v. Zapien (1993) 4 Cal.4th 929, 958 [statute not intended to prevent prejudice or damage to defense that naturally flows from relevant, highly probative evidence].)
C. Aranda-Bruton rule
Finally, with respect to the huila, P. Lopez and Lucero also challenge its admission on Aranda-Bruton grounds, arguing that their Sixth Amendment right to cross-examine the author of the huila was violated. Under the Aranda-Bruton rule, it is error in a joint criminal trial to admit an admission by a nontestifying codefendant that incriminates another codefendant, even if the jury is instructed not to consider the hearsay as evidence against the other codefendant. (Aranda, supra, 63 Cal.2d at pp. 528-530; Bruton, supra, 391 U.S. at p. 126.) The rule is motivated by the concern that incriminating a defendant by a nontestifying codefendant’s hearsay violates the defendant’s rights under the confrontation clause of the Sixth Amendment to confront and cross-examine his accusers. (Bruton, supra, at pp. 126, 136; People v. Fletcher (1996) 13 Cal.4th 451, 455, 465 (Fletcher).) The rule applies even where the hearsay statement has been redacted or sanitized to replace the nondeclarant defendant’s name with a blank space, the word “delete,” or some unique symbol. (Gray v. Maryland (1998) 523 U.S. 185, 188, 194-195 (Gray); Fletcher, supra, at p. 455.)
On the other hand, the rule has been held not to require exclusion of evidence (or separate trials) where the codefendant’s confession is redacted to eliminate any indication that there was another perpetrator. Under these circumstances, the confession can be admitted in a joint trial with a limiting instruction. (Richardson v. Marsh (1987) 481 U.S. 200, 203, 211 (Richardson); Fletcher, supra, 13 Cal.4th at p. 455 [issue is whether reference is “facially incriminating” of nondeclarant defendant].) In an attempt to avoid Aranda-Bruton issues, the trial court ordered that the huila’s reference to three “bombers,” “Lil Man, Mugsy and Scorpion” (Lucero, P. Lopez and McKenzie), be redacted. The jury was given a limiting instruction telling them that it was not to consider the huila against any defendant other than A. Lopez.
The defendants recognize that the rule in Bruton has been restricted by Richardson and Fletcher and argue that, despite the redaction, the huila as read to the jurors falls within the protection of Aranda-Bruton because it includes the statement that the author “assisted” in the assault. According to defendants, this reference implies that others participated in the assault and runs afoul of the rules for admission described in Richardson and Fletcher. We disagree.
In Richardson, the United States Supreme Court held that “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Richardson, supra, 481 U.S. at p. 211, fn. omitted.) The court distinguished the redacted confession before it from the confession at issue in Bruton, because the redacted confession was not incriminating on its face, but became so only when linked to other evidence. (Richardson, supra, at p. 208.) In Gray, the Supreme Court considered a confession that was redacted to replace the defendant’s name with an obvious indication of deletion, such as the word “deleted” or a symbol. (Gray, supra, 523 U.S. at p. 192.) The court determined that this type of case turned not on whether an inference was required to incriminate the defendant, but on the type of inference required. If the confession made a direct reference to a perpetrator other than the speaker and the jury immediately could infer, without considering other evidence, that that perpetrator was the defendant, then admission of the confession was Bruton error despite a limiting instruction. (Gray, supra, at p. 196.)
In Fletcher, the California Supreme Court considered whether “it is sufficient, to avoid violation of the confrontation clause, that a nontestifying codefendant’s extrajudicial confession is edited by replacing all references to the nondeclarant’s name with pronouns or similar neutral and nonidentifying terms.” It recognized that “[s]uch a confession is ‘facially incriminating’ in the sense that it is sufficient by itself, without reference to any other evidence, to incriminate someone other than the confessing codefendant. It is not ‘facially incriminating’ only in the sense that it does not identify this other person by name.” (Fletcher, supra, 13 Cal.4th at p. 456.) The court concluded:
“[W]hether this kind of editing—which retains references to a coparticipant in the crime but removes references to the coparticipant’s name—sufficiently protects a nondeclarant defendant’s constitutional right of confrontation may not be resolved by a ‘bright line’ rule of either universal admission or universal exclusion. Rather, the efficacy of this form of editing must be determined on a case-by-case basis in light of the other evidence that has been or is likely to be presented at the trial. The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun.” (Fletcher, supra, 13 Cal.4th at p. 456.)
