Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge., Los Angeles County Super. Ct. No. BA287781
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Joshua Mansion.
Neil Rosenbaum, under appointment by the Court of Appeal, for Defendant and Appellant Dwayne Wheeler.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Gang members and defendants Joshua Mansion and Dwayne Wheeler were tried together for the murder of Loli Castaneda (Pen. Code, § 187, subd. (a)) and the attempted murder of Carlos Avalos (§§ 664, 187, subd. (a)), based on a nighttime shooting incident outside a grocery store. The jury found defendants guilty of both crimes with multiple special findings, including defendants committed the murder for the benefit of a criminal street gang under section 186.22, subdivision (b)(4), and they committed the attempted murder willfully, deliberately, and with premeditation. The jury also found defendant Mansion personally and intentionally discharged a handgun to cause Castaneda’s death in violation of section 12022.53, subdivision (d), and he personally discharged a handgun in committing the attempted murder of Avalos in violation of section 12022.53, subdivision (d). The jury found defendant Wheeler personally and intentionally discharged a handgun with the specific intent of promoting criminal conduct by a gang member while committing both offenses in violation of section 12022.53, subdivisions (d) and (e).
All further statutory references are to the Penal Code unless noted otherwise.
Defendants received prison sentences of 85 years to life, consisting of 50 years to life for the Castaneda murder (25 years to life on the underlying offense, plus 25 years for the gun use enhancement) and a consecutive sentence of 35 years to life for the attempted murder of Avalos (a life term on the underlying offense, plus 20 years for the gun use enhancement and 15 years for the gang enhancement).
In defendants’ timely appeals, they jointly contend: (1) the trial court violated their state and federal constitutional right to a fair and impartial jury by refusing to grant the Batson/Wheeler motions by the defense; (2) the conviction for attempted murder cannot stand because there was insufficient evidence of defendants’ specific intent to kill both victims under either the transferred intent doctrine or the “kill zone” theory; (3) the trial court’s refusal to grant defendants’ joint request to bifurcate trial of the gang allegations violated their due process rights; (4) the prosecution’s gang expert offered impermissible opinion testimony as to the ultimate issue of whether the underlying offenses were committed for the benefit of a criminal street gang, in violation of defendants’ Sixth Amendment right to a fair trial; (5) the admission of prosecution evidence that members of defendants’ gang had threatened a prosecution witness violated defendants’ due process rights; (6) cumulative error requires the reversal of defendants’ convictions; and (7) the imposition of consecutive sentences violated their Sixth Amendment right to a jury trial under (Cunningham v. California (2007) 549 U .S. ___ [127 S.Ct. 856, 860] (Cunningham). Defendant Wheeler separately contends section 12022.53, which provides for a special punishment enhancement for weapon use in the commission of crimes to benefit criminal street gangs, is unconstitutional because it violates the constitutional guarantees of equal protection and due process. We disagree with all these contentions and affirm.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
STATEMENT OF FACTS
On July 28, 2005, at approximately 11:30 p.m., Avalos and his friend Castaneda drove to a supermarket near Adams Boulevard and Vermont Avenue in Los Angeles, and parked in a space near the entrance. Neither victim had any gang affiliation. While inside the market, Avalos saw defendants. Defendants were initially behind them at the check stand. Defendant Wheeler wore a red baseball cap, a red T-shirt, and a red bandanna around his neck; defendant Mansion wore a dark shirt.
Defendants left the store before Castaneda and Avalos. As the victims walked towards Castaneda’s Explorer, defendant Wheeler confronted them in the parking lot, demanding to know if they were from the 18th Street gang. Castaneda and Avalos repeatedly denied being gang members and kept walking to their vehicle. Neither said anything to antagonize defendants. Defendant Wheeler did not appear to be drunk or joking; he spoke clearly. The victims entered the Explorer, with Castaneda in the driver seat and Avalos in the front passenger seat. Defendant Mansion opened the door to a white sports utility vehicle parked next to the Explorer’s passenger side. Defendant Wheeler remained just outside the Explorer’s passenger door, insisting the victims were from the 18th Street gang. Suddenly, as Castaneda began to drive out of the parking space, a gunshot was fired through the passenger side window.
Avalos did not see who fired the shot; however, the gun was approximately six inches away from Avalos. It was pointed at both victims, who were sitting next to each other. When Avalos saw the gun, he covered his face with his hand. He suffered injuries to his hand from the glass fragments. The bullet, however, missed Avalos and hit Castaneda, who told his friend, “Yo, B. I’ve been hit.” The Explorer, which Castaneda had put in drive, continued to coast out of the parking place. Avalos tried to steer the vehicle as Castaneda gasped for breath, unable to drive. Eventually, Avalos put the Explorer in park and ran around the vehicle to assist his friend. Castaneda was bleeding profusely from the right side of his stomach area. Avalos covered the wound and called the 9-1-1 operator.
Avalos was sure, however, that the shooter was not dressed in red, like defendant Wheeler was at the time.
Police officers who happened to be driving nearby came to the scene and called for an ambulance, which arrived a few minutes later and took Castaneda to the hospital, where he died after emergency surgery. Castaneda had received a bullet wound that severed his liver and seriously damaged other internal organs, causing him to bleed to death. The bullet had entered Castaneda’s right side, just below his chest area and eventually passed outside the left side of his body. Meanwhile, at the shooting scene, Avalos told the police that a Black male had fired the shot, after challenging them for being members of the 18th Street gang. The shooter was in the company of a White male (defendant Mansion was African-American; defendant Wheeler was White). Avalos also described the sports utility vehicle in which the shooter and his accomplice had fled.
