People v. Murillo

Full title: THE PEOPLE, Plaintiff and Respondent, v. JUAN PABLO MURILLO et al.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

Date published: Feb 15, 2012

B226736 (Cal. Ct. App. Feb. 15, 2012)

Opinion

B226736

02-15-2012

THE PEOPLE, Plaintiff and Respondent, v. JUAN PABLO MURILLO et al., Defendants and Appellants.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Juan Pablo Murillo. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Guadalupe Torres Rangel. Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant Yovanni Velasquez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA329116)

APPEALS from judgments of the Superior Court of Los Angeles County, Larry P. Fidler, Judge. Affirmed and affirmed as modified.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Juan Pablo Murillo.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Guadalupe Torres Rangel.

Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant Yovanni Velasquez.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

Following a joint jury trial, Juan Pablo Murillo, Guadalupe Torres Rangel and Yovanni Velasquez were each convicted of the first degree murder of 23-day-old Luis Garcia, the attempted premeditated murder of Francisco Clemente, two counts of assault with a semiautomatic firearm and conspiracy to commit murder in a gang-related shooting on September 15, 2007. Murillo and Rangel were also convicted of attempted extortion and conspiracy to commit extortion, and Murillo alone was convicted on additional counts of dissuading a witness and possession for sale of cocaine base and other controlled substances. As to each defendant firearm-use and gang enhancement allegations, as well as the gang-murder special circumstance imposed by Penal Code section 190.2, subdivision (a)(22),¹ were found true.

1 Statutory citations are to the Penal Code unless otherwise indicated.

On appeal, in addition to various claims of instructional, evidentiary and sentencing error, the defendants contend there was insufficient evidence to support the gang-murder special circumstance or the finding the baby's murder was committed for the benefit of the gang within the meaning of section 186.22, subdivision (b)(1). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The 18th Street Gang

The 18th Street gang is a large, predominantly Hispanic criminal street gang that originated in the 1960's in Los Angeles and operates through cliques or sects ultimately controlled by members of the Mexican Mafia. The defendants were members (or associates)² of the Columbia Lil Cycos (CLC), an 18th Street clique that controls an area of Los Angeles near MacArthur Park bordered by Wilshire Boulevard on the south, Beverly Boulevard on the north, Alvarado Street to the west and Union Avenue to the east. CLC members manage narcotics traffic within their territory by selling or supplying drugs to secondary dealers. CLC members also tax unlicensed street vendors who sell their wares within the densely populated neighborhoods east of MacArthur Park and individuals engaged in the thriving business for counterfeit documents sold to the numerous immigrant residents in the area.

2 Rangel claimed not to be a member of the 18th Street gang, and police witnesses were unable to identify him as a gang member.

2. CLC's Extortion of Street Vendors

The People presented evidence of CLC's widespread extortion of street vendors selling a variety of wares along 6th Street east of Alvarado Street. On May 6, 2007 a tostada vendor was approached by Rangel, accompanied by another man, who told her she would have to pay a fee to the 18th Street gang to sell items on the street. When she refused to pay, Rangel threatened to knock over her items. Using a cell phone the vendor's husband photographed Rangel, called the police and provided the responding officer with a copy of the picture. On October 19, 2007 the street vendor identified Rangel from a group of six photographs (a "six-pack" photographic lineup) as the person who had threatened them.

On May 6, 2007 Rangel approached another street vendor selling electronic items on the same part of 6th Street. He demanded $15 per day in "rent" to sell on the street; the vendor refused to pay. Rangel beckoned to two men nearby who grabbed two $80 stereo players from the vendor's cart. She chased one of the men, but he pushed her to the ground. When she returned to her merchandise, it had been thrown to the street; and people were taking her goods. The vendor reported the incident to the police and identified Rangel in a photographic lineup on December 27, 2007 as the person who had demanded money from her on this and several other occasions. She also identified him at trial.

Clemente, one of the victims of the September 15, 2007 shooting, had sold electronic items in the same area for approximately 18 months before the shooting. During that time Rangel approached Clemente on four or five occasions (sometimes accompanied by a second man) and demanded money for the right to sell on the street. Clemente's girlfriend, Jessica Castaneda Guzman, was present on those occasions and also identified Rangel. On the first occasion Clemente gave Rangel $5. Several months before the September 2007 shooting, six men who appeared to Clemente to be gang members approached Clemente and told him he had to pay to sell his merchandise or they would beat him up. Clemente pulled out a knife; the men fled. Clemente was 60 percent sure one of the six men had been Velasquez. On another occasion, a week or two before the shooting, a man Clemente identified as Sergio Pantoja, the leader of the CLC clique of the 18th Street gang, threatened he would "send [Clemente] to hell" if he did not leave the street. Clemente refused to leave.

3. The September 15, 2007 Shooting

On September 15, 2007 Clemente was selling his merchandise at 6th Street and South Burlington Avenue. He was accompanied by Guzman and another friend, Daniella Garcia, whose infant son was in a stroller near her, behind Clemente. Around 6:00 p.m. Rangel demanded $80 from Clemente, who refused to pay. Around 9:00 p.m. a man holding a gun stepped out of a nearby video store, walked toward Clemente and shot at him from six or seven feet away. Several shots hit Clemente as he rose from the ground.³ Another shot struck the baby, seated in the stroller behind Clemente, killing him.

3 Clemente was shot in the right face and neck area, upper right chest and right abdomen. He suffered life-threatening wounds to his chest and head and spent 15 days in the hospital.

4. The Investigation

Los Angeles police officers interviewed as many of the street vendors as they could locate in the days immediately after the shooting. On September 27, 2007 an officer spoke with Jessica M., a 14-year-old girl who helped her parents sell items along 6th Street. Having been threatened by several members of the 18th Street gang to keep quiet,⁴ Jessica claimed she had been at soccer practice at the time of the shooting. On October 1, 2007, however, Jessica called the officer and tried to give information about the shooting without disclosing her identity. The officer recognized her voice, and Jessica terminated the call. The officer again approached Jessica, who told him what she had seen that evening. According to Jessica, six 18th Street gang members, including Murillo and Rangel (whom she knew by their gang monikers), were walking in the area immediately before the shooting; and she realized something was about to happen. She saw one member of the group point toward Clemente. Some minutes later she saw members of the group separate and begin scanning the crowd as if they were on the lookout. Murillo stood three feet from Jessica and acted as if he were trying to block her view, while he also watched for police. One of the men, Giovanni Macedo, pointed a gun toward Clemente (and the baby) and fired several shots. All of the men then ran as the scene became chaotic.