In this case, we conclude that the editing complies with the rule set forth in Richardson, Gray, and Fletcher. With respect to P. Lopez, there is no reference in the huila that could support an inference that he assisted in the assault absent consideration of independent trial evidence. There were 11 men in the cell other than Lindsay who could have assisted in the assault, and nothing in the huila links those assisting to P. Lopez. We are not persuaded by the argument that the jury could easily infer the identities of those who “assisted” Soldier in the assault from Lindsay’s testimony that it was only when the prosecutor told him the four defendants would be prosecuted that Lindsay would identify his assailants. The Aranda-Bruton rule does not extend to those situations in which independent evidence reveals either directly or indirectly who is implicated by a codefendant’s confession. As the court in Gray stated, it is only when the jury can immediately infer, without considering other evidence, that that perpetrator was a defendant, that the admission of the confession violated Aranda-Bruton. (Gray, supra, 523 U.S. at p. 196.)
The issue is more complicated with respect to Lucero. The huila was written to “Manos.” There was testimony at trial that Lucero, in addition to being known as “Lil Man,” was also known as “Manos,” even though as we have pointed out the internal reference to “Lil Man” makes it less likely the “Manos” of the huila and the “Manos” of the cell are the same person. As a result, the editing did not eliminate all reference to Lucero. We conclude that the reference to “Manos” is not facially incriminating in relation to the assault. Given the context of the reference, e.g., the naming of the person to whom the huila is written, it is unlikely the jury would have concluded that “Manos” was one who “assisted” in the assault in the absence of independent trial evidence.
The reference, however, is incriminating in relation to the gang-participation count, because it established “Manos,” whom the jury understood to be Lucero, as a gang member of status, to whom other gang members would report. Although a close call, we believe, under Aranda-Bruton, the huila should not have come in as to Lucero.
Aranda-Bruton error is not reversible per se, but does implicate a constitutional right and is therefore subject to review under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Song (2004) 124 Cal.App.4th 973, 981; People v. Anderson (1987) 43 Cal.3d 1104, 1128.) There was a significant amount of independent evidence that A. Lopez, Lucero, and P. Lopez assaulted Lindsay. The jury obviously found Lindsay to be believable; it convicted the three defendants on direct testimony from Lindsay that they hit or kicked him, but acquitted McKenzie on Lindsay’s testimony that he did not see McKenzie participate in the attack. There was also independent evidence of serious injury, verification of physical injuries consistent with Lindsay’s account, independent evidence of opportunity and motive, as well as other evidence of guilt. Although the defense tends to discount Lindsay’s version of events, he obviously did not fake his attack. Having reviewed the entire record, we conclude that the admission of the huila, even if found to violate the defendants’ constitutional rights, was harmless beyond a reasonable doubt.
II. Sufficiency of the evidence
The defendants challenge the sufficiency of the evidence to support the conviction for possession of a shank and the true finding on the personal-infliction-of-great-bodily-injury enhancement. When a defendant raises a challenge on appeal to the sufficiency of the evidence to support a conviction, he must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the prosecution and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (See People v. Story (2009) 45 Cal.4th 1282, 1297.) We must decide whether substantial evidence supports the inference of guilt drawn by the jury. Substantial evidence includes circumstantial evidence and all reasonable inferences that may be drawn from it. (In re James D. (198l) 116 Cal.App.3d 810, 813.) Conjecture and surmise are not valid substitutes for competent evidence. (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 288.)
