Opinion
B223806
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH RUBEN MACIAS et al., Defendants and Appellants.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Ruben Macias. Jennifer Lynne Peabody, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Rodriguez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA351553)
APPEAL from judgments of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed with directions as to appellant Joseph Ruben Macias. Affirmed as to appellant Jonathan Rodriguez.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Ruben Macias.
Jennifer Lynne Peabody, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Rodriguez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Jonathan Rodriguez appeals from the judgment entered following his convictions by jury on three counts of second degree robbery (Pen. Code, § 211; counts 1 - 3) for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court sentenced Rodriguez to prison for 17 years. Joseph Ruben Macias appeals from the judgment entered following his convictions by jury on five counts of second degree robbery (Pen. Code, § 211; counts 4 - 8) for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)) with a finding a principal personally used a firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1)). The court sentenced Macias to prison for 26 years. As to Rodriguez, we affirm the judgment. As to Macias, we affirm the judgment with directions.
FACTUAL SUMMARY
1. People's Evidence.
a. The December 21, 2008, Robberies (Counts 1 - 3, and 4 - 6).
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa)),the evidence established that on December 21, 2008, after 10:00 p.m., Rodriguez and Macias robbed Jose Cervantes (counts 1 and 4, respectively), David Dominguez (counts 2 and 5, respectively), and Oswaldo Velasquez (counts 3 and 6, respectively) at gunpoint in Los Angeles. The robberies occurred inside a taco truck or trailer in which the above victims were working. Macias entered the truck and robbed the victims while Rodriguez was outside acting as a lookout.
Counts 6 through 10 in the information were renumbered counts 4 through 8, respectively, in the verdict forms; accordingly, the sentencing court referred to the counts as counts 4 through 8, respectively. Similarly, we refer to those counts as counts 4 through 8, respectively.
Dominguez testified as follows. The two suspects appeared to be cholos, i.e., gang members. Dominguez had not previously seen suspect No. 1, the robber who entered the truck. However, Dominguez also testified that when he saw suspect No. 1's face, it was familiar and Dominguez may have seen suspect No. 1 near the truck. Dominguez did not notice whether suspect No. 1 had tattoos or any unusual features on his neck. Dominguez did not see suspect No. 2 doing anything with his hands. On December 21, 2008, suspect No. 2 was "down below outside."
Dominguez did not see either suspect wearing a cap with the word Sereno on it, and both suspects were bald. The two suspects left in a car driven by someone else. Dominguez had not been a victim in any other robberies during which Cervantes and Velasquez were present. At trial, Dominguez denied he saw suspect No. 1 or suspect No. 2 in the courtroom.
On January 16, 2009, police talked with Dominguez about identifying the December 21, 2008, robbers, and Dominquez selected Macias's photograph in a showup folder. Dominguez told the detective who showed him the folder that Macias looked familiar and Dominguez "thought it was him." At the time, Dominguez believed the person depicted in the photograph was suspect No. 1, i.e., the robber who entered the truck. However, at trial, the following colloquy occurred between the prosecutor and Dominguez: "Q Now when you say that person looks familiar, does that person look familiar to being one of the suspects who robbed you on December 21, 2008? [¶] A This is not the person who robbed me."
After Dominguez selected Macias's photograph, Dominguez wrote on an admonition form that Dominguez recognized the photograph because he saw suspect No. 1 twice in the truck and suspect No. 1 demanded food. Dominguez also wrote, " 'Two times, [suspect No. 1] didn't pay. He intimidated all of us. Sometimes he asked for money. I recognize him 100 percent.' " Dominguez also wrote, " 'It's him.' "
On January 16, 2009, Dominguez selected Rodriguez's photograph in a second showup folder as depicting someone who seemed similar to suspect No. 2. After selecting the photograph, Dominguez wrote concerning that identification, " 'I know him because he came with [the person depicted in photograph] number 3. He also asked for money. He didn't pay. He frightened all of us. He intimidated all of us because of his gang. 100 percent.' " Dominguez also wrote, "I know him." Dominguez believed the person depicted in the photograph Dominguez selected from the second showup folder was suspect No. 2.
At trial, the prosecutor asked whether Dominguez told the detective that suspect No. 2 robbed Dominguez, and Dominguez replied "This is the one that was, that was down below." However, Dominguez also testified he was not certain the person depicted in the photograph he selected was suspect No. 2. Dominguez repeatedly testified during direct examination that the above robberies occurred on December 21, 2008. However, once during cross-examination, he testified the robberies occurred on December 29, 2008.
