Opinion
H035446
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP MARTIN MARQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC787668)
Defendant Phillip Martin Marquez was convicted after jury trial of four counts of attempted premeditated murder (Pen. Code, §§ 664, subd. (a), 187, 189), and one count of discharging a firearm at an occupied motor vehicle (§ 246). The jury further found true allegations that defendant personally discharged a firearm during the commission of the attempted murders (§ 12022.53, subd. (d)), that he personally inflicted great bodily injury on one of the attempted murder victims (§ 12022.7), and that all the offenses were committed for the benefit of and in association with a criminal street gang (§ 186.22, subds. (b)(1)(C) & (b)(4)). Defendant admitted that he had suffered a prior strike for which he had served a prior prison term (§§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b)). The trial court sentenced him to prison for 220 years to life.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that: (1) the court prejudicially erred and violated his due process rights by refusing to allow him to impeach a key prosecution witness with evidence of prior acts of moral turpitude; (2) the evidence was insufficient to establish four counts of attempted murder; (3) the evidence was insufficient to support the gang enhancements; (4) the court prejudicially erred when instructing the jury on the gang enhancement; and (5) the court violated his due process rights by imposing punishment on enhancements the prosecution had not pleaded or proved. We find that there was instructional error, but that the error was harmless beyond a reasonable doubt. We further find that there was no other error that requires reversal or modification of the sentence. Therefore, we will affirm the judgment.
BACKGROUND
Defendant was charged by information with four counts of attempted premeditated murder (§§ 664, subd. (a), 187, 189; count 1-4), and one count of discharging a firearm at an occupied motor vehicle (§ 246; count 5). The information further alleged that defendant personally discharged a firearm during the commission of the offenses in counts 1 through 4 (§ 12022.53, subd. (d)), that he inflicted great bodily injury on the victim of count 1 (§ 12022.7), that all five offenses were committed for the benefit of and in association with a criminal street gang (§ 186.22, subds. (b)(1)(C) & (b)(4)), and that he had suffered a prior strike for which he had served a prior prison term (§§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b)).
Defendant moved in limine to bifurcate trial on the gang and the prior allegations. The court denied the request to bifurcate trial on the gang allegations but granted the request to bifurcate trial on the priors.
The Prosecution's Case
On November 3, 2007, there was a party at a vacant house on Madeline Drive in San Jose that continued into the early morning hours of November 4, 2007. People talked, drank and danced to music inside the house. Defendant drove his cousin Daniel Aguilar and Aguilar's then girlfriend Vianda Burnias to the party. Burnias told the police and testified at the preliminary examination that she and Aguilar got a ride home from the party from somebody other than defendant because defendant stayed at the party when they left, but Burnias testified at defendant's trial that that was not the case. Burnias also testified at trial that Aguilar asked her to change the statement that she had given to the police. Recordings of jail conversations played for the jury showed that defendant asked Aguilar to tell Burnias to say that he "wasn't driving."
Ignatio Gonzalez (aka Pelon), Daniel Fleet, Javier Silva, and David Silva went together to the party on Madeline Drive. Gonzalez wore a black San Francisco Giants jacket and a San Francisco Giants baseball cap. Javier was dancing inside the house when defendant came up alongside him and pulled on his collar, which is "saying, like, you - you doing good, you looking good." Defendant did the same thing to David. Defendant had a pockmarked face, braids, and a tattoo on his neck. Javier had never seen defendant before. About a minute later, David, Javier and defendant stepped outside and Javier and defendant shared a cigarette for a few minutes while David stood nearby.
In order to avoid confusion because they have the same last name, we will hereafter refer to Javier and David, who are cousins, by their first names.
When Gonzalez, Fleet, Javier and David left the party, they were "gas break dipping," "like sideshowing" down the street in their car. Gonzalez was driving the car, Fleet was in the front passenger seat, Javier was behind Gonzalez, and David was next to Javier. A woman was in the middle of the street. Gonzalez first honked the horn and then yelled at the woman to move out of the way, and she finally did so. About 15 people, including defendant, walked up to and started surrounding Gonzalez's car. Somebody asked the men inside the car where they were from. Gonzalez replied, "Frisco, it's all about Frisco." Somebody in the group standing outside the car shouted "San Jo" and "east side." Gonzalez said "it's cool, . . . we're norte too." Fleet told Gonzalez to take off. As Gonzalez drove away, defendant fired a handgun two times and yelled "North Side," or "Northern," or "Norte." Javier heard the gunshots. David saw defendant shoot the gun and saw the sparks coming from the gun. He said, "They just shot at us, bro."
Sandy Neves, who lived in the neighborhood at the time of the party, was awakened by the noise of the party. She heard two shots and she saw somebody standing in front of her house with his arm outstretched and two sparks in front of his arm. She called 911 at 1:58 a.m.
Gonzalez's car was stopped behind other cars at a traffic signal at Alum Rock Avenue when a car pulled up on the left and defendant fired shots into Gonzalez's car. All the windows in Gonzalez's car were down and Gonzalez received a gunshot wound in his head. Fleet later told the police that he ducked when he saw a light skinned Hispanic male with a pockmarked face and hair pulled into a ponytail point a gun out the window of a car towards their car. Fleet heard one or two shots and then Gonzalez slumped over onto him. Fleet grabbed the wheel as the car continued moving and hit other cars.
Javier testified that defendant, the person who leaned outside the car with the gun, was the same person he had shared a cigarette with at the party. Defendant pointed his gun at the inside of the passenger compartment of Gonzalez's car "[j]ust anywhere." Javier yelled at everybody to duck. He heard three shots. Gonzalez's car continued moving but Gonzalez did not drive away, so Javier got into the driver's seat of the car and Fleet got into the back. Javier then saw that Gonzalez was injured, so he drove to a nearby hospital.
David testified that Javier told everybody to duck, so he ducked. He heard two shots. He saw a car pass by and he saw defendant aiming a gun at Gonzalez. David recognized defendant by his facial features, the tattoo on his neck, and his hairstyle. Gonzalez was hit by the gunshots and slumped over. Javier drove the car to a nearby hospital.
Ryanne Muldrow, Alexia Bernal, Melinda Palomino and Abraham Serrano (aka Turtle) went to the party on Madeline Drive together. When they left the party, Muldrow heard one or more gunshots as they were about to turn onto White Road. The others in the car said that they did not hear anything. They were later stopped at the traffic signal at Alum Rock with a Ford Focus behind them when Muldrow, Bernal and Palomino heard three gunshots. Shortly thereafter, Gonzalez's car went up onto the sidewalk and hit Muldrow's car on the passenger side.