Approximately four hours later, the police took Avalos to a residential neighborhood to view potential suspects. Avalos identified defendant Mansion. He also identified the Jeep Liberty at that location as the getaway vehicle.
Detective Brent Honore testified that approximately 11:45 p.m., he and his partner Chris Wren were in a marked patrol car driving toward the intersection of Vermont and Adams, when a citizen flagged them down by the supermarket parking lot. They approached Avalos, who was tending to the wounded Castaneda. The latter was bleeding and lapsing in and out of consciousness. The detective corroborated Avalos’s testimony concerning the description of the suspects and their vehicle.
Police officer John Richardson responded to the shooting scene. From the description of the suspects and their getaway car, along with Avalos’s statement that there had been an 18th Street gang challenge, Officer Richardson believed the suspects were members of the Rolling 20’s Bloods street gang. The two gangs were enemies. At that time, their respective members were engaging in “hot and heavy” retaliatory shootings. Upon receiving information that a vehicle matching the getaway car had been discovered, Officer Richardson went to Lasalle Avenue and 27th Street. At approximately 1:10 a.m., the officer saw defendant Mansion and the white Jeep Liberty. Defendant Mansion was taken into custody; he did not appear to be drunk.
On the afternoon of July 29, Officer Pablo Soto arrested defendant Wheeler approximately 10 to 15 blocks away from the shooting scene, at an apartment building that was a known hangout for the Rolling 20’s gang. Defendant Wheeler, who wore a grey shirt, was in the courtyard attending a barbecue with other Rolling 20’s members. The day before the shooting, defendant Wheeler was at the Loren Miller Park with defendant Mansion and various other males, including two Rolling 20’s members. He wore a red “do-rag” and red shirt at the time. Defendant Mansion was dressed in a similar fashion. In a consensual encounter, defendant Wheeler admitted to being a member of the Rolling 20’s. Defendant Mansion had tattoos on his arms signifying “Crip Killer.” A tattoo on his back said, “Twenties.”
Detective Erik Armstrong testified that defendants were known gang members. At approximately 4:00 p.m. on July 29, the detective found a loaded .44 caliber Magnum handgun in the glove compartment of an abandoned Oldsmobile Delta parked at 2656 Lasalle Avenue. The bullet recovered from the floorboard of the Explorer had been fired from that handgun. Inside the Oldsmobile, the officer also found a bag of ammunition for the handgun and a red T-shirt. The car’s doors were unlocked and one of its front windows was broken. It had been parked in that space for months, behind an apartment complex where defendant Mansion’s girlfriend lived.
Also on July 29, the police searched defendant Wheeler’s residence pursuant to a warrant. They found a red bandanna in a bedroom with graffiti on the walls, such as “Rolling 20’s” and “Crip killer.” Detective David Garrido found an expended bullet on the driver side floorboard of Castaneda’s Explorer, and there was evidence that the bullet had hit the driver’s side doorframe before falling onto the floorboard.
Following their arrests, defendants were placed together in a jail cell equipped with a listening device. Audiotapes of jail conversations between defendants were played to the jury. On the evening of July 29, defendant Mansion expressed his fear that a police search of the cars parked at his house would incriminate them. An audiotape recorded defendants’ statement that “Jeannette” was the driver at the time of the shooting. It also recorded defendants’ conversation in which they discussed fabricating defenses, as well as attributing the shooting to “the driver.” A recorded conversation included defendant Mansion’s admission to being the shooter, and defendant Wheeler’s admission to telling his accomplice to shoot. The two also discussed creating an alibi based on intoxication.
Jeannette Cherry testified under a grant of immunity. She knew defendant Mansion by his moniker of “Trouble” and defendant Wheeler by his moniker of “Deuce.” She owned the Jeep Liberty used in the shooting. Defendant Mansion told her that he was a member of the Rolling 20’s. On the afternoon of the shooting, at the invitation of defendant Mansion, she and a girlfriend drove to Loren Miller Park, where defendants were seen by police the day before. At approximately 5:00 p.m., she drove defendants to a supermarket to buy food and beer for a picnic defendants wanted to have at the park. She drove them back to the park in her Jeep. While Cherry waited in her vehicle with her girlfriend, Thomas Miller joined her in the car to listen to music. Later that night, defendants returned to her Jeep and asked Cherry to take them to the supermarket to buy pans for cooking.
Cherry agreed. Defendant Mansion sat in the front passenger seat of the Jeep. Her girlfriend, Miller, and defendant Wheeler sat in the back. She parked near the supermarket entrance, and defendants went inside. The others waited in the Jeep. The next thing she knew, her front passenger door slammed. She saw defendant Mansion pointing a gun toward the Explorer parked next to the Jeep, with defendant Wheeler standing next to him. She saw and heard the gunshot defendant Mansion fired into the Explorer’s passenger window. Within a few seconds, defendants and Miller, who was outside the Jeep at the time of the shooting, ran back into the Jeep. Defendant Mansion sat in the front passenger seat, holding the gun on his lap. It was a revolver. A few days before, defendant Mansion showed it to her and said he had bought it for his “private use.” She did not know he had taken it with him that night; she had previously told him not to bring it into her car.