4 About an hour after the shooting, Murillo called Jessica and asked if she knew what happened. She replied he knew what had happened because he had been there. Murillo called several more times before she stopped taking his calls. The next day Jessica was approached by another gang member (whom she knew as "Grumpy") who asked if she knew what had happened. She denied knowing anything. Grumpy and another gang member, Raven, approached Jessica the next day and told her something would happen to her if she "snitched." The CLC's leader Pantoja also confronted her and told her he would send his homies after her if she snitched.

Based on Jessica's identification of Murillo, the police established a wiretap on his cell phone and recorded numerous calls about drug sales and other gang activities. Murillo was arrested on October 24, 2007. Police found a plastic bag containing cocaine in Murillo's truck and $852 in his pocket. The next day officers searched a house in the City of South Gate where Murillo had been staying and found $1,700 in cash, scales, cocaine in various forms and methamphetamine. A search of his cell phone records showed a call on September 17, 2007 to Jessica's telephone.

Two weeks later, on November 6, 2007, police detectives located Macedo in Utah. He was brought back to Los Angeles and gave detectives his account of the shooting. The remaining participants were arrested over the course of the next year, culminating with the arrest of Rangel in November 2008 after his return from Mexico.

5. The Information

The third amended information charged Macedo, Murillo, Rangel, Velasquez, David Gonzalez and Ralph Santiago with one count of murder (§ 187, subd. (a)), three counts of attempted willful, deliberate and premeditated murder (§§ 187, 664),⁵ one count of attempted extortion (§§ 520, 664), one count of conspiracy to commit extortion (§§ 182, 520) and one count of conspiracy to commit murder (§§ 182, 187).⁶ In connection with each count, the People alleged a principal had used a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivisions (d) and (e)(1). As to the murder count, the People also alleged the defendants had intentionally killed the victim while they were active participants in a criminal street gang and the murder was carried out to further the activities of the gang. (§ 190.2, subd. (a)(22).) As to all counts the information alleged the crimes had been committed to benefit a criminal street gang.⁷

5 At trial the court granted the People's motion to reduce the counts for the attempted murder of Guzman and Garcia to assault with a semiautomatic firearm (§ 245, subd. (b)).

6 Macedo, Santiago and Gonzalez were additionally charged in the information with voluntary manslaughter (§ 192, subd. (a)). Macedo and Gonzalez entered guilty pleas and testified at trial on behalf of the People. Gonzalez received a sentence of 11 years, and Macedo received a sentence of 51 years four months.

7 For simplicity on occasion this opinion uses the shorthand phrase "to benefit a criminal street gang" to refer to crimes that, in the statutory language, are 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." (§ 186.22, subd. (b)(1); see People v. Jones (2009) 47 Cal.4th 566, 571, fn. 2.)

Murillo was also charged with one count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), two counts of possession for sale of a controlled substance (cocaine base) (Health & Saf. Code, §§ 11351.5, 11352, subd. (a)), one count of possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378) and one count of possession for sale of a controlled substance (cocaine) (Health & Saf. Code, § 11351).

6. The People's Case

a. The gang witnesses

Macedo and Gonzalez appeared as witnesses for the People. Gonzalez testified he met with Velasquez, Murillo, Macedo and another gang member named Juvenal Mejia⁸ at a donut shop on 6th Street near Bonnie Brae Street on the evening of September 15, 2007. Gonzalez said he did not know Rangel at the time of the shooting. Murillo assigned roles to each participant, after which they walked separately to an alley near Burlington Avenue so as to not draw attention. At the alley Murillo gave Macedo a gun. Macedo told Gonzalez to wait for him in the alley and to take the gun from Macedo after the shooting. Gonzalez did as instructed and then gave the gun to Velasquez. Gonzalez identified Velasquez and Murillo at trial.

8 Mejia apparently fled to Mexico after the shooting and has never been located.

Macedo, who was 18 years old at the time of the shooting, identified Velasquez and Rangel as participants in the shooting and said Murillo, who was second in command of the CLC clique after Pantoja, organized the attack at Pantoja's direction. Macedo admitted he had previously helped Murillo collect rent (or taxes) from the drug dealers and street vendors in the area of MacArthur Park. Two weeks earlier, accompanied by Murillo, Macedo had forced a vendor off the street by kicking his wares and his car until the vendor left. At the time of the shooting Macedo was living with Murillo and other gang members in a house in South Gate.

A week or so before the shooting Murillo and Macedo had discussed the possibility of beating Clemente to force him to pay the gang's taxes, but Clemente was not on the street that day. On the day of the shooting Murillo came to the house and told Macedo to dress in "nice" clothes for a "jale," or job. Santiago drove Macedo and Murillo to the 6th Street area. Macedo and Murillo got out of the truck and walked to a donut shop where they met Velasquez, Rangel, Gonzalez and Mejia. After walking outside into a parking lot to avoid scrutiny, Rangel—not Murillo—gave Macedo a loaded, .22 caliber semiautomatic pistol Macedo recognized as a gun belonging to the gang. Murillo then assigned roles, designating Macedo as the shooter, Velasquez and Murillo as lookouts, Gonzalez to take the gun from Macedo after the shooting and Mejia to identify Clemente for Macedo. According to Murillo, it was Pantoja's idea to shoot Clemente rather than beat him.

After receiving their assignments, the members of the group headed to their positions. Mejia walked Macedo past Clemente several times to make sure Macedo understood which vendor was the target. Mejia and Macedo then walked into a video store, where Macedo spent a few minutes considering whether he wanted to shoot the vendor. Because Pantoja had on several occasions expressed displeasure with Macedo for not doing enough work for the gang and considered Macedo a possible snitch, Macedo decided to shoot Clemente as directed.

According to Macedo, he stepped out of the video store and walked a few steps toward Clemente, raised the gun with both hands, fired four shots at Clemente's head and then ran. He gave the gun to Gonzalez, climbed over the gate at the back of the alley and got into the waiting truck driven by Santiago. Santiago drove back to the house in South Gate. At that time Macedo assumed he had killed Clemente but did not know he had also shot and killed the Garcia infant.

About an hour after the shooting, Murillo arrived at the South Gate house and told Macedo he might have shot a pregnant woman. Murillo told Macedo not to worry. They burned the clothes they had been wearing and partied with their fellow gang members. The next day Pantoja came to the house and told Macedo he had "fucked up" because a pregnant woman or a baby had been shot. If a baby had been shot, other gangs would issue a "green light" on all 18th Street gang members.⁹ Pantoja also said Clemente had survived and would be able to identify Pantoja, who had personally threatened him to leave the area. Pantoja assured Macedo he would take care of the problem, however, by blaming the shooting on a neighboring gang.