Valerie Ocampo and Rachel Murillo went to the party in Ocampo's Ford Focus. There, Murillo met Gonzalez, Javier, and other men who were with them. Murillo and Ocampo also saw a man at the party who had long, cornrow braided hair and facial acne scars. Ocampo had seen the man before at another party. Ocampo and Murillo did not stay at the Madeline Drive party long and decided to follow the people in Muldrow's car to another party. Murillo and Ocampo heard two gunshots as they were driving away, and they heard two or three more gunshots when they were stopped behind Muldrow's car at the traffic signal at Alum Rock. A few seconds after the second gunshots, Gonzalez's car crashed into the passenger side of Ocampo's car and then went up onto the sidewalk. Murillo saw Javier, one of the passengers in Gonzalez's car, get into the driver's seat of Gonzalez's car and drive off. Ocampo saw a car pass her on the left. The man she had seen at the party with facial acne scars and with his hair in cornrows was in the passenger seat of the passing car. Murillo did not identify defendant at trial as the man she saw at the party. Ocampo identified defendant at trial as the person in the photograph she had picked out in a photo lineup.
Gonzalez arrived at the hospital around 2:05 a.m. He was shot in the head near an eye, and he had to have brain surgery to remove two bullet fragments. He remained hospitalized until December 18, 2007. When he was released from the hospital, he had to wear a helmet because bones in his forehead had been removed. The bones were surgically replaced in mid 2008. At the time of the November 2009 trial, he still had speech problems. However, he was mobile and his eyesight had been fully restored. He has no memory of the shooting, and he was not called to testify.
Javier testified that he was shown two photographic lineups. He did not positively identify anybody in either lineup, even though he saw a photo of the shooter in the second lineup, because he "was scared" and he "didn't want to put [himself] out there." He told David that he had seen a photo of the shooter in the second lineup, but he did not tell David the number of the photo. David testified that Javier told him that he had seen a photo of a man "that looked exactly like" the shooter, but that Javier did not identify anybody. David later identified defendant's photo in the same lineup.
Defendant was arrested on November 8, 2007, after he ran from a car with a cracked windshield that was the subject of a traffic stop. On February 20, 2009, during a search of defendant's jail cell, handwritten letters, handwritten poems or rap lyrics, and photographs were seized. A criminalist from the county crime laboratory testified that the handwritten poems or rap lyrics were "very probably" written by defendant. Some of the rap lyrics included a description of events similar to the shooting at issue here.
For example, one poem was: "It's just one of those nights. I'm trying to chill and party. This nigga is acting up. He ain't knowing I gun play. How you going to act up when you ain't even from the streets of the tank? [¶] He trying to sideshow, but he ain't even doing it right. Pull up on the side of him and leave his ass slumped at the light. But now his family is snitching. They trying to put me under the jail. The stupid bitch got me doing burpies in a two-man cell. [¶] But I ain't going out like a sucker. I'm taking this shit to the box, mad as fuck. Why this bitch got to talk to the cops? Whatever happened to keeping it gangster and leaving the shit on the block? She going to wind up a victim for information the game, with her tongue cut out for speaking my name. I got killers on the squad, and they trigger fingers is itching"
The Gang Evidence
San Jose Police Detective Jose Montoya testified as an expert in Hispanic criminal street gangs, membership, activities, and operations. He testified that under section 186.22, subdivision (f), a criminal street gang is "three or more people with a common sign or symbol, . . . whose members collectively engage in or have engaged in a pattern of criminal activity." There are Hispanic gangs in San Jose that qualify as criminal street gangs under the statutory definition. The major Hispanic gangs in San Jose are the Norteños and the Sureños, which are rival gangs. San Jose Norteños associate with the color red, the letter N, and the numeral 14. They may have tattoos with their common signs or symbols: dots in the form of 14, XIV, or X4, or the Huelga bird. Sureños associate with the color blue, the letter M, and the numeral 13.
Norteño gang members will "go after" people who are not gang members if to do so benefits them in any way. "It's all about respect with gang members." In Detective Montoya's experience, if a gang member commits a crime, he will brag about it because "it builds notoriety," "it beefs up his reputation within the gang and also the rival gang." However, a gang member would be "in trouble" with his gang if he claimed credit for a crime he did not commit.
In Detective Montoya's opinion, Jackson-Kings is a criminal street gang in San Jose within the meaning of section 186.22. It is composed of three or more persons; it has the same common signs and symbols as other Norteño gangs; one of the gang's primary activities is the commission of crimes listed in section 186.22, subdivision (e); and the gang's members consistently or repeatedly commit the criminal activity listed in section 186.22, subdivision (e). Nicky Carbajal, an admitted Jackson-Kings gang member, was convicted on October 5, 2005, of possessing marijuana for sale and methamphetamine for sale (Health & Saf. Code, §§ 11378, 11359). Jackson-Kings gang members Johnny Aguilar and Robert Anthony Morales were convicted on September 30, 2005, of robbery with the use of a knife (§§ 211, 212.5, subd. (c), § 12022, subd. (b)(1)). In addition, the parties stipulated that "a Jackson-Kings gang member, on or about August 1st, 2005, committed a felony listed in Penal Code section 186.22(e) and was convicted of that offense thereafter."
Defendant is a Norteño, an admitted member of Jackson-Kings. His gang moniker is Little Man. He has tattoos consistent with Norteño gang membership. During a search of his residence, officers seized several items of clothing that were consistent with gang membership. However, no firearms or ammunition were found during the search.
In Detective Montoya's opinion, the shooting on November 4, 2007, was committed for the benefit of the Jackson-Kings criminal street gang, "to build [defendant's] notoriety. Also, it gives notoriety to that gang." "[W]hen the victim . . . was doing his sideshow on Madeline and wearing his San Francisco Giants attire and basically disrespecting . . . that area in front of Norteño gang members - or Jackson-Kings gang members, he was then confronted by them." "And upon confrontation . . . they asked him, where are you guys from? Where in turn the victim said, we're San Francisco. . . . And when the victim's vehicle left, he shot at them. [¶] When you're amongst other gang members and you're disrespecting, somebody has to . . . take action, or else, if one gets disrespected, other rivals, even their own fellow gang members, would think, okay, we're kind of weak, we're not stepping up, we're not protecting our hood or values, etc. So that's why, I believe, the shooting happened on Madeline as they were leaving. [¶] Unfortunately, the victim was caught up in a light, and when the vehicle that Phillip Marquez . . . was in and they were side by side, he had continued to finish what he started and shoot them, thus building notoriety for him. Look what I do. I shoot people. . . . He's a bad guy, and he proves it by taking action. Not just by words, but by actually doing it. So that builds notoriety for himself, respect, as someone you don't mess with and he takes care of business. So in two-fold, he gets respect, the gang gets respect."