A. Shank possession
P. Lopez and Lucero argue that there is insufficient evidence to sustain the conviction for possession of a shank while in custody (§ 4502, subd. (a)). They contend the shank was never found, Lindsay’s medical reports do not document any puncture wound, and Lindsay admitted that he had not seen a shank. Lindsay did not testify that he was stabbed, but only that he was “hit” in the chest. The huila, which references the shank, was admitted only against A. Lopez and, as a result, could not be considered against P. Lopez or Lucero. To constitute possession, the statute requires that the weapon be in the inmate’s custody or control. (§ 4502, subd. (a); In re Daniel G. (2004) 120 Cal.App.4th 824, 831 [possession may be actual or constructive; constructive possession requires proof that inmate knowingly exercises control or right to control weapon].)
The Attorney General argues in response that the injuries suffered by Lindsay are sufficient circumstantial evidence that P. Lopez and Lucero constructively possessed a shank during the attack. Lindsay had a small puncture-like wound on this chest and scrapes on his arms consistent with his testimony that he was hit in the chest and attempted to fend off a deadly blow to his neck. He also had scrapes on his neck consistent with a sharp instrument. In addition, the Attorney General relies on the testimony of Deputy Teso, who stated that all gang members are supposed to have access to a weapon, P. Lopez’s statements to Lindsay to close his eyes, and A. Lopez’s statement that Lindsay was lucky to be alive, as evidence that the gang intended the attack to be fatal. Teso testified that fatal “removals” involve weapons.
We conclude there is sufficient evidence to support a finding that P. Lopez and Lucero constructively possessed a shank while in custody. Other than the huila, there is evidence that a shank was used in the attack. Lindsay heard whispering while he was in the shower, and the card game invitation was obviously a ruse requiring more than one participant. P. Lopez was grinning and told Lindsay, in essence, to die. The circumstances and context of the attack are sufficient to support a finding that all three defendants had constructive possession of a weapon, were working together, and intended to kill Lindsay.
Although the jury found the three men not guilty of assault with a deadly weapon (which was presented to the jury on the theory that the shank was a deadly weapon), the jury’s verdict on this count likely rests on the superficial wounds suffered by Lindsay and the quickness with which the shank disappeared from the fight. In any event, the acquittal does not preclude a finding of guilt on the possession count.
B. Great-bodily-injury enhancement
A. Lopez contends that there was insufficient evidence to sustain the jury’s finding that he personally inflicted great bodily injury. We disagree.
Although P. Lopez and Lucero do not specifically join in this argument, they do join generally in all arguments made by their codefendants that benefit them. Here, A. Lopez essentially concedes there was a group beating that resulted in great bodily injury but attempts by this argument to limit his role in it. Since P. Lopez and Lucero indisputably were participants in the group beating, the argument does not benefit them.
A. Lopez argues unpersuasively that, because he is specifically named as being responsible for the slight puncture-type wound to Lindsay’s chest and scratches to his neck, which do not amount to serious bodily injury, he cannot be found to have personally inflicted great bodily injury on a group-beating theory. (People v. Salas (1978) 77 Cal.App.3d 600, 605 [term “great bodily injury” means significant or substantial bodily injury].) Lindsay testified that A. Lopez started the attack by hitting Lindsay in the chest (in the area of the puncture wound) and by coming across his neck with a cutting instrument. Although Lindsay testified that, after the initial hits, he did not see A. Lopez, and although the huila suggests that once the shank broke, A. Lopez flushed it, there is evidence from which the jury could conclude that A. Lopez nonetheless played a significant part in the group beating.
Evidence that A. Lopez flushed the shank does not require a conclusion that A. Lopez withdrew from the attack and only inflicted the injuries directly linked to the shank. Lindsay’s injuries were substantial—from the time the beating started until he was knocked unconscious. Lindsay testified he was kicked and hit multiple times even though he was unable to identify where each kick or hit came from. There is no need to establish what particular blow or kick caused the injuries. (See People v. Banuelos (2003) 106 Cal.App.4th 1332, 1337 [when defendant participates in group beating, defendant may be punished with great-bodily-injury enhancement if his conduct could have caused great bodily injury suffered even when not possible to determine which assailant inflicted which injuries]; People v. Corona (1989) 213 Cal.App.3d 589, 593 [even though no evidence directly ties injury suffered to any particular blow struck by defendant, if defendant joined in delivery of blows and victim suffered great bodily injury, personal-infliction enhancement stands].) The deputies at the scene observed swelling and redness on A. Lopez’s hands; Lindsay said he pushed A. Lopez off his chest. This evidence supports an inference that A. Lopez participated in the group beating and his role was not limited to wielding the shank.