9 In gang slang, to "green light" a person is to authorize a contract killing. A green light on an entire gang may be imposed for a perceived violation of gang rules, for instance, shooting at or killing a child. A green light on an entire gang authorizes members of other gangs to kill members of the green-lighted gang with impunity.

After meeting with Pantoja, Macedo went to his girlfriend's house to hide for a few days. Murillo called him and offered to bring him money. When Murillo arrived, he told Macedo to get in the car with him and Santiago, who was driving. Murillo told Macedo someone had snitched and they needed to leave for Mexico. They drove to the home of Flor Aquino, another 18th Street gang member. Later that night, Murillo, Macedo, Aquino, and another gang member called Ranger left for Tijuana.¹⁰ They checked into a hotel in Tijuana and partied for a few days before driving to Mexicali. Aquino was driving; and Macedo, who was recovering from a bad hangover, sat in the back of the car. Early in the morning, Murillo asked Aquino to stop at a rest stop and told Macedo to get in the front seat. As Macedo settled in the front seat, Murillo threw a rope around Macedo's neck and began to strangle him with Ranger's assistance. Macedo lost consciousness. He recovered as he slid down an embankment off the side of the road and successfully grabbed a protruding root before he plunged over the adjacent cliff. He climbed back up to the roadway and realized Murillo had stolen his shoes before tossing him over the edge of the road. Macedo was covered in blood and vomit and severely bruised around his neck.

10 Macedo referred to Ranger as Trooper, but Aquino and Murillo both called him Ranger.

Although badly injured, Macedo was able to flag down a trucker who drove him to Mexicali. Family members came for Macedo the next day and drove him back to the United States. Macedo and his girlfriend then fled to Utah, where he stayed until he was contacted by detectives from Los Angeles.

Aquino also testified and confirmed Macedo's account of Murillo's attack on Macedo. Murillo had warned Aquino in Tijuana the trip was a "hit" and they had to "take care of [Macedo] because he had fucked up." She testified that, after strangling Macedo with a rope and believing him to be dead, Murillo and Ranger had thrown him down an embankment by the side of the road.

b. Gang-expert testimony

Several Los Angeles police officers provided the foundational evidence linking the defendants to the 18th Street gang. One testified Velasquez had acknowledged his gang affiliation and moniker during a field stop in January 2001. Another officer had seen Velasquez tag the wall of an apartment complex in May 2001 with the combination "XV3 BG," denoting the number 18 for the gang and BG for his moniker. Velasquez again admitted his gang membership and moniker during an arrest in September 2002.

Murillo, who also used the name Antonio Hinojosa, admitted his gang affiliation in a May 2006 stop and bore tattoos identifying the gang on his hands, legs, left arm and head. Using his alias, he again identified himself as an 18th Street gang member in a September 26, 2007 stop only days after the shooting.

Los Angeles police officer Edgar Hernandez, who had several years of experience investigating the 18th Street gang, testified as a gang expert. Hernandez described the history, territory and identifying symbols of the CLC clique and documented several prior convictions of 18th Street gang members for offenses including murder, attempted murder and assault on a police officer to establish a pattern of criminal activity within the meaning of section 186.22. Hernandez had also had previous contact with both Murillo and Velasquez. Based on a hypothetical question incorporating the general facts of the case, Hernandez testified the shooting of Clemente and assaults on his companions had been committed for the benefit of the gang because the shooting was intended to teach Clemente and other vendors to have respect for the gang and to demonstrate the consequences of not paying taxes to the gang. Also, because the shooting had been committed by multiple gang members acting together, it was committed in association with gang members. The extortion of street vendors also benefited the 18th Street gang because it provided the gang with the funds to further its criminal activities. However, Hernandez opined the accidental shooting of the Garcia infant did not benefit the gang because it was likely to invite retribution in the form of a green light against all 18th Street/CLC gang members, including the head of the gang, who can be held to answer for the actions of subordinate gang members. In this respect, the attempted murder of Macedo was intended as discipline for killing the baby and to quell the possibility of a green light against the remaining CLC members.

7. The Defense Case

Murillo and Rangel testified on their own behalf. According to Rangel, he had no gang affiliation. He had come to the United States in 2003 and had supported himself and his family in part by selling DVDs and videotapes in the area of 6th Street and Burlington Avenue. He was asked to pay rent and complied. After a while, other vendors began giving their rent to Rangel, who would pass it on to a rent collector. He agreed to collect rent for the gang because it relieved him of his obligation to pay. At the time of the shooting he was waiting for his wife in a nearby parking lot and preparing a bottle for his son. He heard shots and saw people gathering but went home once his wife and daughter joined them. After the shooting, he returned to Mexico but came back in November 2008 to prove his innocence when he learned he was wanted by police. In an interview with detectives on November 18, 2008, he acknowledged Mejia had warned him Clemente was going to be shot; but Rangel did not know when it was supposed to happen.

Murillo admitted being an 18th Street gang member but denied he had any leadership status in the CLC. He also acknowledged dealing drugs but claimed he had not been involved in taxing street vendors. He insisted, however, a vendor who does not pay the gang ordinarily would be beaten rather than shot. Murillo denied planning or participating in the shooting of Clemente. He had been in the area on the night of the shooting, where he had seen Jessica, and, while speaking with her, heard four gunshots. He left by taxi and went to a friend's house. When he heard a pregnant woman had been shot, he called Jessica to find out what had happened; but she did not answer. The next day she told him a baby had been shot.

Murillo also acknowledged he knew Macedo, whom he had met approximately a month before the shooting. Murillo did not trust Macedo and knew Pantoja believed Macedo to be a snitch. Nevertheless, he allowed Macedo to tag along when he learned Murillo, Aquino and Ranger were going to Tijuana and Mexicali and asked to join them. At some point on the trip, Macedo admitted to Ranger he was the gunman who had killed the baby. Murillo became enraged and began to hit Macedo. Murillo pulled Macedo out of the car with a rope and beat him until he lost consciousness. Murillo threw Macedo's shoes down the slope but denied throwing him over the embankment. Murillo, Aquino and Ranger drove on to Mexicali, leaving Macedo by the roadside.

Velasquez did not testify at trial.