Sergeant T.J. Lewis testified as an expert in the operation, membership, and activities of Hispanic criminal street gangs. He testified that San Jose Grande is an active criminal street gang in San Jose within the meaning of section 186.22. It has three or more members, it has a common sign or symbol, and it has as one of its primary activities the commission of crimes listed in section 186.22. Its members "associate" with "XIV," "14," "SJG," "G," the color red, and four dots. On January 14, 2005, two San Jose Grande gang members, Frank Gutierrez and Jose Granados, were stopped in a car that contained two loaded firearms. Consequently, Gutierrez was convicted on March 30, 2005, of four counts of being a felon in possession of concealed, stolen firearms (§§ 12021, subd. (a)(1), 12025, sub. (a)(1), 12031, subd. (a)(1)). On April 6, 2007, San Jose Grande gang member Benjamin Mendez was found to possess methamphetamine, a scale, and multiple firearms. He was convicted on June 14, 2007, of being a felon in possession of ammunition and possessing methamphetamine for sale (§ 12316, subd. (b)(1); Health & Saf. Code, § 11378). Anthony Gurrola (aka Locon) is a member of San Jose Grande. Defendant associated with Gurrola before and after the shooting at issue here.
The Defense Case
Abraham Serrano heard about the party on Madeline Drive from Valerie Ocampo and David Silva, and he went to the party with Ocampo. He saw Gonzalez and David at the party. Serrano was outside the house when he heard that a fight had occurred inside the house. The house cleared out and everybody started partying outside. As Serrano was getting ready to leave, he heard David "exchanging words, yelling back and forth" with somebody. Apparently, Gonzalez's car had almost run into other people while they were "gas brake dip[ping]." Another car pulled up next to Gonzalez's car, and somebody leaned out the car window and fired three shots at Gonzalez and David. Serrano had seen the shooter at the party; he had hair down to his waist and glasses, and was really thin. Everybody dispersed.
Serrano testified that about one month before the party he pleaded guilty to having stolen between $10,000 and $12,000 from the bank he worked at. About two months after the party he wrote a bad check for $8,567, and subsequently pleaded guilty or no contest to felony check fraud.
Gonzalez and David drove off, but the other car followed them. The car Serrano was in and the car Ocampo was driving were stopped at the intersection at Alum Rock when Serrano heard tires squealing, and saw Gonzalez's car coming towards them with the other car behind it. Serrano saw "another four, five shots get fired out of the car as the car is speeding by, driving by." Gonzalez's car then hit the car Serrano was in. Serrano saw somebody hop into the driver's seat of Gonzalez's car and drive off. Serrano testified that he is "a hundred percent sure" that defendant was not the person he saw doing the shooting that night. "I saw him inside the party, when he reached out with the gun outside the party, and as they were driving by, coming by. So I had three chances to get a really good look at him, and I did get a good look . . . ."
DNA testing on the cigarette butts police collected at the scene of the party either eliminated defendant and Javier or were inconclusive.
Robert William Shomer, a forensic psychologist, testified as an expert in the areas of memory, perception, and the procedures used to obtain eyewitness identifications. He testified that "human beings under very good circumstances are only about 50 percent accurate . . . in eyewitness identification." "[I]f there's high stress, if there's a very short amount of time to see someone, if the distance is longer, then any of those factors actually would cause a decrease in overall accuracy of eyewitness identification." "The presence of a weapon actually significantly reduces the accuracy with which you can identify someone's face." The average accuracy rate in high stress conditions is about 30 percent. In addition, "there's no useable relationship between how confident somebody is in their eyewitness identification and the actual accuracy of that identification."
Admission of the Priors, Verdicts, Motion to Strike the Strike, and Sentencing
On November 19, 2009, after the parties had rested and out of the presence of the jury, defendant admitted the alleged priors. (§§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).) On November 23, 2009, the jury found defendant guilty of four counts of attempted premeditated murder (§§ 664, subd. (a), 187, 189; counts 1-4), and one count of shooting at an occupied motor vehicle (§ 246; count 5). The jury also found true the allegations that defendant personally discharged a firearm in the commission of the offenses in counts 1 through 4 (§ 12022.53, subd. (d)), that he personally inflicted great bodily injury on the victim in count 1 (§ 12022.7, subd. (a)), and that all five offenses were committed for the benefit of and in association with a criminal street gang (§ 186.22, subds. (b)(1)(C) & (b)(4)).
On March 3, 2010, defendant filed a motion asking the court to dismiss his prior strike. The People filed opposition to the motion. On March 8, 2010, the court denied the request to strike the strike. The court then sentenced defendant to prison for 220 years to life. The sentence consists of consecutive terms of 55 years to life (15 years to life, doubled, plus 25 years for the personal use enhancement) on each of counts 1 through 4. The court stayed the sentence on the great bodily injury enhancement on count 1 and the sentence on count 5 pursuant to section 654, and it struck the term for the prison prior pursuant to section 1385.
DISCUSSION
Impeachment of David Silva
Background
Prior to David and Javier Silva's testimony, defense counsel sought leave to impeach them with evidence of prior offenses involving moral turpitude. Javier had been arrested for making a criminal threat in July 2006. Defense counsel wanted to ask Javier, "on July 21st of 2006, . . . [d]id you make a threat?" Then, if need be, he would call the alleged victim of the threat to testify to the facts underlying the arrest. The prosecutor objected, arguing that the evidence was prejudicial within the meaning of Evidence Code section 352, that it would involve an undue consumption of time, and that "it's emotional and inflammatory." Defense counsel countered, "there's a real potential here for the fact that the jury's going to get to hear tons of evidence about my client being a gang member and all sorts of things, and yet the witnesses who are going to be testifying here who have crimes of moral turpitude, if they're not impeached with them, . . . essentially, they're going to be allowed to assume a false air of having never been in trouble before, having no conduct, any kind of problems before." The court ruled as follows: "The Court agrees that this may result in not only prejudice but an undue consumption of time with respect to the benefit, potential upside. The Court . . . sustains the objection."