Immediately upon entering her Jeep, defendants ordered her to drive away. She drove them to Miller’s house. When they arrived, Cherry heard defendant Wheeler tell defendant Mansion that “the guy was a ‘Fake 18.’” Defendant Mansion was excited, not remorseful. Soon afterwards, seven or eight Rolling 20’s members arrived. They told her to drive away in her Jeep, but she refused. Meanwhile, defendants began to cook on the barbecue. Cherry left the Jeep and got a ride home from someone else.
Some time afterwards, a person identifying himself as defendant Wheeler’s brother told her to report her Jeep stolen. She did not do so. Nor did she immediately report the shooting to the police. She was afraid to do so because she and her daughter were living in Rolling 20’s territory and “was told that we were going to have problems,” which she understood as a threat of violence. She was concerned about her own safety and the safety of “everyone in the house.” On August 4, she went to the police department because her Jeep had been impounded. She told the police that she did not know the circumstances of the shooting. On October 11, however, when the police interviewed her, she gave a full account. At that time, she identified defendants from photographic lineups and stated that defendant Mansion had fired the gun.
Miller testified that he was 13 years old at the time of the shooting. He too was testifying under a grant of immunity. He lived in the same neighborhood as defendants and was acquainted with both of them. Miller was an affiliate of the Rolling 20’s with the moniker, “Turtle.” That is, he was not a member of the gang, but he associated with its members. Miller knew defendant Mansion was a member of the Rolling 20’s. Loren Miller Park is a Rolling 20’s hangout. On the night of the shooting, Miller was at Loren Miller Park. He saw defendants there, drinking with other Rolling 20’s members.
Miller went to the supermarket in Cherry’s Jeep with defendants and “another girl.” Cherry drove; defendant Mansion was in the front passenger seat; Miller was in the back with the others. They went to get some pans for a barbecue that night in honor of a Rolling 20’s member who had died. Defendants entered the market together, while the others remained in the car. After a while, defendants came out of the store with two “Latino guys.” Defendant Wheeler was talking to them. Cherry’s Jeep was parked next to Castaneda’s Explorer. Defendant Wheeler was standing next to the Explorer’s passenger side window. Miller heard defendant Wheeler say, “Are you down with the Fake-teens?” He understood the statement to be a disrespectful reference to the 18th Street gang.
The two “Latino guys” entered the Explorer without threatening defendants. Defendant Wheeler told defendant Mansion to “Shoot that fool.” Defendant Mansion retrieved a gun from under the front passenger seat and walked back to the passenger side of the Explorer where defendant Wheeler stood. The Explorer’s engine had started and its lights were on. From a distance of approximately two feet, defendant Mansion fired the gun through the Explorer’s passenger window and ran back to the Jeep. Defendant Mansion put the gun back under the seat and directed Cherry to drive them to Miller’s apartment. When they arrived, defendants began preparations for a barbecue.
DISCUSSION
Batson/Wheeler Claim
Defendants contend the trial court violated their state and federal constitutional right to a fair and impartial jury by refusing to grant their two Batson/Wheeler motions as to prosecution challenges to African-American potential jurors. Wheeler, supra, 22 Cal.3d 258 held that a prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group membership violates a criminal defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. Batson, supra, 476 U.S. 79 held, among other things, that such a practice violates a defendant’s right to equal protection of the laws under the United States Constitution’s Fourteenth Amendment. As we explain, we find no constitutional error as to either ruling.
On the second day of voir dire, after the parties exercised numerous peremptory strikes, the prosecutor exercised its seventh strike against prospective Juror No. 10, an African-American woman. At that point, the defense jointly brought a Batson/Wheeler motion. As the trial court found, the prosecution had already stricken two African-Americans, a male and a female, leaving two African-Americans in the jury box and one more in the venire. The trial court expressed some doubt as to Juror No. 10’s race because of her light complexion, but “out of an abundance of caution,” found a prima facie case of discrimination had been made.
The prosecutor asked whether the finding was directed to “that particular juror,” and the trial court said, “yes.” The prosecutor offered the following explanation for his peremptory challenge: During voir dire, the juror stated that her uncle had been fatally shot by police officers and the officers lied about the shooting. “So I believe that may affect her ability to be fair and impartial and unbiased towards police officers.” The trial court overruled the Batson/Wheeler motion, finding the explanation race-neutral and supported by the evidence.
The second Batson/Wheeler motion concerned prospective Juror No. 12, an African-American woman. During voir dire, she explained that she worked for the school district teaching mentally disabled students. She had relatives and a friend who worked for law enforcement, including a deputy sheriff at the courthouse where defendants’ trial was being conducted. She was also a crime victim, but expressed no dissatisfaction with the police. Regarding any personal or family contacts with criminal street gang members, the prospective juror explained that she grew up in the territory of a Crip gang and knew “a lot of them.” She was never a member of a gang, but went to school with gang members. She still sees childhood Crip acquaintances in her neighborhood, but does not maintain any close associations with gang members. The prospective juror also knows a lot of Blood gang members because her parents live in their territory. She estimated she had acquaintances with 20 Blood gang members and approximately the same number from the Crips. One had been accused of murder. Additionally, prospective Juror No. 12 stated she had dated “an 18th Street gangster in junior high school,” but no longer saw him. She nevertheless thought she could be fair to both parties.
When the prosecution exercised a peremptory strike against prospective Juror No. 12, the defense jointly made a motion under Batson/Wheeler. The trial court disagreed with defense counsel’s assertion that the strike had eliminated all African-Americans from the jury panel, finding two African-Americans remained. However, it found a prima facie case had been made as to the stricken juror. The prosecutor explained that the prospective juror’s extensive contacts with gang members would cause her to be overly sympathetic to defendants. The trial court found that explanation race-neutral and denied the motion.