8. Verdict and Sentencing

The jury convicted Murillo on all counts, including the drug charges; Rangel on the murder, attempted murder, aggravated assault, extortion and conspiracy charges; and Velasquez on the murder, attempted murder, aggravated assault and conspiracy to commit murder charges.¹¹ As to the first degree murder count, the jury found true the special allegation the three defendants had intentionally killed the victim while active participants in a criminal street gang and the murder had been carried out to further the activities of the criminal street gang (§ 190.2, subd. (a)(22)). As to the murder, attempted murder and conspiracy to commit murder, the jury found true the special allegation a principal personally used and intentionally discharged a firearm, causing great bodily injury or death to the victims (§ 12022.53, subds. (d), (e).) In addition, as to all counts, the jury found true the crimes had been committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).¹²

11 Velasquez was acquitted on the extortion and conspiracy to commit extortion charges.

12 Rangel's motion for a new trial was denied.

Rangel and Murillo were each sentenced to state prison for life without the possibility of parole for first degree murder with the gang special circumstance, plus consecutive indeterminate terms of 25 years to life for conspiracy to commit murder and seven years to life for conspiracy to commit extortion. Each of these three indeterminate life terms was further enhanced pursuant to section 12022.53, subdivisions (d) and (e), by 25 years to life for use of a firearm causing death or great bodily injury. Sentence on the attempted murder count was stayed under section 654. The trial court imposed the upper term of nine years on the first aggravated assault, plus a five-year gang enhancement under section 186.22, subdivision (b)(1)(B), and a consecutive two-year term (one-third the middle term) for the second aggravated assault count, with a one year eight month gang enhancement. Sentence for the attempted extortion count was stayed pursuant to section 654. In total, Rangel received an aggregate state prison sentence of life without the possibility of parole, plus 107 years to life, plus 17 years eight months.

Murillo was additionally sentenced to consecutive terms of seven years to life on the witness intimidation count, the alternate sentence pursuant to section 186.22, subdivision (b)(4)(C), plus an addition seven years four months on the three drug counts with gang enhancements, for an aggregate state prison sentence of life without the possibility of parole, plus 114 years to life, plus 25 years.

Velasquez, who was acquitted on the extortion counts, was sentenced to state prison for life without the possibility of parole, plus 25 years to life for murder in the first degree with the special circumstance and the related gun-use enhancement; two consecutive indeterminate terms of 25 years to life for conspiracy to commit murder with the firearm-use enhancement, plus a determinate sentence of 17 years eight months for the aggravated assault counts and associated gang enhancements.

CONTENTIONS

Murillo contends the trial court erred when it admitted evidence of other misconduct under Evidence Code section 1101 and abused its discretion under Evidence Code section 352 by admitting inflammatory and cumulative evidence relating to the death of Luis Garcia. Murillo also contends there was insufficient evidence to support the aggravated assault convictions or the murder-related gang enhancements, including the gang-murder special circumstance.

Rangel contends there was insufficient evidence to support the gang-murder special circumstance and the findings he had actively participated in, or knew of, the criminal activities of the 18th Street gang. He also contends there was insufficient evidence to support the jury's finding the murder of Luis Garcia benefited the 18th Street gang. Rangel also asserts three jury instructions (CALCRIM Nos. 362, 370 and 372) violated his due process rights; the trial court abused its discretion by precluding evidence challenging Macedo's identification of him; the prosecutor engaged in misconduct; the court wrongly denied his motion for a new trial based on newly discovered evidence; and the section 12022.53, subdivisions (d) and (e), enhancement on the murder count should have been stayed pursuant to section 654. The People concede Rangel's contention the court erred in imposing a firearm enhancement on the conspiracy to commit extortion count because the enhancement was not found to be true by the jury.

Velasquez contends his motion to sever the drug counts against Murillo from the remainder of the case should have been granted; the evidence of the attempted murder of Macedo was inadmissible against Velasquez and improperly inflamed the jury against him; and the court's failure to instruct the jury that Aquino was an accomplice adversely affected the jury's deliberations.

Pursuant to California Rules of Court, rule 8.200(a)(5), each appellant has joined in the others' arguments to the extent they are helpful to his appeal. For clarity, although mindful of the joinders, we identify the individual who has raised a specific claim in our discussion of the issues.

DISCUSSION

1. There Was Sufficient Evidence To Support Imposition of the Gang-Related Enhancements on All Defendants

To assess a claim of insufficient evidence in a criminal case, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

a. The jury's findings the baby's murder was committed for the benefit of the

gang and to further its activities are supported by substantial evidence

The California Street Terrorism Enforcement and Prevention Act, section 186.20 et

seq., was enacted in 1988 to address the "crisis . . . caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (§ 186.21.) It has been amended several times, including by voter initiative, to broaden its scope with no discernible change in intent. (See People v. Shabazz (2006) 38 Cal.4th 55, 65 (Shabazz), quoting Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 2, subd. (h), p. 119 ["'Gang-related crimes pose a unique threat to the public because of gang members' organization and solidarity. Gang-related felonies should result in severe penalties. Life without the possibility of parole or death should be available to murderers who kill as part of any gang-related activity.'"].)

The defendants challenge the evidentiary basis for two separate findings of the jury relating to the murder of the Garcia infant: Section 186.22, subdivision (b), which establishes alternative or additional penalties for felons whose crimes were 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;"¹³ and section 190.2, subdivision (a)(22), which authorizes a defendant to be sentenced to "death or imprisonment in the state prison for life without the possibility of parole" if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . and the murder was carried out to further the activities of the criminal street gang."

13 To prove a gang is a "criminal street gang," the prosecution must demonstrate it has as one of its "primary activities" the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and it has engaged in a "'pattern of criminal gang activity'" by committing two or more such "'predicate offenses.'" (§ 186.22, subds. (e), (f).)

Typically, the elements required for these enhancements are established by expert testimony provided by law enforcement professionals who have experience in the area of gang culture and psychology. (See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 618 [expert testimony by police detective particularly appropriate in gang enhancement case to assist fact finder in understanding gang behavior]; People v. Gonzalez (2006) 38 Cal.4th 932, 944-946 [reaffirming Gardeley and admissibility of officer's expert testimony in the area of gang culture and psychology]; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1208 [affirming admission of officer's expert opinion, based on hypothetical similar to facts in case, that sole gunman who displayed no gang signs during shooting acted to bolster gang and his own reputation in gang]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 ["[i]t is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes 'respect'"].)