Velasquez testified concerning the December 21, 2008, robberies that suspect No. 2, the robber who was outside the truck, wore a cap which said El Sereno. Velasquez denied seeing suspect No. 2 do anything with his hands, then testified suspect No. 2 just moved them to convey " 'hurry up' " and waved his hands. Suspect No. 2 was not in the courtroom. The persons in the courtroom had been at the truck on other occasions but were not the robbers. Velasquez feared retaliation.
Cervantes testified concerning the December 21, 2008, robberies that he saw two persons come to rob people in the truck. The suspect who entered the truck had a tattoo on his neck. Cervantes had seen the two persons about four times a week during the previous three weeks. Cervantes told police that photograph No. 3 in defense exhibit B depicted one of the December 21, 2008, robbers. Cervantes did not see the robbers in the courtroom. At time of trial, Cervantes worked at the truck and feared retaliation from cholos.
Los Angeles Police Detective Jose Rios testified that on January 16, 2009, Rios showed Dominguez a photographic showup folder pertaining to the December 21, 2008, robberies and containing a photograph depicting Macias. Dominguez identified that photograph as depicting a robber. Rios showed Dominguez a second folder containing a photograph depicting Rodriguez, and Dominguez identified that photograph as depicting another robber.
b. The December 22, 2008, Robbery (Count 7).
Jose Mojica testified that on December 22, 2008, sometime after 6:00 p.m., he was working inside the truck, which was parked at the site of the previous robberies. Macias, pointing a gun at Mojica, robbed him through the emergency window of the truck (count 7). Macias was wearing a hoodie pullover, but Mojica could see Macias's entire face. Mojica had seen Macias two or three times before, and Mojica recognized him on December 22, 2008. On that date, Macias was dressed like a cholo or gang member. At trial, Mojica positively identified Macias as the person who robbed Mojica on December 22, 2008.
Velasquez testified that on December 22, 2008, Velasquez and Mojica were working, and two people came and robbed Mojica. One of the two robbers came to the truck window and simulated a gun. The other robber was on the side of the truck. The December 22, 2008, robbers were the December 21, 2008, robbers, and the robber who simulated a gun on December 22, 2008, was the robber who entered the truck on December 21, 2008.
During trial, other crimes evidence was presented which appellants rely on in support of their arguments, in part 2 of our Discussion, that the jury erroneously relied on other crimes evidence to convict appellants. For example, other crimes evidence was presented concerning a robbery which occurred on December 29, 2008 (although Macias's trial counsel suggested the robbery occurred on December 30, 2008). In particular, during Macias's cross-examination of Mojica, Macias's counsel indicated he wanted to talk about what Macias's counsel referred to as the second incident, i.e., the one which, according to Macias's counsel, occurred on December 30, 2008. (By "second incident," Macias's counsel appeared to refer to the second gunpoint robbery of Mojica.) Mojica indicated he did not work that day but either Cervantes or Velasquez called Mojica and reported they had been robbed. Mojica drove to the truck and sat in his car. Mojica saw a person approach the emergency window of the truck, then leave and enter an alley. Mojica testified, ". . . I was sitting in my car. And when he came to take the money and the food, then they left." Mojica was too far away to see a gun. Mojica recorded the license plate number of a white Ford Mustang. The person did not enter the Mustang. The Mustang was registered to Rodriguez's sister at an address where Rodriguez lived. As indicated post, this robbery in fact occurred on December 29, 2008.
Other crimes evidence was also presented concerning Macias's theft of food from Mojica on December 29, 2008. In particular, Mojica testified he was robbed on a Monday and, during that same week, Macias returned unarmed to the truck with three men and took food without paying for it, i.e., Macias stole food from Mojica. Mojica was present at the truck and working that day. Mojica was afraid when Macias came, but Macias did not threaten him. The second robbery with Macias occurred the day after Macias took the food.
c. The December 30, 2008, Robbery (Count 8).
Mojica testified that, about a week after the first robbery, which occurred on December 22, 2008, Macias again robbed Mojica at gunpoint at the emergency window of the truck while Mojica was inside the trailer (count 8). Macias pulled out a semiautomatic gun but pointed it down. Macias was dressed like a cholo. At trial, Mojica positively identified Macias as the person who robbed Mojica again.