We review defendants’ claims according to the United States Supreme Court’s governing standard: “‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Citations. Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. Citations.’ (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson).) Third, once the prosecutor produces a neutral explanation for the challenges, the trial court must evaluate the ‘“persuasiveness of the justification”’ and ‘“determine whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Citation.’” (People v. Schmeck (2005) 37 Cal.4th 240, 267 (Schmeck).)
Here, because the trial court elicited the prosecutor’s reasons for the peremptory challenges, the issue of whether defendants established a prima facie case is moot. (Schmeck, supra, 37 Cal.4th at p. 267, citing Hernandez v. New York (1991) 500 U.S. 352, 359; People v. Welch (1999) 20 Cal.4th 701, 745-746.) Accordingly, we will proceed to the third step of the Batson analysis—whether the prosecutor’s justifications were pretextual. In so doing, “we rely on and defer to our trial courts to distinguish bona fide reasons from the shams that hide improper motives (People v. Boyette [(2002)] 29 Cal.4th [381,] 422), and that a party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive.” (People v. Gray (2005) 37 Cal.4th 168, 189.) “[A]n appellate court independently reviews a trial court’s conclusion on whether the prosecutor stated adequate neutral reasons for the peremptory challenges in question: It amounts to the resolution of a pure question of law [citation] . . . .” (People v. Alvarez (1996) 14 Cal.4th 155, 198, fn. 9.) At the same time, we review for substantial evidence a finding that the prosecutor’s stated reasons were genuine: “It is plainly the resolution of a pure question of fact.” (Id. at p. 198.)
As to the first Batson/Wheeler motion, following the peremptory strike of prospective Juror No. 10, defendants argue the trial court erred by failing to require the prosecutor to justify his challenges as to the two African-American previously stricken. That argument fails because the record does not show a Batson/Wheeler motion directed at the other two African-American prospective jurors. Moreover, the record is clear that the trial court’s prima facie finding of discriminatory intent was made solely with regard to Juror No. 10. Indeed, the trial court did so in response to the prosecutor’s request for clarification on that very point. The prosecutor limited his explanation accordingly.
Contrary to defendants’ assertion, a Batson/Wheeler objection based on a perceived pattern of striking jurors from a particular protected class does not necessarily implicate all the previously stricken jurors. “When a party makes a Wheeler motion, the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias.” (People v. Avila (2006) 38 Cal.4th 491, 549.) “[W]hen a trial court determines that the defendant has made a prima facie showing that a particular prospective juror has been challenged because of such bias, it need not ask the prosecutor to justify his challenges to other prospective jurors of the same group for which the Batson/Wheeler motion has been denied.” (Ibid.) As our colleagues in the Third District recently explained, “a Wheeler motion questions whether a particular prospective juror has been challenged because of group bias. Before the prosecution can be compelled to disclose its reasons for challenging a particular juror, the defendant must present facts from which an inference of discrimination against that juror can be drawn. A trial court may properly determine as to a particular prospective juror that the facts do not permit an inference of discrimination, even as it makes a contrary determination with respect to other prospective jurors.” (People v. Phillips (2007) 147 Cal.App.4th 810, 818.)
Here, not only did the defense fail to identify anyone other than prospective Juror No. 10 as being the subject of their joint motion, but the trial court limited its prima facie finding as to that particular prospective juror. It was therefore proper for the prosecution to limit its explanation of nondiscriminatory intent as to that prospective juror.
Additionally, with regard to both Batson/Wheeler rulings, defendants argue the trial court failed to comply with the third step of the Batson protocol—its evaluation of the persuasiveness of the prosecutor’s justification. (See, e.g., Schmeck, supra, 37 Cal.4th at p. 267.) Our review of the record, however, shows the trial court found the prosecutor’s justifications were genuine and not pretextual. In connection with overruling the first motion, the trial court found the prosecutor’s explanation—that the prospective juror demonstrated a potential anti-police bias—was race-neutral and supported by the evidence. Although the court did not state that it found the prosecutor’s explanation credible, that finding was implicit. Similarly, in denying the second Batson/Wheeler motion based on an acceptance of the prosecutor’s well-supported, race-neutral explanation that the challenged juror’s extensive contacts with gang members supported a reasonable inference of bias in favor of defendants, it was implicit that the court found the explanation credible.
Accordingly, we hold there was no Batson/Wheeler error.
Attempted Murder Convictions
Defendants contend there was insufficient evidence to support their attempted murder convictions because there was no legitimate theory that could support a finding of concurrent specific intent to kill both victims. We disagree. Defendants’ argument is premised on the mistaken assertion that they could have only intended to kill one victim because only one shot was fired. As we explain, there was strong evidence to support the jury’s findings that defendants specifically intended to kill Avalos and Castaneda. Indeed, there were two independent theories on which the jury could have properly based their verdicts: (1) specific intent to kill Avalos with intent to kill Castaneda supplied by the transferred intent doctrine; and (2) concurrent intent to kill both victims by firing at two persons in the same line of fire or “kill zone.”