In this case, the gang expert testified the attempted murder of Clemente, as well as all other charged crimes, with the exception of the murder of the Garcia infant, were committed for the benefit of the 18th Street gang. The gang expert made an exception for the baby's murder because the shooting of a child typically provokes retribution by other gangs. The defendants, therefore, argue the jury's findings the murder of the baby had been committed for the benefit of the gang (§ 186.22, subd. (b)) and to further its activities (§ 190.2, subd. (a)(22)) were not supported by substantial evidence.

The inquiry, however, even if typically aided by expert testimony, is not conditioned on that testimony. Expert testimony is not binding on a jury, which remains free to reject it even if the testimony is uncontradicted. (See People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232; People v. Wright (1988) 45 Cal.3d 1126, 1142-1143.) In this instance the jury appears to have intuited what the gang expert failed to appreciate, that is, the gang's motive for shooting Clemente was the same motive that killed the infant, albeit accidentally.¹⁴ As the Supreme Court has repeatedly held, when a defendant intends to kill a victim but misses and instead kills a bystander, the intent to kill the intended victim is imputed to the resulting death of the bystander and the defendant is liable for the murder of the unintended victim. (See Shabazz, supra, 38 Cal.4th at p. 62; People v. Concha (2009) 47 Cal.4th 653, 664.) In Shabazz the Court relied upon the transferred intent doctrine to uphold the jury's imposition of the gang-murder special circumstance under section 190.2, subdivision (a)(22), when the defendant failed to kill the intended target and instead killed another person. As the Court explained, the transferred intent doctrine "'connotes a policy—that a defendant who shoots at an intended victim with intent to kill but misses and hits a bystander instead should be subject to the same criminal liability that would have been imposed had he hit his intended mark.'" (Shabazz, at p. 62, quoting People v. Scott (1996) 14 Cal.4th 544, 551.) The Court emphasized the underlying purpose of gang legislation—there, section 190.2 enacted pursuant to voter initiative:¹⁵ "[N]either the focus of the proposition nor the intent of the electorate was directed to a particular class of victim . . . but rather to the specific act of gang-related killing." (Shabazz, at p. 65.)

14 The jury was instructed with at least four relevant instructions in this regard: CALCRIM No. 332 ["A witness was allowed to testify as an expert and to give an opinion. You must consider the opinion, but you are not required to accept [it] as correct."]; CALCRIM No. 562 ["[i]f the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed"]; CALCRIM No. 736 [establishing elements for gang-murder special circumstance, including "[t]he murder was carried out to further the activities of the criminal street gang"]; and CALCRIM No. 1401 [establishing elements for deciding whether murder was committed for benefit of the gang under § 186.22].

15 Section 190.2, subdivision (a)(22), was enacted as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, an initiative measure adopted by the electorate in March 2000. (See Shabazz, supra, 38 Cal.4th at p. 64.)

Thus, whether the defendants and the expert are correct the resulting murder of the baby could not benefit the 18th Street gang and would, in fact, actually harm the gang, there is little question the defendants here undertook the acts that resulted in the baby's death for the benefit of the gang and to further its criminal activities. Accordingly, with respect to the murder of the infant Garcia, the jury's imposition of the section 186.22, subdivision (b), enhancement for crimes committed for the benefit of a criminal street gang, as well as the gang-murder special circumstance under section 190.2, subdivision (a)(22), was supported by substantial evidence.

b. The gang-murder special circumstance was properly applied to Rangel

As described above, section 190.2, subdivision (a)(22), mandates a defendant be sentenced to "death or imprisonment in the state prison for life without the possibility of parole" if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . and the murder was carried out to further the activities of the criminal street gang." Rangel contends there was insufficient evidence to impose the gang-murder special circumstance on him because there was no evidence he was an 18th Street gang member or had knowledge of the gang's criminal activities other than the taxing of street vendors. According to Rangel, he was nothing more than a street vendor who collected taxes from other vendors in order to avoid paying taxes himself—a passive conduit who did not actively participate in the gang's criminal activities and had no knowledge of its criminal purposes.

In People v. Carr (2010) 190 Cal.App.4th 475, 485 (Carr), we considered whether section 190.2, subdivision (a), required the People to establish a defendant's subjective knowledge of the criminal activities of a particular street gang. Although we found no such requirement in the statutory language, we concluded "there is a constitutional requirement that, before a defendant can be penalized for being an active participant in a criminal organization—as section 190.2, subdivision (a)(22), undoubtedly does—the defendant must be shown to have had knowledge of the gang's criminal purposes." (Carr, at p. 487.)

The requisite knowledge may be inferred from circumstantial evidence adduced at trial. As we explained in Carr, "the evidence that allows a jury to find a felony was committed for the benefit of a gang within the meaning of section 186.22, subdivision (b)(1), also typically supports a finding the defendant knew of the criminal activities of the gang." (Carr, supra, 190 Cal.App.4th at p. 488.) "[J]ust as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities." (Id. at p. 489, fn. omitted.)

Rangel urges us to reject the jury's finding because, according to him, the sole evidence linking him to the shooting—Macedo's testimony Rangel gave him the gun— was inherently unreliable and even illogical because Rangel was never identified by anyone as a member of the 18th Street gang. Section 190.2, subdivision (a), however, does not criminalize gang membership; it targets "active participation" in a gang's activities. (Cf. § 186.22, subd. (i) [conviction for street terrorism pursuant to § 186.22, subd. (a) (active participation in a gang) does not require proof of membership in gang; "[a]ctive participation in the criminal street gang is all that is required"]; see also People v. Castenada (2000) 23 Cal.4th 743, 747 ["we construe the statutory language 'actively participates in any criminal street gang' (§ 186.22, subd. (a)) as meaning involvement with a criminal street gang that is more than nominal or passive"].)

Regardless of Macedo's testimony, which the jury was free to disregard but which we are not (see People v. Zamudio, supra, 43 Cal.4th at p. 357), Rangel has ignored the highly probative testimony of other street vendors who testified he not only collected taxes but also, in the presence of other gang members, confronted the vendors and threatened them when they refused to pay. Far from being a passive conduit, Rangel assumed a role and responsibility as an enforcer for the gang's taxation of vendors. Jessica knew Rangel from these activities and identified him as one of the six men involved in the shooting. Indeed, Clemente was shot because he had rejected the gang's (including Rangel's) demands for payment, and Rangel admitted Mejia had told him Clemente would be shot for his recalcitrance. Based on this evidence, there is ample evidence to support the jury's finding Rangel actively participated in the criminal activities of the 18th Street gang and was knowledgeable about its criminal purposes.¹⁶

16 Velasquez joins in Rangel's argument contending there was no evidence he was a member of the gang in 2007 when the shooting occurred. As explained above, the prosecution was not required to prove Velasquez's current membership in the gang. His former membership in the gang was supported by substantial evidence, and the jury was entitled to infer his knowledge of the gang's criminal intent from his past participation in gang activities and the testimony of multiple witnesses implicating him in the shooting.