Mojica, apparently referring to the December 30, 2008, robbery, also testified concerning a "third robbery with the Mustang." The third robbery was the last. During the third robbery, Macias asked for money and Mojica complied. At that very moment, Mojica did not see the gun. After Mojica gave Macias the money, Macias walked away from the emergency window and entered the Mustang. Mojica had recorded the license plate of the Mustang the day before. (See fn. 3, ante.) Mojica was certain that the robber during the last robbery and during the robbery that occurred the day before was the same person.
During redirect examination, Mojica testified as follows. After December 22, 2008, Macias robbed Mojica a second time. Mojica did not remember the exact date of the second robbery of Mojica, but it occurred perhaps two or three days after the December 22, 2008, robbery. Mojica also suggested the second robbery of Mojica occurred on December 27, 2008.
Mojica also testified as follows. After the first robbery, Mojica saw Macias again at Mojica's business. When Mojica saw Macias that next time, Macias told Mojica to give Macias the money. Macias was armed with a gun and Mojica gave him money. Mojica reported the first and second robberies to the police, and when he reported the second robbery, he feared retaliation.
The following colloquy later occurred between the prosecutor and Mojica: "Q And on the third day, on the second robbery, did he ask for food? [¶] A No. He just said, " 'Give me the money.' " [¶] Q And on the second robbery, did he have a gun? [¶] A The second robbery, yes. [¶] Q And did he show you the gun? [¶] A Yes." During recross-examination, Mojica testified that the last time Mojica saw Macias, money was taken and Mojica was working as a cashier inside the truck. Moreover, the last time money was taken, Mojica did not actually see a gun.
Velasquez testified he had no doubt appellants were the December 30, 2008, robbers. Prior to December 30, 2008, Velasquez had seen Macias almost every day, and had seen Rodriguez often. Velasquez told a detective that a photograph in People's exhibit 11-B depicted one of the December 30, 2008, robbers, and Velasquez wrote on an identification form " 'At the time he came asking for food, we gave them to him. But he came some other time asking for money, and he had a gun.' " Velasquez testified that this statement was referring to the fact Macias had a gun during the last robbery. However, Velasquez gave conflicting testimony regarding whether Macias had a gun.
Velasquez also told a detective that a photograph in People's exhibit 10-B depicted one of the December 30, 2008, robbers. Velasquez feared retaliation when he identified the photograph. Robberies occurred on December 21, December 22, and December 30, 2008. Velasquez had been robbed a number of times.
d. Gang Evidence.
Los Angeles Police Officer Rudolph Rivera, a gang expert, testified to the effect the present offenses were done in furtherance, and for the benefit, of a gang, and with specific intent to benefit the gang. Rivera denied Macias had tattoos.
2. Defense Evidence.
In Macias's defense, Los Angeles Police Officer James Le testified concerning the December 21, 2008, robberies that Cervantes, Dominguez, and Velasquez told Le that there were four suspects, i.e., one who entered the truck, another outside the truck, and two in a waiting vehicle. According to Le, Cervantes, Dominguez, and Velasquez told Le that the robber who entered the truck had a tattoo on his neck. Los Angeles Police Officer Richard Contreras testified Mojica told Contreras that "the suspects on [December 22, 2008] were the same suspects from the day before, the robbery and also the vehicle." In Rodriguez's defense, a defense investigator testified Dominguez described to the investigator an event which occurred on December 21, 2008. Dominguez told the investigator that police brought photographs of suspects, Dominguez selected two photographs of each suspect, but Dominguez was not certain the persons depicted were the persons who robbed him.
ISSUES
Rodriguez claims (1) there was insufficient evidence to support his convictions on counts 1 through 3, (2) the trial court erred by giving to the jury CALJIC Nos. 4.71 and 17.01, and (3) the gang expert's testimony was inadmissible. Macias claims (1) there was insufficient evidence to support his convictions on counts 4 through 7, and insufficient evidence a principal personally used a firearm as to count 8, (2) the trial court erred by giving CALJIC No. 4.71, and (3) his sentencing minute order and the abstract of judgment must be corrected.
DISCUSSION
1. Sufficient Evidence Supported Appellants' Convictions and the Firearm Enhancement.
Appellants claim there is insufficient evidence supporting their respective convictions (counts 1 through 3 as to Rodriguez; counts 4 through 7 as to Macias) because there is insufficient identification evidence. Macias also claims there was insufficient evidence a principal personally used a gun for purposes of the firearm enhancement pertaining to count 8. We reject appellants' claims.