David, who had just turned 20 at the time of defendant's November 2009 trial, had a sustained juvenile court petition for petty theft (§§ 484, 490) in November 2003, and a sustained petition for bringing weapons onto a school campus (§ 626.10) in October 2003. He also had a pending charge of unlawful sex with a minor (§ 261.5). David was 18 years old at the time of the charged sex offense, the alleged victim was 15, the sex was "consensual," and both admitted to the police that they had engaged in sexual intercourse. The prosecutor objected to the admission of this evidence. He stated that he agreed with defense counsel that the petty theft offense, which was committed when David was 14, was a crime involving moral turpitude, and he "just submit[ted] it on that." The prosecutor argued as to the pending charge that it had "very little probative value in this particular case, and it has great potential to sidetrack the jury and to be inflammatory . . . ." The prosecutor stated that, "there have been no promises made to this witness in regard to his testimony in that case," but if the pending case could be "sanitized," he would "not [be] opposed" to allowing defense counsel to ask David, "do you have a pending case . . . without reference to a specific charge and asking him if that in any way is affecting his testimony," "subject to whatever decision the Court makes under [Evidence Code section] 352."
It is unclear from the record whether this is the actual pending charge. If it is, it is either a misdemeanor (§ 261.5, subd. (b)) or a wobbler (id., subd. (c)).
The court stated that, "if you don't mention the charge, then you leave to the jury to fantasize about what the charge might be." The prosecutor responded, "That's correct. And, you know, this is, I think, ultimately for the Court to decide under [Evidence Code section] 352." The court then ruled, "All right. The objection is sustained, and none of the alleged priors may be used for the reasons stated."
The Parties' Contentions
On appeal, defendant contends that the court erred by refusing to allow him to impeach David with evidence of his prior acts involving moral turpitude, thereby violating defendant's constitutional rights to due process and to confront witnesses. Specifically, he contends that "the court erred when it refused to allow [him] to explore David's motivation to testify in the prosecution's favor," and that "David's previous offenses for petty theft and bringing weapons into a school campus evidenced moral turpitude." He argues that his Evidence Code section 352 argument below preserved the issue on appeal but, if this court decides otherwise, his counsel rendered ineffective assistance by failing to raise the constitutional issues below. He further argues that "[i]t was error for the trial court to allow David to testify cloaked with a misleading aura of innocence and righteous living."
The Attorney General contends that trial counsel's failure to object to the exclusion of the impeachment evidence on constitutional grounds did not constitute ineffective assistance "because an objection on constitutional grounds would have lacked merit." Alternatively, the Attorney General contends that any error in excluding the impeachment evidence was harmless. "David was not the only witness who identified [defendant] as the shooter. Also, other prosecution witnesses not only placed [defendant] at the party, but contradicted [defendant's] claim that he had left the party when the shooting occurred. [Defendant's] own words, both written and spoken, established his knowledge of the circumstances surrounding the shooting. Therefore, it is not reasonably probable that a more favorable verdict would have been rendered had the jury heard the impeachment evidence. Furthermore, since the impeachment evidence does not undermine confidence in the jury's verdict . . . , any error was harmless beyond a reasonable doubt."
Analysis
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that ' " 'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569, see also Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Weaver (2001) 26 Cal.4th 876, 926.)
Evidence of a felony conviction, whether in an adult or juvenile court, is admissible for impeachment purposes in any criminal proceeding. Evidence of nonfelony conduct involving moral turpitude is also admissible for impeachment purposes. (People v. Wheeler (1992) 4 Cal.4th 284, 295-297 (Wheeler); People v. Lee (1994) 28 Cal.App.4th 1724, 1740; Cal. Const., art. I, § 28, subd. (f)(4).) In addition, "[i]t is long-standing law that a prosecution witness can be impeached by the mere fact of pending charges. [Citation.] Such a situation is a 'circumstance to show that he [or she] . . . may, by testifying, be seeking favor or leniency. [Citations.]' [Citation.]" (People v. Martinez (2002) 103 Cal.App.4th 1071, 1080.) However, the trial court has discretion under Evidence Code section 352 to exclude such evidence when its probative value is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time. (Wheeler, supra, at p. 295; Cal. Const., art. I, § 28, subd. (f)(2).) "[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352. [Citations.]" (People v. Taylor (2001) 26 Cal.4th 1155, 1169.)
"The California Supreme Court has divided crimes of moral turpitude into two groups. (People v. Castro (1985) 38 Cal.3d 301.) The first group includes crimes in which dishonesty is an element (i.e., fraud, perjury, etc.). The second group includes crimes that indicate a ' "general readiness to do evil," ' from which a readiness to lie can be inferred. (Id. at p. 315.) Crimes in the latter group are acts of 'baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' (In re Craig (1938) 12 Cal.2d 93, 97.) 'Although the inference is not as compelling in the latter case, "it is undeniable that a witness's moral depravity of any kind has some 'tendency in reason' [citation] to shake one's confidence in his honesty." ' (People v. Thornton (1992) 3 Cal.App.4th 419, 422.)" (People v. Chavez (2000) 84 Cal.App.4th 25, 28-29.)
"In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present." (Wheeler, supra, 4 Cal.4th at pp. 296.) In addition, crimes involving a general readiness to do evil are less indicative of a witness's veracity in testifying than crimes of dishonesty. (People v. Thornton, supra, 3 Cal.App.4th at p. 422.) "Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Wheeler, supra, at pp. 296-297, fn. omitted.)
When exercising discretion under Evidence Code section 352 to bar impeachment with prior conduct, trial courts should "be guided—but not bound—by the factors set forth in People v. Beagle (1972) 6 Cal.3d 441, and its progeny. [Citations.] When the witness subject to impeachment is not the defendant, those factors prominently include whether the [conduct] (1) reflects on honesty and (2) is near in time. [Citation.]" (People v. Clair (1992) 2 Cal.4th 629, 654.) In addition, it is reasonable for a trial court to consider the witness's age at the time of the prior conduct. (Cf. People v. Burns (1987) 189 Cal.App.3d 734, 738.) "The rule is settled that the trial court's discretion to exclude or admit relevant evidence under Evidence Code section 352 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the [prior conduct evidence] is admitted or excluded.' [Citation.]" (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) The trial court's ruling " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In this case, neither party cited to the trial court or to this court any authority to support defendant's claim that the misdemeanor offense under section 626.10 of bringing a weapon onto school grounds is one involving moral turpitude, and we have found no such authority. Although possession of a concealed handgun is a crime involving moral turpitude (People v. Robinson (2005) 37 Cal.4th 592, 626), an offense under section 626.10 would not involve a handgun. There is no dispute that petty theft is a misdemeanor involving moral turpitude. (In re Honoroff (1975) 15 Cal.3d 755, 758.) However, both the weapon offense and the petty theft were committed by David when he was 14 years old, which was six years before defendant's trial. The court may have concluded that admission of evidence of the conduct underlying these offenses, given the remoteness of the offenses and David's young age at the time of the offenses, might involve an undue consumption of time and that its potential for prejudice outweighed any relevancy the evidence would have for impeachment. David's more recent admitted sexual intercourse with a minor constitutes an offense involving moral turpitude (People v. Fulcher (1987) 194 Cal.App.3d 749, 753-754), and thus evidence of the conduct was admissible for impeachment even if he did not have charges pending. However, the court may have concluded that because the admitted conduct was "consensual," and did not involve dishonesty, its potential for prejudice outweighed its probative value for impeachment purposes. Thus, the trial court's discretionary ruling under Evidence Code section 352 does not appear to be arbitrary, capricious, or patently absurd. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
Section 626.10, subds. (a) and (b) prohibit possessing on school grounds "any dirk, dagger, ice pick, knife having a blade longer than 2 1/2 inches, folding knife with a blade that locks into place, razor with an unguarded blade, taser, or stun gun, . . . any instrument that expels a metallic projectile such as a BB or a pellet, through the force of air pressure, CO[2] pressure, or spring action, or any spot marker gun," or any "razor blade or a box cutter."