2. Substantial Evidence Supported the Aggravated Assault Convictions

Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault, which is a general intent crime, "does not require a specific intent to injure the victim" but rather "'the general intent to willfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another,'" "i.e. a battery." (People v. Wyatt (2010) 48 Cal.4th 776, 780; accord, People v. Williams (2001) 26 Cal.4th 779, 788; People v. Rocha (1971) 3 Cal.3d 893, 899.)

Murillo contends there was no intent to commit a battery against Clemente's companions and thus insufficient evidence to support the aggravated assault charges. He argues, "standing next to an intended murder victim is not sufficient to transform one into an assault victim." Murillo principally relies upon the Supreme Court's decision in People v. Bland (2002) 28 Cal.4th 313 (Bland), in which the Court barred the application of the doctrine of transferred intent to the crime of attempted murder. In Bland the defendant had fired at a car driven by a rival gang member, killed the intended target and also wounded two passengers. (Id. at p. 318.) The defendant challenged his conviction for attempted murder of the two passengers, raising the question, in the Court's words, "how can a jury rationally decide which of many persons the defendant did not intend to kill were attempted murder victims on a transferred intent theory? To how many unintended persons can an intent to kill be transferred?" (Id. at p. 329.) The Court concluded the doctrine of transferred intent does not extend to what it described at one point as "an inchoate crime like attempted murder." (Id. at p. 327.)

Murillo focuses on the phrase "an inchoate crime like attempted murder" and argues assault is an inchoate crime for which intent to harm one person should not be transferred to an unintended victim. In attempting to apply Bland to a case of aggravated assault, Murillo misconstrues the opinion's reach. Bland held a defendant creates a "kill zone" when he attacks a target by a method that could readily harm those in the target's vicinity: "Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone." (Bland, supra, 28 Cal.4th at p. 330.) This principle correlates with the Court's earlier decision in Williams, in which the Court addressed the mental state required for the crime of assault: "[A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known." (Williams, supra, 26 Cal.4th at p. 788.) Significantly, "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)

Shortly after Bland and Williams were decided, this court in People v. Riva (2003) 112 Cal.App.4th 981 considered a defendant's conviction for aggravated assault arising from charges he had shot from one car at the occupants of another car and hit a pedestrian by mistake. In affirming his conviction for assault on the pedestrian,¹⁷ we stated, "[t]he facts in this case would lead a reasonable person to realize if he fired a gun at someone in a car at this time of day in this kind of neighborhood the bullet could strike a pedestrian and a battery would directly, naturally and probably result from his conduct." (Riva, at p. 998; see also People v. Felix (2009) 172 Cal.App.4th 1618, 1630 [affirming aggravated assault convictions when defendant fired at house knowing former girlfriend's family was likely at home].)

17 In both Williams and Riva the issue presented was the adequacy of the assault jury instruction. Murillo has not challenged CALCRIM No. 875, the aggravated assault instruction given here.

More recently, in People v. Trujillo (2010) 181 Cal.App.4th 1344, the defendant, while riding in a car, fired several shots at another car occupied by a driver and a backseat passenger, fortunately hitting neither of the occupants. Relying on the case law just discussed, the Fourth District Court of Appeal affirmed the defendant's convictions for assault with a firearm, even in the absence of proof he knew there had been a passenger in the car. As the court explained, "[t]he jurors could have reasonably found that a person with actual knowledge that he is shooting indiscriminately at a moving vehicle would realize that his conduct would directly, naturally, and probably result in a battery to anyone and everyone inside the [car]. . . . Whether defendant was subjectively aware of [the] risk [of hitting the backseat passenger] or had the specific intent to injure any occupant of the car is irrelevant." (Id. at p. 1357.)

Thus, Macedo's testimony he fired exclusively at Clemente and did not see Guzman, Garcia or the baby, or any of the dozens of other people on the street, does not vitiate the culpability of the defendants for his assaults on Guzman and Garcia. At 9:00 p.m. on a Saturday evening in a commercial district busy with pedestrian and vehicle traffic, Macedo and every other defendant had sufficient information to anticipate that someone other than Clemente, the intended target, could be harmed in the attack. As the Court noted in Williams, "a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (People v. Williams, supra, 26 Cal.4th at p. 788, fn. 3.) The evidence was more than adequate to support the convictions for aggravated assaults on Guzman and Garcia.

3. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Murillo's Attack on Macedo under Evidence Code Section 1101

California law has long precluded use of evidence of a person's character (a predisposition or propensity to engage in a particular type of behavior) as a basis for an inference that he or she acted in conformity with that character on a particular occasion. Evidence Code section 1101, subdivision (a), "prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) ¹⁸

18 Evidence Code section 1101, subdivision (a), states, "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."

Evidence Code section 1101, subdivision (b), clarifies, however, that this rule "'does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition.'" (Ewoldt, supra, 7 Cal.4th at p. 393, see People v. Falsetta (1999) 21 Cal.4th 903, 914 [historically "the rule against admitting evidence of the defendant's other bad acts to prove his present conduct was subject to far-ranging exceptions"].) "'[E]vidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes . . . if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent . . . .'" (People v. Carter (2005) 36 Cal.4th 1114, 1147.) "As Evidence Code section 1101, subdivision (b) recognizes, that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity, intent, and motive in the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion." (People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also People v. Walker (2006) 139 Cal.App.4th 782, 796.)

In addition to its relevance to an issue other than predisposition or propensity, to be admissible under Evidence Code section 1101, subdivision (b), the probative value of the evidence of uncharged crimes "must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Kipp (1998) 18 Cal.4th 349, 371; accord, People v. Carter, supra, 36 Cal.4th at p. 1149.) A trial court's determination of the admissibility of evidence of uncharged offenses is generally reviewed for an abuse of discretion. (Kipp, at p. 369 ["[o]n appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion"]; Carter, at p. 1149.)