Identification of a defendant by a single eyewitness may be sufficient to prove the defendant's identity as the perpetrator of a crime. Moreover, a testifying witness's extrajudicial identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant's guilt even if the witness does not confirm the identification in court. In fact, an extrajudicial identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the extrajudicial identification. An extrajudicial identification has greater probative value than an in-court identification made after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness's mind. (People v. Boyer (2006) 38 Cal.4th 412, 479-480 (Boyer).) We employ the substantial evidence standard to evaluate the sufficiency of an extrajudicial identification to support a conviction, whether the witness's identification is merely not confirmed, or is repudiated, by the witness at trial. (People v. Cuevas (1995) 12 Cal.4th 252, 257, 271-275 (Cuevas.))
There is no dispute someone committed the offenses alleged in counts 1 through 7; the issue as to those counts is identity. There is also no dispute Macias committed the offense alleged in count 8, but only whether there was sufficient evidence a principal personally used a firearm. We have set forth the pertinent facts and will not repeat them here. As to counts 1 through 3, and 4 through 6, Dominguez, inter alia, gave police an extrajudicial identification of appellants as the December 21, 2008, robbers. The jury was able to evaluate, in light of all the evidence, the significance of the fact Dominguez did not confirm that identification at trial, including the evidence all the witnesses may have feared retaliation for their testimony.
As to count 7, Mojica identified Macias in a photographic lineup and, at trial, Mojica positively identified Macias as the person who robbed Mojica on December 22, 2008. As to the firearm enhancement pertaining to count 8, there was ample testimony from Mojica that on December 30, 2008, Macias, a principal, personally used a gun when robbing Mojica. The fact there may have been conflicting evidence on these issues does not compel a contrary conclusion.
We conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellants committed the crimes of which they were respectively convicted in counts 1 through 7, and that a principal personally used a firearm for purposes of the firearm enhancement pertaining to Macias's conviction on count 8. (Cf. People v. Boyer, supra, 38 Cal.4th at pp. 479-480; Cuevas, supra, 12 Cal.4th 252, 257, 271-275; Ochoa, supra, 6 Cal.4th at p. 1206.)
2. The Court Did Not Err by Giving CALJIC No. 4.71 or CALJIC No. 17.01.
a. Pertinent Facts.
During the prosecutor's opening statement, the prosecutor indicated there were three crimes committed on three different dates, i.e., December 21, December 22, and December 30, 2008. Cervantes, Velasquez, and Dominguez were the victims during the December 21, 2008, incident, and Mojica was the victim of the December 22 and December 30, 2008, incidents. During Macias's opening statement, Macias indicated there were three incidents, i.e., one about 10:25 p.m. on December 21, 2008, the second at 8:40 p.m. on December 22, 2008, and the third about 9:20 p.m. on December 30, 2008. During opening statement, Rodriguez indicated he was charged with one incident which occurred on December 21, 2008.
In its final charge to the jury, the court, using CALJIC No. 1.06, instructed the jury that Rodriguez was accused of committing the crimes alleged in counts 1 through 3 against Cervantes, Dominguez, and Velasquez, respectively, "on or about" December 21, 2008. The instruction also stated Macias was accused of committing (1) the crimes alleged in counts 4 through 6 against Cervantes, Dominguez, and Velasquez, respectively, "on or about" December 21, 2008, (2) the crime alleged in count 7 against Mojica "on or about" December 22, 2008, and (3) the crime alleged in count 8 against Mojica "on or about" December 30, 2008. The instruction further stated, "In order to make your responsibilities more manageable and to avoid confusion, I will provide you with individual verdict forms for each count which reflect the specifics applicable to that count." The court also gave CALJIC No. 4.71, concerning allegations a crime was committed "on or about" a certain date, and CALJIC No. 17.01, a unanimity instruction.
CALJIC No. 4.71 stated, "When, as in this case, it is alleged that the crime charged was committed 'on or about' a certain date, if you find that the crime was committed, it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date."
CALJIC No. 17.01 stated, "Defendants Macias and Rodriguez are accused in Counts 1-8 of the Information of having committed specific crimes against named victims on or about certain dates. The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction on Counts 1-8 may be based. Defendants Macias and Rodriguez may be found guilty if the proof shows beyond a reasonable doubt that the particular defendant committed any one or more of the acts. However, in order to return a verdict of guilty as to a charged crime, all jurors must agree that the particular defendant committed the same act. It is not necessary that you state in your verdict the particular act upon which you have reached agreement."