As we have stated, when reviewing the sufficiency of the evidence, it does not matter that facts and circumstances could have reasonably supported the opposite finding. (People v. Millwee (1998) 18 Cal.4th 96, 132.) The jury is charged with making the factual calls and we will not reverse where the jury’s conclusions are supported by evidence in the record and all reasonable inferences to be drawn from the evidence.
III. Instructional error
The defendants contend that the trial court erred in failing to instruct the jury sua sponte with Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) No. 3160 which provides:
“If you find the defendant guilty of the crime[s] charged in Count[s] _________[,] … you must then decide whether... the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [the injured person] in the commission [or attempted commission] of that crime. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.] [¶] … [¶]
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] … [¶]
“
“[If you conclude that more than one person assaulted [the injured person] and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury on [the injured person] if the People have proved that:
“1. Two or more people, acting at the same time, assaulted [the injured person] and inflicted great bodily injury on (him/her);
“2. The defendant personally used physical force on [the injured person] during the group assault;
“AND
“[3A. The amount or type of physical force the defendant used on [the injured person] was enough that it alone could have caused [the injured person] to suffer great bodily injury(;/.)]
“[OR]
“[3B. The physical force that the defendant used on [the injured person] was sufficient in combination with the force used by the others to cause [the injured person] to suffer great bodily injury.
“The defendant must have applied substantial force to [the injured person]. If that force could not have caused or contributed to the great bodily injury, then it was not substantial.] [¶] … [¶]
“The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”
A trial court is required to instruct sua sponte on the relevant general principles of law governing a case. This obligation includes instructions on all of the elements of an enhancement. (People v. Clark (1997) 55 Cal.App.4th 709, 714-715.) We agree that the trial court should have given this instruction. Even so, we conclude there is no prejudice.
When evaluating whether instructional error requires reversal, we are guided by the following principles. First, the correctness of jury instructions is determined from the entire charge of the court. (People v. Harrison (2005) 35 Cal.4th 208, 252; People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149 [claims of instructional error evaluated in context of overall charge to jury; jury presumed to be intelligent and capable of understanding entire charge], disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) Second, the absence of an element in one instruction may be provided by another instruction. Likewise, confusion in one instruction may be cured by a second. (People v. Burgener (1986) 41 Cal.3d 505, 539, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 751.) Even though the failure to instruct on an element of an enhancement invokes federal constitutional issues, reversal is not per se. Instead, the failure to instruct on an element is reviewed under the Chapman standard. (People v. Mayfield (1997) 14 Cal.4th 668, 774 [when instruction omits required definition or misdescribes an element, it is harmless only if beyond a reasonable doubt that error did not contribute to verdict]; accord, People v. Newby (2008) 167 Cal.App.4th 1341, 1348.)
Although the court here gave no specific instruction directed at the great-bodily-injury enhancement, the jury was told that one of the enhancements was whether the defendants had personally inflicted great bodily injury on Lindsay. The jury was also told that the great-bodily-injury enhancements required a general criminal intent, and that “[t]o be guilty of these … enhancements, a person must not only commit the prohibited act, but must do so intentionally and on purpose.…” The jury was told twice that great bodily injury “means significant or substantial physical injury,” “an injury that is greater than minor or moderate harm.” This is the same language found in CALCRIM No. 3160.
If the jury concluded that the defendants were guilty of attempted murder, the verdict form asked the jury to determine whether the defendants did “personally inflict great bodily injury upon” Lindsay in violation of section 12022.7, subdivision (a). In addition, the jury was told that, with respect to all counts charged, the prosecution bore the burden of proof, which was identified as beyond a reasonable doubt. CALCRIM No. 3160 adds little to this charge, except that it instructs the jury how to evaluate evidence of a group assault, which tells the jury it does not have to link an injury to a particular defendant.