In reviewing a challenge of the sufficiency of evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin); People v. Marshall (1997) 15 Cal.4th 1, 34.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The California Supreme Court has held, “[r]eversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
“‘The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citations.]’ (People v. Bland (2002) 28 Cal.4th 313, 327 (Bland).) In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) It follows that to support a conviction for a surviving victim, the prosecution must prove each defendant “acted with specific intent to kill that victim.” (Ibid.) “The mental state required for attempted murder is further distinguished from the mental state required for murder in that the doctrine of ‘transferred intent’ applies to murder but not attempted murder. [Citation.] ‘In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder.’ [Citation.] In contrast, the doctrine of transferred intent does not apply to attempted murder: ‘To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else.’ [Citation.] Whether the defendant acted with specific intent to kill ‘must be judged separately as to each alleged victim.’ [Citation.]” (Id. at pp. 739-740.)
Here, as defendants concede, it would have been permissible for the jury to find defendant Mansion intentionally shot at Avalos (at defendant Wheeler’s instigation), but missed and killed Castaneda instead. Under that scenario, it would be entirely proper to apply the transferred intent doctrine to supply the specific intent to kill Castaneda. “‘Under the classic formulation of California’s common law doctrine of transferred intent, a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had “‘the fatal blow reached the person for whom intended.’” [Citation.] In such a factual setting, the defendant is deemed as culpable as if he had accomplished what he set out to do.’ [¶] In [People v. Scott (1996) 14 Cal.4th 544], we upheld convictions of both the murder of an unintended victim who was killed and attempted murder of the intended target, who survived.” (Bland, supra, 28 Cal.4th at pp. 320-321.) Nothing in the record indicates the jury misapplied the transferred intent doctrine, using it to supply the specific intent to kill the survivor, Avalos. As given, the instruction on that theory plainly and unambiguously applied to the murder count.
Nevertheless, even absent a transferred intent theory, our courts have recognized circumstances that can reasonably support a finding that a defendant had a concurrent intent to kill multiple victims. For instance, as we have explained, “[t]he act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .’ [Citation.] ‘The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.’” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 (Chinchilla).) More specifically, “the firing of a single bullet in the direction of two people is sufficient to support convictions on two counts of attempted murder.” (Ibid.) Thus, in Chinchilla we held that a reasonable jury could infer from the fact that a defendant fired a single gunshot at two police officers, one of whom was crouched in front of the other, that the defendant intended to kill both. (Id. at p. 691.)
Chinchilla is materially indistinguishable from this case. The prosecution established that defendants harassed both victims in the belief Castaneda and Avalos were members of a rival gang who had strayed into Rolling 20’s territory. Defendants saw both victims enter the Explorer’s front seats. Defendant Mansion retrieved a .44 caliber handgun from the Jeep. Defendant Wheeler told his comrade to “shoot that fool.” Defendant Mansion stood next to the passenger side window, less than a foot from Avalos, and fired. From the bullet’s trajectory, it is clear that both victims were in the line of fire, just like the police officers in Chinchilla. The jury’s finding of concurrent intents to kill both Avalos and Castaneda was, therefore, proper under California law. (Chinchilla, supra, 52 Cal.App.4th at pp. 690-691.)
Our Supreme Court has affirmed the Chinchilla rationale in connection with what it has termed the “kill zone” doctrine. (Smith, supra, 37 Cal.4th at pp. 744-746.) The “kill zone” doctrine, which originated in Bland, “simply recognizes that a shooter may be convicted of multiple counts of attempted murder on a ‘kill zone’ theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. [Citation.] As we explained in Bland, ‘this concurrent intent [i.e., “kill zone”] theory is not a legal doctrine requiring special jury instructions . . . . Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’ (Bland, supra, 28 Cal.4th at p. 331, fn. 6.)” (Smith, supra, 37 Cal.4th at pp. 745-746.)
Contrary to defendants’ argument, Smith made it clear that the discharge of a single bullet can support two convictions of attempted murder under the totality of the circumstances shown by the evidence, based on a defendant’s act of firing at two persons—there, a mother and her baby—“both of whom were in his direct line of fire.” (Smith, supra, 37 Cal.4th at p. 745.) Thus, as the Smith court found, “evidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both.” (Id. at p. 743.) We find Smith, like Chinchilla, applies squarely to the facts of defendants’ case and supports the jury’s findings that defendants intended to kill Avalos.
Nor are defendants correct in arguing that the trial court misstated the law in giving its instruction on concurrent intent. The court’s attempted murder instruction was based in part on the Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 600 instruction; however, for the concurrent intent aspect of the instruction, the court used a modified version of CALJIC No. 8.66.1 as follows: “A person who primarily intends to kill one person may also concurrently intend to kill other persons within a particular zone of risk. The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer that the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity. [¶] Whether a perpetrator actually intended to kill Carlos Avalos either as a primary target or as someone within the zone of risk is an issue to be decided by you.”
Defendants mistakenly contend the instruction’s second sentence, as quoted above, somehow required a finding of concurrent intent, regardless of whether the jury might have found it equally reasonable that defendant Mansion intended only to kill Castaneda. The plain meaning of the instruction, however, consistent with Supreme Court precedent in Bland, merely allowed for a finding of concurrent intent where the evidence supported a reasonable inference that Avalos was targeted, either primarily or as someone in the line of fire. Nothing in the instruction would have precluded a reasonable juror from finding that the only intended target was Castaneda. Nor did the instruction intimate that a finding of a single intent to kill directed at Castaneda would necessarily support a finding of concurrent intent to kill both victims. Moreover, it should be noted that nothing in the evidence presented below supported a reason why defendants would single out Castaneda, rather than Avalos, for death.
Bifurcation of Gang Allegations
Defendants’ contend the trial court’s refusal to grant their joint request to bifurcate trial of the gang allegations violated their due process rights. We disagree.