Jury argument followed. During his opening argument, the prosecutor stated, "We have three robberies. I like to call them the first, second, and third. We have the December 21st, 2008 robbery; the December 22, 2008; and the December 30th, 2008." The prosecutor's argument as to the facts pertaining to the above "three robberies" was based on the facts of the robberies committed on the above three dates as set forth in the Factual Summary.
During opening argument, the prosecutor commented Mojica testified " '. . . they came and got food in between the robberies,' " but the prosecutor never referred to that act of getting food as a robbery or as a basis for convicting appellants. The prosecutor never referred to the robbery of Cervantes and Velasquez (which Mojica testified occurred on December 29, 2008, when he was sitting in his car), as a basis for convicting appellants.
During jury argument, Macias's counsel stated, "In this particular case, I think it is really important to keep the three dates - December 21st, 22nd and December 30 - very separate from each other." Rodriguez's counsel argued, "Now, you have heard other testimony that [Rodriguez] may have been involved in the incident that occurred on December 30 or may have even been involved in another incident that was at the Mojica taco truck. That is not what is at issue here. I know it is hard to think that out of your mind, but we are only dealing with whether or not my client committed the robberies on December 21st, 2008. Not any other date."
During closing argument, the prosecutor, discussing the fear instilled by the gang, referred to (1) the "first robbery," (2) an attack by Macias against Mojica "the next day" during which Macias pointed a gun at Mojica, (3) a third attack which occurred "the next week" when persons came for food only, and (4) "a fourth attack the following day" involving appellants. After the jury retired to deliberate, the court told counsel to review the verdict forms to "make sure the dates and the alleged victims and the counts are correct as well as the allegations."
On January 25, 2010, jury deliberations commenced. The jury later requested a readback of the testimony of Cervantes, Dominguez, Velasquez, and Mojica, and requested an "English translation of the six pack statement." The readback occurred and deliberations resumed. The jury later sent to the court a note asking for the dates that the above four "witnesses/victims saw the suspects at the Mojica taco trailer." On the note, and in the general area of the above request, was the following notation: "12/21/09 [¶] 12/22/09 [¶] 12/30/09." (Sic.) The note then asked, "Did each of these witnesses see or not see Suspect 1 or Suspect 2 on 12/21, 12/22, or 12/30?"
On January 26, 2010, the court called the case and later gave, in pertinent part, the following reply to the jury's note: "You are to decide the facts based upon all of the evidence. [¶] If you have any specific request for information and/or readback, please notify the Court." The jury later sent to the court a note which asked, "What does 'on or about' mean exactly regarding the counts/charges for those suspects?" The court, outside the presence of the jury and counsel for the parties, proposed to reply, in pertinent part, "The phrase 'on or about' is defined in Instruction 4.71. You should review that instruction as well as Instruction 17.01." Counsel for the parties indicated the proposed reply was acceptable, and the court later gave the reply as proposed. The jury later reached their verdicts.
Neither the verdict forms, nor the jury's later oral verdicts, expressly used the word "on" or the phrase "on or about" when referring to dates of offenses. For example, the verdict forms and verdicts pertaining to count 1 referred to the "alleged date of December 21, 2008, as charged in Count 1 of the Information" and Cervantes as the victim. The verdict forms and verdicts as to the remaining counts are the same, except that, the following counts, dates in 2008, and victims were specified: counts 2 and 5, December 21 (Dominguez); counts 3 and 6, December 21 (Velasquez); count 4, December 21 (Cervantes); count 7, December 22 (Mojica); and count 8, December 30 (Mojica).
However, the information contained the "on or about" language.
b. Analysis.
Appellants claim the giving of CALJIC No. 4.71 was error. Rodriguez additionally claims the giving of CALJIC No. 17.01 was error. For the reasons discussed below, we conclude no prejudicial error occurred.
As previously discussed, there was substantial evidence that (1) on December 21, 2008, appellants robbed Cervantes, Dominguez, and Velasquez (counts 1 - 6), and Macias personally used a firearm during those robberies, (2) on December 22, 2008, Macias personally robbed Mojica at gunpoint (count 7), and (3) on December 30, 2008, Macias again personally robbed Mojica at gunpoint (count 8).