Nor do we find that trial counsel rendered ineffective assistance by failing to object to the trial court's Evidence Code section 352 ruling on the grounds that it violated defendant's constitutional rights to confrontation and due process. A trial court may restrict cross-examination of an adverse witness pursuant to Evidence Code section 352 despite the strictures of the confrontation clause. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain).)"[T]he ordinary rules of evidence do not infringe on a defendant's right to present a defense. [Citation.] Trial courts possess the 'traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.' [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 945, disapproved on another point by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Frye); People v. Hawthorne (1992) 4 Cal.4th 43, 57-58.) A trial court's limitation on cross-examination regarding the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. (Frye, supra, 18 Cal.4th at p. 946; Quartermain, supra, 16 Cal.4th at pp. 623-624.)
Here, even assuming the trial court should have admitted the impeachment evidence, the error was harmless and did not violate the confrontation clause. Defense counsel was able to impeach David's credibility with his prior statements to the police regarding his description of the people he encountered at the party and his description of the events surrounding the shooting. Defense counsel was also able to point out discrepancies in David's trial testimony and his prior testimony. Defendant's inability to cross-examine David with evidence of conduct that occurred when he was 14, and with evidence of a more recent sexual encounter when he was still a teenager with another, though younger, teenager, would not have given the jury a significantly different impression of David's credibility. (Frye, supra, 18 Cal.4th at p. 946.) In addition, David was not the only witness who testified that the shooter had been at the party. Ocampo and Javier also testified that they recognized the shooter from the party, and both of them had picked defendant's photo out of a lineup. Also, the jury heard evidence that poems probably handwritten by defendant, and found in his jail cell, described events similar to the shooting from the perspective of the shooter. Accordingly, defendant cannot demonstrate that he was prejudiced by counsel's failure to object to the trial court's Evidence Code section 352 ruling on constitutional grounds (People v. Anderson, supra, 25 Cal.4th at p. 569), and we cannot say that the court's ruling resulted in a manifest miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
Sufficiency of the Evidence of Four Counts of Attempted Murder
Background
Defendant was charged with four counts of attempted premeditated murder, one count for each of the occupants in Gonzalez's car. The court instructed the jury pursuant to CALCRIM No. 600 that "[a] person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or kill zone. [¶] In order to convict the defendant of the attempted murder of Daniel Fleet, Javier Silva, and David Silva, the People must prove the defendant not only intended to kill Ignatio Gonzales, but also either intended to kill Daniel Fleet, Javier Silva, and David Silva, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Daniel Fleet, Javier Silva, and David Silva, or intended to kill Ignatio Gonzales by harming everyone in the kill zone, . . . you must find the defendant not guilty of the attempted murder of Daniel Fleet, Javier Silva, and David Silva."
The prosecutor argued to the jury that defendant could be convicted of four counts of attempted murder, even though the evidence showed that defendant "didn't shoot four shots" at Gonzalez's car, because of the "doctrine of a kill zone." "Assuming the defendant's the shooter, the shooter is guilty of attempted murder of anyone who was in Ignatio's kill zone or the kill zone that the shooter was aiming at." "What do we know? The shooter intended to kill Ignatio. We also know the shooter intended to kill Daniel, Javier, and David if he intended to kill anyone within the kill zone." "[T]he evidence says all four of the guys were in the kill zone. All the passengers ducked. The one who didn't was the one who got it. [¶] Multiple shots were fired. And let me be clear about this. The law does not require an equal number of shots to the number of alleged victims. It's not required that there has to be four shots for four victims." "There's undisputed evidence in this case that the shooter was trying to kill anybody who was in that car."
The jury found defendant guilty of all four counts of attempted premeditated murder.
The Parties' Contentions
Defendant contends that there is insufficient evidence to support his conviction for four counts of attempted premeditated murder. He argues that "firing three separate shots does not support four counts of attempted murder." "[T]he evidence did not establish that [he] had the ability to kill more than a single person with a single shot," so "[o]ne of the convictions must be reversed."
The Attorney General contends that "[a] single shot, aimed at multiple victims, can make a kill zone, even if the gun is not automatic." "[T]he prosecution established that [defendant] intended to kill Ignatio Gonzales, Javier Silva, David Silva, and Daniel Fleet. Specifically, [defendant] intended to kill anyone within the 'kill zone.' " "[Defendant] fired his gun into a car full of people and intended to kill them all."
Analysis
" 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.]" (People v. Perez (2010) 50 Cal.4th 222, 229 (Perez).)
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623; Perez, supra, 50 Cal.4th at p. 229.) " 'The 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.]' [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 741.)
" '[G]uilt of attempted murder must be judged separately as to each alleged victim.' " (People v. Stone (2009) 46 Cal.4th 131, 141; Perez, supra, 50 Cal.4th at p. 230.) "[T]his is true whether the alleged victim was particularly targeted or randomly chosen." (Stone, supra, at p. 141; Perez, supra, at p. 230.) "[I]ntent to kill does not transfer to victims who are not killed, thus 'transferred intent' cannot serve as a basis for a finding of attempted murder." (Perez, supra, at p. 232; People v. Bland (2002) 28 Cal.4th 313, 326-331 (Bland).)" 'Bland . . . 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. (Bland, supra, 28 Cal.4th at pp. 329-330.)' (Smith, supra, 37 Cal.4th at pp. 745-746.)" (Perez, supra, 50 Cal.4th at p. 232.) "[T]he firing of an automatic weapon at a group of people on the street motivated by the desire to kill one particular person in the group" is an "example[] of facts that might support a 'kill zone' theory of attempted murder." (Perez, supra, at p. 232; Bland, supra, 28 Cal.4th at pp. 329-330.)