Section 186.22, subdivision (b)(1), as alleged against defendants, provides an enhanced sentence for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” In People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez), our Supreme Court held that a gang enhancement may be bifurcated from the guilt phase of trial under the discretion of the trial court. (Id. at p. 1048.) The legal basis for bifurcation of a prior conviction allegation also permits bifurcation of the gang allegation. (Id. at p. 1049.) However, “the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Id. at p. 1048.)
Evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Gang evidence may be relevant to “identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Hernandez, supra, 33 Cal.4th at p. 1049.) “To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050.) However, “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1050.)
Accordingly, a trial court’s discretion to deny a bifurcation motion is broader than its discretion to admit gang evidence when the gang allegation is not charged. (Hernandez, supra, 33 Cal.4th at p. 1050.) Bifurcation is appropriate when the evidence admitted solely to prove the gang allegation is so minimally probative on the charged offense, and so inflammatory in comparison, that it threatens to sway the jury to convict regardless of actual guilt. (Id. at p. 1051.) The defendant has the burden of clearly establishing a substantial danger of prejudice requiring bifurcation. (Ibid.)
Defendants failed to carry their burden. As the trial court understood, the issues of defendants’ gang affiliation and involvement were inextricably intertwined with the murder and attempted murder charges. The trial court carefully assessed the motion under Evidence Code section 352, finding the gang evidence’s probative value outweighed any undue prejudice. None of the gang evidence was tangential as to the murder charge; nor was any particularly inflammatory. As such, the trial court’s ruling was well within its discretion.
Defendants’ appellate invocation of the due process clause is similarly lacking in merit. We discern nothing in defendants’ argument that implicates the federal Constitution. “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida), citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913.) We consider the “very narrow due process argument on appeal” that “the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process.” (Partida, supra, 37 Cal.4th at p. 435.) Here, we find no due process violation for the same reasons we found no prejudicial error under state law.
Opinion Testimony by Gang Expert
We do not agree with defendants’ argument that the prosecution’s gang expert offered impermissible opinion testimony as to the ultimate issue of whether the underlying offenses were committed for the benefit of a criminal street gang in violation of defendants’ Sixth Amendment right to a fair trial.
Los Angeles Police Department Officer Stacey Szymkowiak testified as a gang expert in defendants’ trial. She was familiar with the Rolling 20’s gang, which is a Blood gang—as such, Crip gangs are enemies. The Rolling 20’s have approximately 280 members and claim as its territory the area from Vermont Avenue on the east to the Interstate 10 Freeway in the north, Crenshaw Boulevard on the west, and Jefferson Boulevard on the south. The officer was also familiar with the 18th Street gang, a rival gang of the Rolling 20’s. The supermarket where the shooting occurred was within Rolling 20’s territory. The Rolling 20’s have identifying symbols and hand signals. Loren Miller Park is inside its territory; it is a gang hangout and serves as the gang’s “home base.”
According to the expert, the primary activities of the Rolling 20’s are gang graffiti, stealing cars, committing automobile burglaries and robberies, selling narcotics, possessing handguns, and engaging in shootings and murders. The expert testified as to three predicate felonies committed by Rolling 20’s members. There had been an ongoing feud between the 18th Street and Rolling 20’s gangs involving numerous reciprocal acts of violence—shootings and killings—since at least 2003.
Officer Szymkowiak testified that defendant Mansion has admitted to being a Rolling 20’s member. His moniker is “Trouble.” He has three tattoos identifying himself as a member of that gang. Defendant Wheeler was also a Rolling 20’s member, based on his admission and the gang-related clothing he wore. Defendant Wheeler had also admitted responsibility for gang graffiti containing his moniker. Prosecution witness Miller was an “associate” of the gang, meaning that he regularly hangs out with members of that gang—but Miller had not been formally accepted by, or “jumped into,” the gang.
Numerous Rolling 20’s had stated that if they found rival gang members in their territory, they would shoot, kill, or otherwise “take care of them.” Gangs consider it very important to protect their territory because their income from narcotics sales depends on maintaining territorial control. Potential witnesses against gang members often refuse to sign a police report or come to court for fear of retaliation.
Based on a hypothetical set of facts that closely resembled the prosecution case, the expert opined that the shooting would have been “committed in association with, for the benefit of the Rolling 20’s street gang.” The expert based her opinion on a number of factors, including that defendants referred to their victims by a derogatory term for a rival gang, which indicated that the shooting was intended to protect Rolling 20’s territory from enemy gang incursion. Also, defendant Wheeler was dressed in gang attire. When the victims ignored the verbal gang challenge, gang culture required a violent response from defendants.
A trial court has discretion concerning the admission of evidence, including gang expert testimony. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1194 (Carter).) An expert may offer opinion testimony if the subject is sufficiently beyond common experience so that it would assist the trier of fact. (Evid. Code, § 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew).) Expert testimony “concerning the culture, habits, and psychology of gangs” meets this criterion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez); see Gardeley, supra, 14 Cal.4th at p. 617.) A properly qualified gang expert may therefore, where appropriate, testify to a wide variety of matters, including whether and how a crime was committed to benefit or promote a gang; the motivation for a particular crime; a gang’s culture, habits, size, composition, existence, territory, and primary activities; a defendant’s gang membership; rivalries between gangs; and gang graffiti, tattoos, hand signs, and attire. (Killebrew, supra, 103 Cal.App.4th at pp. 656-657, and authorities cited therein; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).)