The giving of CALJIC No. 4.71 was proper as to counts 1 through 6 since, during direct examination, Dominguez repeatedly testified those offenses occurred on December 21, 2008, but once during cross-examination he testified they occurred on December 29, 2008. Moreover, appellants, discussing the "on or about" language of CALJIC No. 4.71, are really arguing the jury might have convicted appellants based on evidence of other crimes which occurred, not on, but "about," December 21, December 22, and/or December 30, 2008. However, as discussed below, the other crimes, and the dates on which they occurred, were too dissimilar from those committed on the above three dates to permit the jury to rely on the other crimes to convict appellants, and even if the giving of CALJIC Nos. 4.71 and 17.01 was error, it does not follow we must reverse the judgments.
We discuss below counts 1 through 6, and other crimes evidence. We then discuss counts 7 and 8, and other crimes evidence. The other crimes evidence includes (1) evidence of the December 29, 2008, robberies of Cervantes and Velasquez (which occurred when Mojica was seated in his car) and (2) the evidence of Macias's December 29, 2008, theft of food from Mojica. Finally, we discuss portions of the record indicating the alleged instructional error was not prejudicial.
(i) Counts 1 through 6, and Other Crimes Evidence.
As to counts 1 through 3 alleging Rodriguez robbed Cervantes, Dominguez, and Velasquez, respectively, and counts 4 through 6 alleging Macias robbed those same victims, respectively, we note the following.
There was substantial evidence that on December 21, 2008, appellants robbed Cervantes, Dominguez, and Velasquez (counts 1 - 6), and that Macias personally used a firearm during those robberies, and the jury reasonably could not have concluded that one of those victims was so robbed without concluding all three victims were so robbed. On the other hand, there was substantial evidence that on December 29, 2008, Macias, unarmed and with three unidentified men, stole food from Mojica alone (see fn. 3, ante). On the latter date, no robbery was committed since the theft was not accomplished by force or fear. (Pen. Code, § 211.) Accordingly, and notwithstanding appellants' suggestions to the contrary, the jury reasonably could not have relied on the above December 29, 2008, events to convict appellants on counts 1 through 6 for the robberies of Cervantes, Dominguez, and Velasquez based on a theory those robberies occurred "about" December 21, 2008.
As mentioned, there was substantial evidence that on December 21, 2008, appellants robbed Cervantes, Dominguez, and Velasquez, and that Macias personally used a firearm, and the jury reasonably must have concluded appellants robbed all three victims. However, there was substantial evidence that on December 29, 2008, Macias alone robbed only Cervantes and Velasquez, and no evidence Macias used a gun during that robbery. This was the robbery Mojica witnessed from his car (see fn. 3, ante). Thus, notwithstanding appellants' suggestions to the contrary, the jury reasonably could not have relied on the above December 29, 2008, robberies to convict appellants on counts 1 through 6 for committing robberies of Cervantes, Dominguez, and Velasquez "about" December 21, 2008.
Again, there was substantial evidence that on December 21, 2008, appellants robbed Cervantes, Dominguez, and Velasquez, with personal use of a firearm by Macias. However, there was substantial evidence that on December 30, 2008, appellants robbed Mojica (and perhaps Cervantes). Notwithstanding appellants' suggestions to the contrary, the jury reasonably could not have relied on the above December 30, 2008, robberies to convict appellants on counts 1 through 6 for robbing Cervantes, Dominguez, and Velasquez "about" December 21, 2008.
(ii) Counts 7 and 8, and Other Crimes Evidence.
As to count 7, there was substantial evidence that on December 22, 2008, Macias robbed Mojica at gunpoint. On the other hand, there was substantial evidence that on December 29, 2008, Macias, unarmed and with three unidentified men, stole food from Mojica. As mentioned, on the latter date, no robbery was committed since the theft was not accomplished by force or fear. The jury reasonably could not have relied on the above December 29, 2008, events to convict Macias on count 7 for a robbery of Mojica occurring "about" December 22, 2008.
There was substantial evidence that on December 22, 2008, Macias robbed Mojica at gunpoint. On the other hand, there was substantial evidence that on December 29, 2008, Macias alone robbed only Cervantes and Velasquez (when Mojica was in his car), and no evidence Macias used a gun during that robbery. The jury reasonably could not have relied on the above December 29, 2008, events to convict Macias on count 7 for a robbery of Mojica occurring "about" December 22, 2008. The analysis in this and the preceding paragraph equally applies to count 8. A similar analysis applies to the extent there was other crimes evidence other than that discussed above.