"Bland's kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack." (Perez, supra, 50 Cal.4th at p. 232.) "Under the case law . . . evidence that [a] defendant purposefully discharged a lethal firearm at [two] victims, both of whom were seated in [a] 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." (Smith, supra, 37 Cal.4th at p. 743.)
In this case, a rational jury could have concluded beyond a reasonable doubt that defendant intended to kill not only Gonzalez, "but also all others he knew were in the zone of fatal harm." (Perez, supra, 50 Cal.4th at p. 232, italics added.) The jury could have reasonably concluded that defendant was in the group of people who surrounded Gonzalez's car when the car was in the street in front of the house where the party was going on, and defendant's car followed Gonzalez's car to the stoplight at Alum Rock, so defendant would have been aware that there were four people in Gonzalez's car. When the car defendant was riding in passed alongside Gonzalez's car, defendant fired three shots into the passenger compartment of Gonzalez's car, notwithstanding that all the people in Gonzalez's car were sitting in relative close proximity to one another (although not necessarily all directly in defendant's line of fire). The firing of three shots under these circumstances was the equivalent of "spraying a crowd with automatic weapon fire, a means likewise calculated to kill everyone fired upon." (Perez, supra, 50 Cal.4th at p. 232.) Accordingly, the evidence is sufficient to establish that defendant acted with intent to kill any or all of the four people in Gonzalez's car by firing three shots at close range at the passenger compartment of Gonzalez's car. (Bland, supra, 28 Cal.4th at pp. 329-330.)
The Gang Enhancements
Sufficiency of the Evidence
Defendant first contends that there is insufficient evidence to support the gang enhancements because the prosecution failed to introduce any facts to prove that the primary activities of either the Jackson-Kings or the San Jose Grandes gang included committing crimes listed in section 186.22, subdivision (e). He argues that Detective Montoya and Sergeant Lewis did not provide any factual basis for their testimony that one of the gangs' primary activities is the commission of crimes listed in section 186.22, subdivision (e); that they did not identify any particular crime committed by either gang; that they did not read section 186.22 to the jury; and that they did not name even one crime the statute covers. "When expert testimony is used to establish the gang's primary activities or the group's pattern of activity, it must be based on an adequate factual foundation." "The prosecution provided no such foundation here."
The Attorney General contends that, because defendant did not object below to the expert's testimony on the ground that it was conclusory or based on an inadequate factual foundation, he has forfeited any argument on appeal that the expert testimony cannot constitute competent evidence to support the jury's findings. The Attorney General further contends that, "[r]ead in the light most favorable to the prosecution, the evidence of specific, enumerated crimes committed by [defendant] and other members of the Jackson-Kings and the San Jose Grandes from 2005 through 2007, along with testimony that the gangs were part of the Norteno crime organization which supports itself and funds its illegal activities by narcotic sales and other crimes amounted to solid and reliable evidence that the Jackson-Kings and the San Jose Grandes were criminal street gangs whose primary activities were one or more of the offenses specified in section 186.22, subdivision (e) and not merely occasional, isolated acts that happened to be committed by gang members for personal reasons."
We have previously stated the proper test for determining a claim of insufficiency of evidence. "The law regarding appellate review of claims challenging the sufficiency of the evidence in the context of gang enhancements is the same as that governing review of sufficiency claims generally. [Citation.]" (People v. Leon (2008) 161 Cal.App.4th 149, 161.) " 'Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. [Citation]' [Citation.]" (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.)
" 'It is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the contributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding.' " (People v. Bailey (1991) 1 Cal.App.4th 459, 463; People v. Panah (2005) 35 Cal.4th 395, 476.) "[A] reviewing court must consider all of the evidence admitted at trial when considering [an insufficiency of the evidence] claim." (McDaniel v. Brown (2010) 558 U.S. ___, ___ [130 S.Ct. 665, 672].) " ' "Evidence technically incompetent admitted without objection must be given as much weight in the reviewing court in reviewing the sufficiency of the evidence as if it were competent. [Citations.]" ' " (Bailey, supra, 1 Cal.App.4th at p. 463.) " ' "To warrant rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inference or deductions." ' " (People v. Barnes (1986) 42 Cal.3d 284, 306.)
Here, Detective Montoya testified as an expert on Hispanic criminal street gangs, membership, activities, and operations. He testified that he had training in the area of criminal street gangs, that he had been involved in the investigation of over 500 gang-related cases, and that he had had contacts with approximately 800 gang members during his career. He testified that under section 186.22, subdivision (f), a criminal street gang is three or more people with a common sign or symbol whose members collectively engage in or have engaged in a pattern of criminal activity. He testified that in his opinion, Jackson-Kings is a criminal street gang within the meaning of section 186.22: it is composed of three or more persons; it has the same common signs and symbols as other Norteño gangs; one of the gangs primary activities is the commission of crimes listed in section 186.22, section (e); and the gang's members consistently or repeatedly commit the criminal activity listed in section 186.22, subdivision (e). Detective Montoya's dealings with gangs and gang members, including investigations and personal contacts with gang members, suffices to establish the foundation for this testimony. (People v. Martinez, supra, 158 Cal.App.4th at p. 1330.) The detective then gave three examples of criminal activity by Jackson-Kings gang members that resulted in convictions (one Jackson-Kings gang member was convicted in October 2005 of possessing marijuana and methamphetamine for sale, and two other Jackson-Kings gang members were convicted in September 2005 of robbery with the use of a knife), and the parties stipulated that a Jackson-Kings gang member was convicted of a felony listed in section 186.22, subdivision (e) in August 2005. The jury could reasonably infer from the detective's testimony and the parties' stipulation that all these examples of criminal activity by Jackson-Kings gang members was criminal activity listed in section 186.22, subdivision (e). In addition, the court instructed the jury that, "if you find the defendant guilty of a crime in this case, you may then consider that crime in deciding whether one of the group's primary activities was commission of that crime . . . ." Thus, pursuant to the court's instruction, the jury could consider defendant's current shooting at an occupied motor vehicle and attempted murder offenses to determine whether one of the Jackson-Kings gang's primary activities was the commission of an enumerated offense or offenses. Accordingly, contrary to defendant's contention, the evidence presented by the prosecution was sufficient to prove that the primary activities of the Jackson-Kings gang included committing crimes listed in section 186.22, subdivision (e).