Murillo argues his attack on Macedo had no relevance to any material fact in dispute at trial. In admitting the evidence the trial court found the evidence "germane . . . to show the structure of the gangs, how the gangs operate, [and] what the gang was willing to do in this case." The court also found the probative value of the evidence far outweighed its prejudicial impact and indicated it would consider a limiting instruction at a later time indicating the evidence was not being offered against Rangel or Velasquez. As no limiting instruction was ever requested by Rangel or Velasquez,¹⁹ the court instructed the jury with CALCRIM No. 375, which in part limits consideration of the evidence to "deciding whether or not: The defendant was the person who committed the offenses alleged in this case; or the defendant acted with intent to kill in this case; or the defendant had a motive to commit the offenses alleged in this case; or the defendant had a plan or scheme to commit the offenses alleged in this case. Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility. . . ."

19 The failure of Rangel and Velasquez to request a limiting instruction relating to the evidence or instruction forfeits any right to challenge these issues on appeal. (See People v. Hinton (2006) 37 Cal.4th 839, 875 ["'"in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct"'"].)

Murillo argues none of these enumerated grounds relates to the court's professed purpose for admitting the evidence of his attack on Macedo—how gangs are structured and how they operate. We disagree. Murillo testified he was a drug dealer but had no involvement in the shooting. He claimed his attack on Macedo was not lethal and had been precipitated by his outrage at learning Macedo was responsible for the death of a baby. The testimony of Macedo and Aquino about the attack not only rendered Murillo's testimony wholly incredible but also demonstrated the control the gang exercised over its members, as well as Murillo's own role in enforcing gang rules. At a minimum, Murillo's assumption of the role of disciplining Macedo gave rise to a justifiable inference by the jury Murillo was a gang leader who had authorized or been directly involved with the shooting.

4. The Trial Court Did Not Abuse Its Discretion in Admitting the Photographs of Bloody Clothing

A trial court's discretionary decision to admit photographs under Evidence Code section 352 will be upheld unless the prejudicial effect of such photographs so clearly outweighs their probative value that admission of the photographs resulted in a miscarriage of justice. (People v. Gurule (2002) 28 Cal.4th 557, 624; see People v. Barnett (1998) 17 Cal.4th 1044, 1118 [trial court's Evid. Code, § 352 rulings reviewed for abuse of discretion]; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [trial court's Evid. Code, § 352 ruling "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner than resulted in a manifest miscarriage of justice"].) As the Court acknowledged in Gurule, "'"[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant'" [citation], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative . . . ." (Gurule, at p. 624.) Prosecutors, however, "are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case." (Id. at p. 625.)

The trial court allowed the People here to introduce two of four photographs depicting bloody clothing of the infant and his mother. Of the two photographs admitted, one showed the baby's blood-stained shirt with a bullet hole and the other showed his mother's sweater covered in blood from lifting her baby after he was shot. Murillo argues the photographs were cumulative and not necessary to the determination of a disputed issue of fact.

The clothing was certainly relevant to the charges against the defendants. The bullet hole showed how the baby was killed, and the mother's sweater showed she was in the immediate vicinity and picked up her baby as he bled to death. Even if this evidence was cumulative, the photographs "were not of such a nature as to overcome the jury's rationality" (People v. Gurule, supra, 28 Cal.4th at p. 625) and were not unduly prejudicial. (See People v. Karis (1988) 46 Cal.3d 612, 638 [all evidence that tends to prove guilt is damaging or prejudicial to the defendant's case; the "prejudice" referred to in Evid. Code, § 352 "applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues"].)

5. The Trial Court Did Not Abuse Its Discretion in Denying Velasquez's Motion To Sever the Drug Counts Against Murillo

Section 954 permits two or more offenses of the same class or connected together in their commission to be consolidated for trial against a single defendant. "[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by law." (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) Similarly, "[w]hen two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly unless the court orders separate trials." (§ 1098; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 ["[j]oint trials are favored because they 'promote [economy and] efficiency' and '"serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts"'"].)

When a joint trial is authorized under sections 954 and 1098, the trial court retains discretion to order separate trials "'in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.'" (People v. Turner (1984) 37 Cal.3d 302, 312, disapproved on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1115; see also People v. Carter, supra, 36 Cal.4th at p. 1153 ["'[r]efusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case'"]; People v. Memro (1995) 11 Cal.4th 786, 851 [same].)

A court's denial of a motion for severance is reviewed for an abuse of discretion, "judged on the facts as they appeared at the time of ruling." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; see People v. Balderas (1985) 41 Cal.3d 144, 171 [appellate court reviews trial court's denial of pretrial severance motion based on the facts known and the showing made at the time of the motion itself].) "Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial." (Coffman and Marlow, at p. 41.)

Velasquez argues the evidence related to the drug charges against Murillo was unrelated to the charges against him, which arose from the shooting, and was not cross-admissible against him. According to Velasquez, the evidence prejudiced him because the sole evidence against him consisted of Jessica and Macedo's testimony he acted as a lookout during the shooting.

The Supreme Court, however, has never held that "the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice." (People v. Memro, supra, 11 Cal.4th at p. 850.) Having reviewed the extensive record and considered the remaining factors identified above, Velasquez's assertions regarding a disparity between the prejudicial effect of the evidence of Murillo's drug dealing, on the one hand, and the paucity of evidence against him, on the other hand, is misleading. The prosecution's case, which was amply supported by the evidence, was focused on the control exerted by the CLC clique of the 18th Street gang over the neighborhood. The gang exercised control over the taxing of vendors, the local drug trade and document forgery and enforced that control through violence, which culminated in the retributive shooting of Clemente, a street vendor who had rejected the gang's demands. The evidence related to the drug charges against Murillo included the drugs found in his truck and residence but also his numerous cell phone conversations organizing and directing drug dealing within the gang's territory. Far from being disconnected from that aspect of the gang's criminal conduct, Velasquez was identified as a long-term, and still active gang member involved in its drug trafficking. For instance, Macedo testified he had recently sold crack cocaine with Velasquez in a parking lot at 6th Street and Alvarado Street, and, in a conversation recorded by police during the post-shooting investigation, Murillo described Velasquez as an active drug dealer within the gang.

In short, the drug charges against Murillo were not the tail that wagged the dog in this murder trial, as Velasquez suggests. To be sure, the evidence related to the gang's conduct included transcripts of the cell phone calls Murillo made while being investigated for the shooting and drugs found within his control at the time he was arrested. However, Velasquez was not charged with these peripheral crimes and was not prejudiced by their inclusion in the case against Murillo.