A gang expert’s testimony may properly be admitted to prove motive and intent. (See Carter, supra, 30 Cal.4th at p. 1196; People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Expert testimony has repeatedly been offered to prove the “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang.” (Killebrew, supra, 103 Cal.App.4th p. 657.) An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jury’s common experience. (Valdez, supra, 58 Cal.App.4th at pp. 507-509.) Indeed, courts have repeatedly found the admission of similar examples of expert testimony proper. (E.g., People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209 [expert could properly opine that the defendant committed shooting to reestablish and bolster his reputation within the gang, reestablish the gang within the community, and send a message to the community and rival gangs]; Valdez, supra, 58 Cal.App.4th at pp. 508-510 [trial court properly admitted gang expert’s testimony that a caravan of members from seven gangs had acted on the date of the charged offense for the benefit of all seven gangs]; Gardeley, supra, 14 Cal.4th at p. 619 [approving gang expert’s testimony that hypothetical attack based on the facts of the case was a classic example of gang-related activity, in that gangs rely on such assaults to frighten residents].)
Contrary to defendants’ assertion, this was not a case in which the expert exceeded the proper bounds of gang testimony by opining as to defendants’ subjective knowledge and intent. For instance, in In re Frank S. (2006) 141 Cal.App.4th 1192, 1199, the gang expert improperly opined as to the minor’s intent regarding knife possession without any supporting evidence of gang motive. In that case, “[t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Ibid.) As detailed above, Officer Szymkowiak’s opinion was based on the kind of evidence missing in In Frank S.—she properly testified to the Rolling 20’s culture, habits, size, composition, territory, and primary activities, explaining how defendants’ conduct was consistent therewith. (See Killebrew, supra, 103 Cal.App.4th at pp. 657-658; Ferraez, supra, 112 Cal.App.4th at pp. 930-931 [gang expert’s testimony properly admitted to explain to the jury how gang’s reputation was enhanced through drug sales and how gang may use drug proceeds].) Having concluded the gang evidence was admissible and nonprejudicial, defendants’ Sixth Amendment claim must fail. (E.g., People v. Ayala (2000) 23 Cal.4th 225, 253 (Ayala) [“There was no violation of state law, and because defendant’s constitutional claims are predicated on his assertion that state law was violated, they too must fail.”].)
Admission of Evidence of Threats
Defendants contend the admission of prosecution evidence that Rolling 20’s members had threatened prosecution witness Miller violated defendants’ due process rights because there was no evidence that defendants were responsible for the threats. We disagree. Under this state’s longstanding precedent, evidence of third party threats is generally admissible when it is relevant to the witness’s credibility. Here, the trial court properly found it admissible for that purpose, and its finding that the evidence was more probative than prejudicial under Evidence Code 352 was well within its legitimate discretion. Because the evidence was admissible for a proper purpose and its admission was not unduly prejudicial, there was no due process violation.
Miller testified under a grant of immunity. He was extensively cross-examined by the defense on a variety of matters bearing on his credibility, including the witness’s anger at defendant Mansion because the latter had badly beaten Miller after the witness had struck defendant Mansion’s pregnant girlfriend. The defense also brought out inconsistencies between witness’s trial testimony and his preliminary hearing testimony. Before the prosecution’s redirect examination, the trial court ruled, over the defense’s joint objection, that Miller could be questioned concerning recent threats Miller had received from Rolling 20’s gang members. The court found the testimony admissible under People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 (Olguin), for the limited purpose of assessing Miller’s credibility. The prosecution was ordered not to argue the threats tended to prove defendants’ consciousness of guilt because of the lack of evidence that the threats came from defendants. The parties were ordered to agree upon a limiting instruction to that effect. The trial court balanced the anticipated testimony’s probative value against its tendency to prejudice defendants, and found the evidence’s relevance to Miller’s credibility outweighed any potential prejudice, especially if a limiting instruction were given. On redirect examination, Miller was asked whether he had been threatened about testifying against defendants. The witness confirmed that earlier that week, two Rolling 20’s gang members that he knew, “Paradise” and “G Red,” threatened him over the telephone that if he testified, he would “get popped”—meaning shot, as Miller understood it.
The record does show that any such instruction was ultimately requested or given.
The governing law is well established. Except as otherwise provided by statute, “all relevant evidence is admissible” (Evid. Code, § 351), and “relevant evidence” includes “evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action” (id., § 210). “[T]he trial court is vested with wide discretion in determining relevance under this standard [citations].” (People v. Green (1980) 27 Cal.3d 1, 19 (Green).) We review a trial court’s evidentiary rulings for an abuse of discretion. (E.g., People v. Sanders (1995) 11 Cal.4th 475, 512.) The trial court exercises broad discretion in this area: “Where . . . a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (E.g., People v. Jordan (1986) 42 Cal.3d 308, 316.)
Overruled on other grounds in People v. Dominguez (2006) 39 Cal.4th 1141, 1155 & footnote 8, and People v. Martinez (1999) 20 Cal.4th 225, 241, and People v. Hall (1986) 41 Cal.3d 826, 834.
Contrary to defendants’ argument, “‘[e]vidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. (Evid. Code, § 780; People v. Warren (1988) 45 Cal.3d 471, 481.) Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30.) It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible. ([Green, supra, ] 27 Cal.3d [at pp.] 19-20 [testimony witness was afraid to go to jail because defendant had friends there relevant to witness’s credibility].)’ (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.)” (Olguin, supra, 31 Cal.App.4th at p. 1368.) As the trial court found, the Olguin decision is on point: “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. . . . [¶] Regardless of its source, the jury would be entitled to evaluate the witness’s testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness’s fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently then one whose fear of testifying is based upon bullets having been fired into her house the night before the trial.” (Id. at pp. 1368-1369.)