The Jury Instruction
The court instructed the jury pursuant to CALCRIM No. 1401 that, to prove the gang allegations, "the People must prove that: [¶] The defendant committed or attempted to commit the crime for the benefit of, at the direction of, or in association with a criminal street gang; [¶] And, two, the defendant intended to assist, further, promote criminal conduct by gang members. [¶] A criminal street gang is any ongoing organization or association of a group of three or more persons, whether formal or informal: [¶] One, that has a common name or a common identifying sign or symbol; [¶] Two, that has as one or more of its primary activities the commissions of crimes listed in Penal Code Section 186.22(e)(1) - (25), (31) - (33); [¶] And whose members, whether acting alone or together engage in or have engaged in a pattern of criminal gang activity. [¶] In order to qualify as a primary activity, the crime must be one of the group's chief or principle activities, rather than an occasional act committed by one or more persons who happen to be members of the group. [¶] A pattern of criminal gang activity as used here means: [¶] One, the commission or attempted commission of or a conviction of any combination of two or more of the following crimes or two or more occurrences of one or more of the following crimes: Attempted murder; shooting in an occupied vehicle, in violation of Penal Code section 246; robbery; carrying a loaded firearm, in violation of Penal Code Section 12031(a)(1); carrying a concealed firearm, in violation of Penal Code Section 12025; and possession for sale of controlled substances; [¶] At least one of those crimes was committed after September 26, 1988; [¶] And, three, the most recent crime occurred within three years of one of the earlier crimes; [¶] And, four, the crimes were committed on separate occasions or were personally committed by two or more persons. [¶] To decide whether a member of the gang or the defendant committed the crime of attempted murder or the crime of shooting at an occupied vehicle, please refer to the specific instruction that I've given you on those crimes. The crimes, if any, that establish a pattern of criminal gang activity need not be gang related. [¶] The People need not prove that the defendant is an active or current member of an alleged criminal street gang. If you find the defendant guilty of a crime in this case, you may then consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal activity has been proved. [¶] You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed, but you do not have to all agree on which crime was committed. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not proved this burden, you must find the allegations have not been proved."
Defendant contends that the court prejudicially erred by giving this instruction. "[T]he jury only heard that to find the gang enhancement true, it must find (among all other things) that the group 'has as one or more of its primary activities the commissions of crimes listed in Penal Code Section 186.22(e)(1)-(25), (31)-(33).' The instruction did not give the jury any way to discern just what those crimes might be." "Accordingly, the jury had no way to determine whether the alleged gangs had committed crimes listed in the statute. Thus the mis-instruction removed the 'primary activities' element of the gang enhancements from the jury's consideration."
The Attorney General acknowledges that "the identity of the crimes listed in Penal Code section 186.22, subdivision (e)(1)-(25), (31)-(33) which constitute the gang's primary activities were not included in the court's oral or written instructions," but contends that "the error does not require reversal." "[T]he gang enhancements in this case did not increase the maximum statutory penalty for [defendant's] convictions for attempted murder in counts 1 through 4," and "[a]s to count 5, shooting at an occupied vehicle, the sentence was stayed pursuant to Penal Code section 654." "Also, evidence of specific, enumerated crimes committed by [defendant] and other members of the Jackson-Kings or San Jose Grandes from 2005 through 2007, along with testimony that the gangs were part of the Norteno crime organization which supports itself and funds its illegal activities by narcotic sales and other crimes amounted to solid and reliable evidence that the Jackson-Kings or San Jose Grandes were criminal street gangs whose primary activities were one or more of the offenses specified in section 186.22, subdivision (e) and not merely occasional, isolated acts that happened to be committed by gang members for personal reasons. . . . Thus, it is not reasonably probable the jury would have returned a different finding on the gang enhancements if it had not been misinstructed."
In this case, the trial court instructed the jury on the criminal street gang sentence enhancement, explaining that, to trigger the provision, the jury had to find that one of the Jackson-Kings' or San Jose Grandes' primary activities was the commission of crimes listed in section 186.22, subdivision (e)(1) through (25) and (31) through (33). However, the trial court did not explain to the jury what crimes are listed in section 186.22, subdivision (e)(1) through (25) and (31) through (33). Thus, the trial court erred by failing to correctly and completely instruct the jury on the primary activities element of the criminal street gang enhancement provision. "What harmless error standard governs a trial court's failure to instruct the jury on the primary activities element of the criminal street gang enhancement provision . . . depends on whether the enhancement provision increases the maximum penalty for the underlying crime." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith).)
"Except for sentence enhancement provisions that are based on a defendant's prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the 'prescribed statutory maximum' punishment for that crime. [Citation.] Therefore, a trial court's failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision 'increases the penalty for [the underlying] crime beyond the prescribed statutory maximum.' [Citation.] Such error is reversible under Chapman [v. California (1967)] 386 U.S. [18,] 24 [(Chapman)], unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (Sengpadychith, 26 Cal.4th at p. 326.) A trial court's failure to instruct on an element of sentence enhancement provisions that do not increase the statutorily prescribed maximum penalty for the underlying crime "must on appeal be evaluated under [People v.] Watson [(1956)] 46 Cal.2d [818,] 836 [(Watson)]" (Sengpadychith, supra, at p. 326), "which asks whether without the error it is 'reasonably probable' the trier of fact would have reached a result more favorable to the defendant." (Id. at pp. 320-321, fn. omitted.)
"For certain specified felonies punishable by a determinate term of imprisonment, the criminal street gang enhancement increases the punishment for the offense to an indeterminate term of imprisonment for life. (§ 186.22, subd. (b)(4).) For all other felonies punishable by a determinate term of imprisonment, the enhancement adds a separate term of imprisonment 'in addition and consecutive to' the punishment otherwise prescribed for the felony. (§ 186.22, subd. (b)(1) . . . .) Thus, in these two categories, the gang enhancement increases the sentence for the underlying crime beyond its statutory maximum. In these instances, therefore, a trial court's failure to instruct on an element of the gang enhancement is federal constitutional error [citation], reviewable under the harmless error standard of Chapman, supra, 386 U.S. at page 24 . . . ." (Sengpadychith, supra, 26 Cal.4th at p. 327, italics omitted.)
"The gang statute has a third category of felony offenses—those that are punishable by an indeterminate term of imprisonment for life. For these felonies, the gang enhancement provision does not alter the indeterminate term of life imprisonment; it merely prescribes the minimum period the defendant must serve before becoming eligible for parole. (§ 186.22, subd. (b)(5) [providing for this category of felonies committed to benefit a street gang, the defendant 'shall not be paroled until a minimum of 15 calendar years have been served'].) Thus, for these felonies, the gang enhancement provision does not increase the life term for the underlying offense. Consequently, in this category of cases instructional error on an element of the gang enhancement provision does not violate the federal Constitution [citation], but only California law, making the error reviewable under the standard . . . articulated in Watson, supra, 46 Cal.2d 818, 836 . . . ." (Sengpadychith, supra, 26 Cal.4th at p. 327.)