Given all of the instructions, and having concluded on proper instruction that each of the defendants had attempted to murder Lindsay and that each had done so for the benefit of a criminal street gang, the jury was highly unlikely to have reached a different outcome had it been instructed pursuant to CALCRIM No. 3160. The missing components of CALCRIM No. 3160, that part which cannot be found in the full charge to the jury, is that related to group beatings. Here, Lindsay testified that he had been kicked and/or hit by all three defendants, identifying specific blows from each defendant. P. Lopez hit Lindsay in the face at least twice and told him to shut up and close his eyes. Lucero kicked Lindsay. A. Lopez hit Lindsay in the chest. A. Lopez and P. Lopez had swelling and redness observable on their hands immediately after the assault. Lindsay testified he was getting hit and kicked from all sides. Had the instruction on group assault been given, we have no doubt that the jury would have found the elements of a group beating: (1) each of the defendants participated in the assault; (2) each physically used force on Lindsay; and (3) the force used either individually or in combination inflicted serious and substantial harm. On this record, we conclude that any error in failing to give CALCRIM No. 3160 is harmless beyond a reasonable doubt.
IV. Alleged coaching of witness
The defendants contend that they were denied due process and a fair trial because Lindsay was coached by Deputy Teso to change his trial testimony. Teso escorted Lindsay to trial each day and therefore had an opportunity to speak with him outside of the courtroom. In addition, Teso was the designated investigator and the gang expert for the prosecution so he was aware of the legal issues and proof needed in the prosecution case. On May 7, 2007, Lindsay testified that A. Lopez had come to the Stanislaus County Jail from state prison a “week before” October 19, 2006. The next day, on May 8, 2007, Lindsay testified that A. Lopez came from state prison, “probably” 10 days before the 19th, “maybe the 9th, 8th, something of that week.” The jail records established that A. Lopez arrived at the jail on October 12, exactly seven days prior to the 19th.
In admitting the huila, the trial court found the statement in it that A. Lopez had arrived on October 12 was information only A. Lopez would have in his possession. The defendants argue that Lindsay’s initial testimony that A. Lopez came to the jail the week before October 19 equates to testimony that A. Lopez arrived at the jail precisely on October 12 and therefore undercuts the trial court’s finding with respect to the huila. The defendants also argue that Lindsay’s change of testimony on this key point supports an inference that Lindsay changed his testimony after being coached by Teso. We disagree.
At trial the bulk of the argument presented on this issue related to the prosecution gaining additional discovery from the conversations between Teso and Lindsay. The defense asked that a different security escort be assigned. When the court refused to do so, the defense asked that all conversations between Teso and Lindsay be taped. The court denied the request but did order that if any new evidence was discovered, the prosecution was to provide it immediately to the defense. During cross-examination, the defense focused on the same issue. Lindsay was asked whether he told Teso things about gang life. Lindsay said he and Teso talked about lots of different things, but not about gang life. Lindsay said they talked mainly about his feelings and his fear of testifying. Teso also testified that he and Lindsay talked to each other during the transport, but not about gangs or gang involvement. Despite an opportunity to do so, the defense failed to cross-examine either Teso or Lindsay about whether they discussed Lindsay’s change in testimony concerning the date A. Lopez arrived at the jail.
We have already concluded that, notwithstanding the trial court’s reasoning, the huila was properly authenticated. Second, we are not certain Lindsay’s initial statement that A. Lopez came to the jail the week before October 19 must be read to mean he arrived on an exact date: October 12. The term “one week ago” does not always mean a specific calendar date exactly seven days prior but instead establishes a time frame. Although Lindsay’s later testimony appears to expand the time frame to 10 days, the change is not significant enough to undercut the trial court’s finding regarding the admission of the huila.