(iii) The Record Indicates No Prejudicial Instructional Error Occurred.
As mentioned, the parties' opening statements and jury arguments, and the verdict forms and oral verdicts, all focused on crimes committed on December 21, December 22, and/or December 30, 2008, and not on crimes committed "on or about" those dates. When the jury retired, the court asked the parties to check the verdict forms; neither appellant objected to them.
It is true the jury sent notes to the court asking for the dates on which Mojica, Cervantes, Dominguez, and Velasquez saw the suspects at the truck and whether each of those witnesses saw either suspect on December 21, December 22, or December 30. However, although the jury's note suggested a conscientious effort by the jury to clarify and correlate the dates of various events according to the evidence, the note did not expressly refer to any specific date other than December 21, December 22, and December 30, 2008, did not expressly refer to a crime(s) or robbery(ies) allegedly committed on a date(s) other than one of those three dates, and did not demonstrate the jury convicted appellant(s) based on a robbery(ies) which occurred on a date(s) other than one of those three dates. Rodriguez concedes "For each charged date, there was only one robbery and one potential incident which could constitute the charged offense." Macias joins Rodriguez's argument. No prejudicial instructional error occurred. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 .)
People v. Gavin (1971) 21 Cal.App.3d 408 (Gavin),relied on by appellants, is distinguishable from the present case. In Gavin, the defendant was charged with two counts: possession of amphetamine, and possession of LSD. The People's evidence established the defendant jointly and constructively possessed amphetamine and LSD in her home on October 24 and October 25, 1969, but the defendant's testimony established she physically possessed amphetamine (but not LSD) on another occasion, i.e., on September 27, 1969, when she buried a bag of amphetamine in her yard. The court gave to the jury CALJIC No. 4.71 with its "on or about" language. During deliberations, the jury sent notes to the court, and one said, " 'Read that portion of testimony related to what the defendant buried. What kind of drugs. Was LSD in the bag?' " (Gavin, at p. 416, italics added.) The jury convicted the defendant of possession of amphetamine but acquitted her of possession of LSD. Gavin reversed said conviction on the ground the giving of CALJIC No. 4.71 was confusing, resulting in fundamental unfairness. (Gavin, at p. 418.)
Gavin is distinguishable from the present case because, unlike the jury notes in the present case, the above mentioned jury note in Gavin explicitly referred to other crimes evidence, i.e., the defendant's alleged criminal conduct in burying drugs. That note, by its terms, demonstrated the jury was considering alleged conduct of the defendant other than the conduct the defendant allegedly committed on October 24 and October 25, 1969. As Gavin observed, "the jury indicated it was willing to consider convicting the defendant for the uncharged offense." (Gavin, supra, 21 Cal.App.3d at p. 419, italics added.)
3. The Gang Expert's Testimony Was Admissible.
a. Pertinent Facts.
During direct examination by the People, Rivera, a gang expert testifying concerning the criminal street gang allegations, opined that appellants were members of the El Sereno gang. The prosecutor later asked a hypothetical question as follows: "Q By [The Prosecutor:] [¶] . . . [¶] Assume the taco trailer is located near the corner of Alhambra Avenue and Hollister in Los Angeles, California. [¶] Assume defendants Macias and Rodriguez had been seen by at least one of the taco trailer employees at the taco trailer location a number of times. The defendants' faces are familiar to at least one of the taco trailer employees. [¶] . . . [¶] Q Both defendants went to rob the Mojica taco trailer in the evening hours when it was open for business to the public. [¶] . . . [¶] At least one of the defendants was armed with a gun . . . during the December 30 robbery. [¶] During the robbery, there were customers present when the defendants approached to rob the taco trailer. [¶] The defendants fled the robbery in a vehicle that had its lights on. [¶] At least one of the defendants would take food without paying for it."
The colloquy continued, "Q Have you spoken to the detective and arresting officers in this case? [¶] A I have. [¶] Q Are you familiar with the facts of this case? [¶] A Yes. [¶] Q Have you testified before on this case? [¶] A As an expert in the prelim, yes, sir. [¶] . . . [¶] Q [By the Prosecutor:] I'll ask you an opinion. Taking money at gunpoint in public at a taco trailer without attempt to hide your identity, is that done in furtherance of, for benefit of a gang, with the specific intent to benefit the gang? [¶] A Yes, sir. It is." (Italics added.)