Here, the jury convicted defendant of four counts of attempted premeditated murder and one count of discharging a firearm at an occupied motor vehicle, and it found that all five offenses were committed for the benefit of and in association with a criminal street gang. The offense of attempted premeditated murder falls within the gang statute's category of offenses punishable by an indeterminate term of imprisonment for life. (Sengpadychith, supra, 26 Cal.4th at p. 328.) Therefore, for these offenses, instructional error of the type at issue in this case is subject to this court's harmless error test in Watson, supra, 46 Cal.2d at page 836. (Sengpadychith, supra, at p. 328.) The offense of discharging a firearm at an occupied motor vehicle (§ 246) is among the felonies for which the gang enhancement provision increases the crime's statutorily maximum sentence to an indeterminate term of imprisonment for life. (§ 186.22, subd. (b)(4)(B).) Therefore, for this offense the instructional error is federal constitutional error and subject to the harmless error test in Chapman, supra, 386 U.S. at page 24. (Sengpadychith, supra, at p. 328.)
We are convinced beyond a reasonable doubt that the instructional error in this case did not contribute to the jury's verdict. (Chapman, supra, 386 U.S. at p. 24; Sengpadychith, 26 Cal.4th at p. 326.) We find that, viewed in light of the entire record, the verdicts indicate that the jury credited Detective Montoya's undisputed testimony regarding the Jackson-Kings gang and defendant's membership in it. After qualifying as an expert on Hispanic criminal street gangs, membership, activities, and operations, Detective Montoya provided his expert opinion regarding the primary activities of the Jackson-Kings gang. He testified that the primary activities included committing crimes listed in section 186.22, subdivision (e). He then gave three examples of such crimes (possessing marijuana and methamphetamine for sale, and robbery with the use of a knife), all of which are included in section 186.22, subdivision (e). (§ 186.22, subds. (e)(2) & (e)(4).) In addition, the parties stipulated that a member of the Jackson-Kings gang committed a crime listed in section 186.22, subdivision (e). Detective Montoya also testified that defendant is an admitted member of Jackson-Kings, and evidence was presented that defendant committed the offenses of attempted murder and shooting at an occupied motor vehicle. Both defendant's offenses are offenses listed in section 186.22, subdivision (e). (§ 186.22, subds. (e)(3) & (e)(5).) Defendant argued to the jury that the prosecution did not prove beyond a reasonable doubt that defendant was the shooter in this case, but he did not challenge the evidence presented regarding the Jackson-Kings gang and the allegations underlying the gang enhancements. In light of the undisputed testimony by Detective Montoya regarding the primary activities of the Jackson-Kings gang, defendant's argument to the jury, and the jury's finding that defendant had committed the offenses of attempted murder and shooting at an occupied vehicle, had the jury been properly instructed, no reasonable juror could have found that the primary activities of the Jackson-Kings gang were not the commission of crimes listed in section 186.22, subdivision (e). Accordingly, the instructional error is harmless beyond a reasonable doubt.
Punishment
Defendant contends that the court violated his due process rights by imposing punishment on gang enhancements the prosecution had not pleaded or proved. He argues that the sentences on counts 1 through 4 of consecutive terms of 65 years to life was unauthorized as the court reached that term by sentencing him under the provisions of section 186.22, subdivision (b)(5), rather than subdivision (b)(1)(C), the provision that was actually pleaded and the jury found true.
The Attorney General contends that the trial court properly sentenced defendant pursuant to section 186.22, subdivision (b)(5). "Penal Code section 186.22, subdivision (b)(5) does not add a separate, additional penalty. Rather, it provides a different penalty for the criminal violation itself."
The purpose of an information is to advise the defendant of the charges so that he or she has a reasonable opportunity to prepare and present a defense. (People v. Valladoli (1996) 13 Cal.4th 590, 607.) "[W]here the information puts the defendant on notice that a sentence enhancement will be sought, and further notifies him [or her] of the facts supporting the alleged enhancement, modification of the judgment for a misstatement of the underlying enhancement statute is required only where the defendant has been misled to his [or her] prejudice." (People v. Neal (1984) 159 Cal.App.3d 69, 73.)
Here, defendant had adequate notice of the charges against him and of the specific sentence that might be sought in connection with the gang allegations. Specifically, defendant was charged in counts 1 through 4 with attempted premeditated murder in violation of sections 664, subdivision (a), 187, and 189, and each count alleged that the offense was committed at the direction of and for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(C). Section 664, subdivision (a) provides that attempted premeditated murder is punishable by imprisonment in state prison for life with the possibility of parole. "[S]ection 186.22, subdivision (b) establishes alternate methods for punishing felons whose crimes were committed for the benefit of a criminal street gang. Section 186.22, subdivision (b)(1)(C), [which was alleged in the information], imposes a 10-year enhancement when such a defendant commits a violent felony. Section 186.22(b)(1)(C) does not apply, however where the violent felony is
'punishable by imprisonment in the state prison for life.' (Pen. Code, § 186.22, subd. (b)(5).) Instead, section 186.22, subdivision (b)(5), [which concededly was not referenced in the information,] applies and imposes a minimum term of 15 years before the defendant may be considered for parole." (People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
Even though subdivision (b)(5) of section 186.22 was not specifically referenced in the information, defendant was on notice that he was facing, first, life with the possibility of parole on each of counts 1 through 4, and, second, a minimum parole requirement on that life sentence. The first fact was made clear by the reference to section 664, subdivision (a). The second fact was made clear by the recitation to subdivision (b)(1)(C). Subdivision (b)(1) of section 186.22 states in relevant part: "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of . . . any criminal street gang, . . . shall, upon conviction of that felony" be punished as set forth in subparagraph (A), (B), or (C). (Italics added.) Thus, although the information did not separately reference subdivision (b)(5) in counts 1 through 4, subdivision (b)(5) is referenced in subdivision (b)(1), which was alleged in those counts in the information. And, there is no requirement in section 186.22 that subdivision (b)(5) be expressly pleaded before a sentence may be imposed pursuant to its provisions. (Compare People v. Mancebo (2002) 27 Cal.4th 735 [§ 667.61 expressly requires a circumstance under its provisions to be pleaded and proved].)
Defendant has not shown that a modification of his sentence is required.
DISPOSITION
The judgment is affirmed.
BAMATTRE-MANOUKIAN, ACTING P. J. WE CONCUR: DUFFY, J. WALSH J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.