Even if we were to conclude that Lindsay actually changed his testimony to assist the prosecution, there is nothing in the record to suggest that Teso coached Lindsay to do so. There are many possibilities to explain the slight change in Lindsay’s testimony. For example, he may simply have remembered the time frame differently. Upon being questioned by the prosecution a second time, Lindsay might have been less confident in his earlier recollection. Further, Lindsay, who had transcripts and records in his possession, might have reached his own conclusion about the impact his prior testimony had on the prosecution and decided to change it to benefit the prosecutor’s case. Any of these reasons are just as plausible as concluding that Teso coached Lindsay. (See People v. Gray (2005) 37 Cal.4th 168, 230; In re Avena (1996) 12 Cal.4th 694, 738; People v. Williams (1988) 44 Cal.3d 883, 933.)
V. Failure to give voir dire oath
The defendants contend that the trial court erred when it failed to administer the oath to prospective jurors prior to voir dire as required by Code of Civil Procedure section 232, subdivision (a). The record is silent about whether the first panel of prospective jurors was sworn before the start of voir dire on April 26, 2007. It does affirmatively establish that on May 1 at the start of proceedings, and after a second panel of jurors had been called up, the court administered the oath to all prospective jurors in the audience, and again administered the oath when a third group of jurors was provided on May 2. Some of the jurors impaneled, however, were part of the first panel and initially questioned by the court apparently without the oath having been administered. Assuming that the oath was not given, this was error. However, as the California Supreme Court observed in People v. Carter (2005) 36 Cal.4th 1114, 1176-1177, such error is not structural unless there is evidence that one or more of the jurors impaneled was biased against the defendants, of which there is no evidence here.
The statute provides: “(a) Prior to the examination of prospective trial jurors in the panel assigned for voir dire, the following perjury acknowledgement and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement ‘I do’: [¶] ‘Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution.’” (Code Civ. Proc., § 232, subd. (a).)
We agree with the Attorney General that the error has been forfeited by a failure to raise it when the error could have been corrected. The applicable rule is well established in California jurisprudence. An appellate court will not consider procedural defects or erroneous rulings that could have been but were not presented to the trial court, particularly when the error is one that could have been easily corrected by the trial court had it been brought to the trial court’s attention. (People v. Saunders (1993) 5 Cal.4th 580, 589-590; see also People v. Staten (2000) 24 Cal.4th 434, 451-452 [alleged improper voir dire questions]; see also Estelle v. Williams (1976) 425 U.S. 501, 508, fn. 3 [obligation exists to call errors, even those involving constitutional rights, to court’s attention so court will have opportunity to remedy error].) Other jurisdictions have reached the same conclusion. (Gober v. State (1981) 247 Ga. 652, 655 [278 S.E.2d 386] [court declined to reverse conviction because voir dire was not conducted under oath where counsel failed to object]; State v. Glaros (1960) 170 Ohio.St. 471 [166 N.E.2d 379] [failure to administer oath to prospective jurors not grounds for reversal where no objection made in trial court]; Wheeler v. State (Ala.Crim.App. 2005) 939 So.2d 51, 53 [same].) This is a perfect example of an error that could have been corrected had it timely been brought to the trial court’s attention. Since it was not, the defendants have forfeited their claim.
In an effort to avoid a claim that counsel rendered ineffective representation by failing to object to the court’s alleged oversight, we also conclude that no prejudice resulted from the failure to administer the oath at the start of voir dire. (People v. Carter, supra, 36 Cal.4th at pp. 1176-1177 [failure to administer voir dire oath reviewed for prejudice]; Strickland v. Washington (1984) 466 U.S. 668, 697 [when defendant cannot establish prejudice, unnecessary to consider whether counsel’s performance deficient].) Although there was no pretrial questionnaire completed under oath, as was done in People v. Lewis (2001) 25 Cal.4th 610, 629-930, the court did inform the prospective jurors that “[i]f there is any fact or any reason why any of you might be biased or prejudiced in any way, you must disclose such reasons when you are asked to do so. It is your duty to make this disclosure.” The court explained the purpose of voir dire and emphasized the need to question the jurors in order to ensure a fair and impartial jury.