The following then occurred: "Q And what is the basis of your opinion? [¶] A I base my opinion on this. The definition of a gang states that it is two or more individuals who collectively or individually engage in a pattern of criminal activity which creates fear, intimidation within the community that they live. By these two individuals, assuming this crime occurred, these two individuals committed this crime at gunpoint, not attempting to cover their face to wear a bandana or a hat, do anything to mask their identity, they are definitely want [sic]people to know who did it and why they did it. [¶] And the fact that the taco truck is in an area that is controlled solely by the El Sereno criminal street gang, it shows me that they want this taco truck and not only the taco truck that is at that corner but the people that are buying tacos from that corner to know who runs the neighborhood, 'and this is what we are going to do and we are not going to cover up and try to hide what we are.' [¶] That is where the fear and intimidation comes in. I definitely believe it is done for furtherance and for the benefit of the criminal street gang."
b. Analysis.
Rodriguez claims Rivera's above testimony usurped the jury's function, depriving Rodriguez of various constitutional rights. Macias joins the claim. In essence, appellants argue Rivera's testimony was inadmissible because it was a response to the prosecutor's questions which were improper because they were impermissibly evidence-specific and called for inadmissible expert opinion on ultimate issues to be decided by the trier of fact, i.e., that appellants committed "the charged offense" of December 21, 2008, "for the benefit" of the gang and with "the specific intent to further a criminal street gang." Appellants maintain the questions were impermissibly evidence-specific because they expressly identified appellants and expressly referred to specific evidence concerning their conduct and the circumstances in which it occurred. We reject appellants' claims.
Recently, in People v. Vang (Oct. 31, 2011, S184212) 52 Cal.4th 1038 (Vang), a gang expert, in response to hypothetical questions posed by the prosecutor, testified an assault would benefit a named gang and was committed in association with the gang and at the direction of the gang's members. The expert also testified the attack was gang motivated. The appellate court in Vang had stated that, " 'The only apparent differences between the trial testimony and the hypothetical were the names of the parties. In the hypothetical question, the prosecution called the victim "young baby gangster" instead of [the victim's real name] and called the four defendants "three baby gangsters and one O.G.," that is, "original gangster." ' " (Vang, supra, 52 Cal.4th 1038 [p. 6] [2011 Cal. Lexis 10964, at p. *10].) The appellate court held "the trial court erred in permitting the expert to respond to hypothetical questions the prosecutor asked because the questions closely tracked the evidence in a manner that was only thinly disguised." (Vang, supra, 52 Cal.4th 1038 [p. 1] [2011 Cal. Lexis 10964, at p. *1].)
In Vang, our Supreme Court concluded the prosecutor's hypothetical questions, although based on evidence-specific assumptions, were properly based on evidence at trial and the expert's opinion testimony in response was admissible and not rendered inadmissible by the fact, if true, that the testimony pertained to an ultimate issue(s) to be decided by the trier of fact. (Vang, supra, 52 Cal.4th 1038 [pp. 3-13] [2011 Cal. Lexis 10964, at pp. *4-*22].)
We view Vang as controlling. The prosecutor essentially posed hypothetical questions which asked Rivera to assume various facts which were based on the evidence. The prosecutor's questions were proper and, in response, Rivera properly gave his opinion and explained it. No error or violation of appellants' Fifth Amendment or Sixth Amendment rights occurred.
In light of this conclusion, there is no need to reach the issue of whether appellants waived the above discussed issues by failing to raise them below, or whether any such failure constituted ineffective assistance of counsel.
4. Macias's Sentencing Minute Order and Abstract of Judgment Must Be Corrected.
Respondent concedes the sentencing minute order and abstract of judgment pertaining to Macias must be corrected to reflect the court imposed a three-year middle term, not a three-year upper term, on count 8 (originally numbered count 10 in the information, see fn. 1, ante). We accept the concession. (Cf. People v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3; People v. Solorzano (1978) 84 Cal.App.3d 413, 415, 417.)
In light of our resolution of Rodriguez's claims in this appeal, we reject his claims that prejudicial cumulative error occurred.
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DISPOSITION
The judgment of each appellant is affirmed. The trial court is directed to correct the April 7, 2010, sentencing minute order, and the abstract of judgment, pertaining to appellant Macias to reflect that the three-year prison term which the trial court imposed on his conviction for the second degree robbery which he committed against Jose Mojica on or about December 30, 2008 (count 10 in the information; renumbered as count 8 in the jury's verdict) was a middle term.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
ALDRICH, J.