The trial court’s Evidence Code section 352 analysis betrayed nothing approaching an abuse of discretion. Miller’s credibility had been placed at issue, not only because he had received immunity in exchange for testifying, but also because he was angry at defendant Mansion for having beaten him up. In addition, the defense had exposed contradictions in Miller’s trial testimony. As the Olguin line of cases demonstrates, the trial court reasonably found the receipt of third party threats was probative as to Miller’s credibility.
While it is true “that California law prohibits proving consciousness of guilt by establishing attempts to suppress evidence unless those attempts can be connected to a defendant,” the prosecution did not make such an argument or suggestion. (Olguin, supra, 31 Cal.App.4th at p. 1368.) Indeed, the trial court invited the parties to submit a limiting instruction, but apparently neither defendant requested one. Accordingly, defendants forfeited any claim of error premised on the failure to give a limiting instruction. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 697 [“defendant has forfeited any claim that the trial court’s comments were erroneous, because he did not request an instruction that Dr. Glathe’s testimony could be considered only for the limited purpose of evaluating the basis of the experts’ opinions”].)
Nor do we find persuasive defendants’ reliance on the decision by the federal Seventh Circuit Court of Appeals in Dudley v. Duckworth (7th Cir. 1988) 854 F.2d 967. The Dudley court found that a state trial court violated the Fourteenth Amendment by admitting evidence that a prosecution witness had received anonymous phone calls the night before he testified. (Dudley v. Duckworth, supra, 854 F.2d at pp. 969, 972.) Dudley is easily distinguished from this case. As the Seventh Circuit has explained, the Dudley holding “was based in large part on the fact that the introduction of the threats was pretextual; there was no need to introduce the threats other than to prejudice the defendant.” (Gomez v. Ahitow (7th Cir. 1994) 29 F.3d 1128, 1138-1139.) Here, in contrast, the trial court found nothing pretextual about the prosecutor’s introduction of the threats, based on the well-supported fact that Miller’s credibility was legitimately at issue. (See ibid. [distinguishing Dudley because “the need to apprise the jury of the anonymous threats to [the prosecution witness] was far from pretextual. She had waited over ten months to come forward with her critical eyewitness information about the Perez homicide. The prosecution reasonably could assume that her delay in coming forward would hurt her credibility in the jury’s eyes and therefore felt the need to have her briefly explain the reason behind her delay”].) The record affords no basis for questioning the trial court’s findings. In any event, we are not bound by the decisions of lower federal courts. (People v. Avena (1996) 13 Cal.4th 394, 431.)
Once again, having concluded the evidence of third party threats was admissible and nonprejudicial, defendants’ due process claim must fail because it is premised on state law error. (E.g., Ayala, supra, 23 Cal.4th at p. 253.) It also bears noting that this was a case in which the evidence against defendants was truly overwhelming. Not only were there three eyewitnesses to the shooting, but the prosecution presented defendants’ admissions, corroborative physical evidence, and established a strong gang-related motive for the murder and attempted murder. Reviewing the record as a whole, there is no reasonable possibility that the evidence of threats against Miller affected the verdicts and special findings.
Consecutive Sentences Under Cunningham
Defendants contend the imposition of consecutive sentences was based on facts not found by a jury and violated their constitutional right to a jury trial under the reasoning of Cunningham, supra, 549 U .S. ___ [127 S.Ct. 856, 860]. We reject this claim because the California Supreme Court has twice held that Cunningham does not apply to consecutive sentencing: “The high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ ([People v. Black (2005) 35 Cal.4th 1238,] 1264 [(Black I)].) Accordingly, we again conclude that defendants’ constitutional right to a jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (People v. Black (2007) 41 Cal.4th 799, 823 (Black II).)
Disapproved on another ground in Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. at pp. 868-871].
Constitutional Challenge to Section 12022.53
Defendant Wheeler contends section 12022.53, which provides for a special punishment enhancement for weapon-use in the commission of crimes to benefit criminal street gangs, is unconstitutional as applied to those convicted on the basis of being aiders and abettors because it violates the constitutional guarantees of equal protection and due process. As to the former guaranty, defendant Wheeler argues section 12022.53, subdivisions (d) and (e)(1) is underinclusive because it punishes aiders and abettors of crimes committed for the benefit of street gangs more severely than aiders and abettors of crimes committed for the benefit of other equally dangerous groups. His argument concerning the latter is that the imposition of an enhancement on an aider and abettor when the perpetrator uses or discharges a firearm without any requirement the aider and abettor knew or intended the murder be committed by the use or discharge of a firearm violates due process. These two contentions have been soundly and repeatedly rejected. (People v. Hernandez (2005) 134 Cal.App.4th 474, 481-483; People v. Gonzales (2001) 87 Cal.App.4th 1, 12-13.) We do the same.
There Was No Cumulative Error
Finally, defendants contend the combination of alleged constitutional violations and trial court errors addressed above resulted in a miscarriage of justice and rendered their trial fundamentally unfair. Having rejected each of those appellate challenges, we are compelled to find no merit to this contention. This was not a case in which trial errors that were nonprejudicial singularly, combined to deprive defendants of due process or a fair trial. (See People v. Box (2000) 23 Cal.4th 1153, 1219.)
DISPOSITION
The judgment is affirmed.
We concur:
ARMSTRONG, Acting P. J., MOSK, J.