There is no indication that any of the jurors who were ultimately impaneled were untruthful when answering the court’s questions. After being sworn, the prospective jurors were subjected to extensive and probing voir dire by the attorneys. There is no evidence the attorneys’ questioning was inadequate to test the fairness of the potential jurors. (See People v. Lewis, supra, 25 Cal.4th at p. 631.) When the jury panel was selected, the jurors were sworn pursuant to Code of Civil Procedure, section 232, subdivision (b).
The defendants argue that the failure of three prospective jurors to reveal information when questioned during voir dire suggests that all prospective jurors were unaware of their duty to answer the voir dire questions truthfully. We believe this evidence suggests just the opposite. All three of these jurors came forward on their own before trial started with additional information concerning their ability to serve as jurors. One juror said her neighbor was a probation officer who had previously told her about the danger of criminal gangs and, although she did not think it would bother her, she was afraid to be on the jury. She had not mentioned before that her neighbor was a probation officer but volunteered this information later. A second juror came forward with a letter from a chiropractor saying the juror would be unable to sit for long periods due to a back condition. The juror had not brought up the disability during voir dire. During questioning about his disability, the juror volunteered that he had been a motorcycle gang member for seven years. The juror said, “I probably should have come clean about this,” suggesting he knew he was obligated to answer questions truthfully. An alternate juror said she was having trouble sleeping and was frightened. Although she had mentioned before that she had been burglarized and that she lived in a gang-infested neighborhood, she had not mentioned her sleeping problems or her intense fear of serving on the jury. All three were dismissed and did not serve on the jury. These jurors took their duty seriously and voluntarily revealed information they came to see as relevant to their ability to serve as impartial jurors, even though they had not revealed it earlier. There is no evidence the defendants were prejudiced because the initial part of voir dire was not conducted under oath.
VI. Taking verdicts and polling jurors
P. Lopez, joined by his codefendants, contends that the trial court did not properly poll the jurors in violation of sections 1149 and 1163. The Attorney General counters that the issue has been forfeited because there was no objection when the verdicts were taken.
The sections read: “When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.” (§ 1163.) “When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.” (§ 1149.)
We agree that the issue has been forfeited. The trial court asked the foreperson if a verdict had been reached and, when given an affirmative answer, had the court clerk read the verdicts of all three defendants. At the end, the clerk asked the jury as to each of the defendants, “is this your verdict, so say you one, so say you all?” The jury responded with a unanimous affirmation of the verdicts for each individual defendant. The defendants then requested that the jury be polled. The clerk asked each individual juror, as to each defendant, whether this was or is “your verdict.” As to all three defendants, all 12 jurors answered, “yes.” No counsel made any objection to the manner in which the verdicts were taken. “Where a jury is incompletely polled and no request is made for correcting the error, such further polling may be deemed waived by defendant, who cannot sit idly by and then claim error on appeal when the inadvertence could have readily been corrected upon his merely directing the attention of the court thereto.” (People v. Lessard (1962) 58 Cal.2d 447, 452; accord, People v. Wright (1990) 52 Cal.3d 367, 415; People v. Flynn (1963) 217 Cal.App.2d 289, 295 [right to assert defects in manner of polling is forfeited by failure to object to method employed by trial court].)
Even if the issue has not been forfeited, we conclude there was no error in the taking of the verdicts. Each juror was asked individually if the verdicts read by the court clerk were their individual verdicts and each answered in the affirmative. This is sufficient. (People v. Mestas (1967) 253 Cal.App.2d 780, 786.) The different verb tense used by the court clerk in taking the verdicts is of no significance. Further, even if there was error, there is no prejudice. “[T]he trial court’s failure to ask each juror if the verdict was his or her [own] requires reversal only if appellant were prejudiced by that error.” (People v. Masajo (1996) 41 Cal.App.4th 1335, 1340.) There is nothing in this record to suggest that the verdict was not unanimous or that any juror was coerced into voting for conviction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, J., Kane, J.