6. The Challenged Instructions Did Not Violate the Due Process Rights of the Defendants

a. CALCRIM No. 370

CALCRIM No. 736, which defines the elements of the gang-murder special circumstance, requires the jury to find the defendant intentionally killed the victim "to further the activities of the criminal street gang." (See § 190.2, subd. (a)(22).) CALCRIM No. 370, a general instruction for criminal offenses, instructs the jury "[t]he People are not required to prove that the defendant had a motive to commit any of the crimes charged," but permits the jury to consider motive as a factor that, if present, may tend to show a defendant's guilt. Rangel contends a conflict exists between these two instructions that effectively reduced the People's burden of proof on the gang-murder special circumstance in violation of his due process rights.²⁰

20 The People insist Rangel and the other defendants have forfeited the issue by failing to object to the instruction at trial. But we review any claim of instructional error that affects a defendant's substantial rights whether or not trial counsel objected. (§ 1259 ["[t]he appellate court may also review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"]; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Of course, we can only determine if the defendant's substantial rights were affected by deciding if the instruction as given was flawed, and, if so, whether the error was prejudicial. That is, if Rangel's claim has merit, it has not been forfeited. Thus, we necessarily review the merits of his contention there was instructional error.

"The standard of review applicable to an instruction challenged on appeal as ambiguous is whether there is a reasonable likelihood that the jury applied the instruction in a way that denied the defendant a fair trial." (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1181; accord, People v. Thornton (2007) 41 Cal.4th 391, 436; People v. Richardson (2008) 43 Cal.4th 959, 1028.) "'[T]he correctness of the jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) We examine the jury instructions as a whole, along with the attorneys' closing arguments to the jury, to determine if the instructions sufficiently conveyed the correct legal principles. (See People v. Kelly (1992) 1 Cal.4th 495, 525-526.) Here, no reasonable jury was likely to misapply the challenged instruction.

The identical issue presented by Rangel was considered in People v. Fuentes (2009) 171 Cal.App.4th 1133 and rejected outright. As the court stated, "[a]n intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it." (Fuentes, at pp. 1139-1140.) The court distinguished the "common-sense concept of a motive" from the legal intent established as an element of particular crimes, which are the focus of criminal jury instructions: "By listing the various 'intents' the prosecution was required to prove (the intent to kill, the intent to further gang activity), while also saying the prosecution did not have to prove a motive, the instructions told the jury where to cut off the chain of reasons. This was done without saying anything that would confuse a reasonable juror." (Id. at p. 1140.)

Rangel asserts Fuentes was wrongly decided, pointing to the Supreme Court's distinction between motive and intent: "Motive, intent, and malice—contrary to appellant's assumption—are separate and disparate mental states." "Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice." (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) If motive describes "the reason a person chooses to commit a crime," argues Rangel, the finding required by section 190.2, subdivision (a), that a defendant killed "to further the activities of the criminal street gang" is a finding of motive and not intent.²¹

21 Rangel also relies on People v. Maurer (1995) 32 Cal.App.4th 1121, a case distinguished by the court in Fuentes because it concerned section 647.6, punishing acts or conduct "motivated" by an unnatural or abnormal sexual interest in the victim: "Since this offense includes a 'motivation' as one of its elements, a jury naturally would be confused by an instruction saying the prosecution need not prove the defendant's motive." (People v. Fuentes, supra, 171 Cal.App.4th at p. 1140; see also People v. Hillhouse, supra, 27 Cal.4th at p. 504 [distinguishing Maurer because, "although motive is not generally an element of a criminal offense, 'the offense of section 647.6 is a strange beast,' and it did have a motive as an element—an unnatural or abnormal sexual interest"].)

However, CALCRIM No. 370 by its terms applies to "the crimes charged," and not to gang enhancement allegations. (See People v. Snow (2003) 30 Cal.4th 43, 98 [no reasonable possibility of confusion in instructing with CALCRIM No. 370's predecessor, CALJIC No. 2.51, because the instruction refers to "'the crime charged,'" not to an enhancement]; see also People v. Wilson (2008) 43 Cal.4th 1, 22 [CALJIC No. 2.51 did not "'"undercut other instructions that correctly informed the jury that the prosecution had the burden of proving guilt beyond a reasonable doubt"'"].)²²

22 The jury was additionally instructed, pursuant to CALCRIM No. 1401, the People were required to prove, among other elements of the gang allegations, "[t]he defendant intended to assist, further, or promote criminal conduct by gang members." CALCRIM No. 1401 also informed the jury the People must prove "each allegation beyond a reasonable doubt" and directed, "If the People have not met this burden, you must find the allegation has not been proved."

We find the reasoning in Fuentes persuasive and Rangel's attempt to distinguish it unavailing. In sum, it is not reasonably likely the jury misunderstood or misapplied CALCRIM No. 370.

b. CALCRIM Nos. 362 and 372

Defendants challenge two instructions that allowed the jury to consider as evidence of guilt false and misleading statements made by the defendant (CALCRIM No. 362)²³ or the defendant's flight after the crime had been committed (CALCRIM No. 372).²⁴ Defendants contend these instructions authorized the jury to make irrational permissive inferences of guilt in violation of due process.

23 As given in this case CALCRIM No. 362 provides, "If a defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show that he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding any other defendant's guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence the defendant made such a statement cannot prove guilt by itself."

24 CALCRIM No. 372 as given by the trial court provides, "If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."

"A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." (People v. Mendoza (2000) 24 Cal.4th 130, 180 (Mendoza).) In People v. Howard (2008) 42 Cal.4th 1000 the Supreme Court rejected the contention CALCRIM No. 362, and its predecessor CALJIC No. 2.03,²⁵ invite the jury to draw irrational and impermissible inferences with regard to a defendant's state of mind at the time the offense was committed. (Id. at p. 1021.) Rangel, however, contends that, with respect to CALCRIM No. 362, this holding is dictum and the replacement of the phrase "consciousness of guilt" with the phrase "aware of his guilt of the crime" requires a different result.

25 CALJIC No. 2.03 provides: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crime or crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."

We fail to see any meaningful difference in the two phrases (other than the use by CALCRIM of more easily understood language). (See People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1158-1159.) CALCRIM No. 362 is permissive, not mandatory, and allowed the jury to compare the testimony of Rangel and Murillo with other evidence to determine whether any of their statements was "false or deliberately misleading, and if so, what weight should be given to that evidence." (People v. McGowan (2008) 160 Cal.App.4th 1099, 1104.) The jury could properly infer whether either defendant was aware of his guilt and could consider that inference along with other evidence to reach a verdict. (People v. Showers (1968) 68 Cal.2d 639, 643 [jury may properly infer consciousness of guilt from defendant's false trial testimony regarding incriminating circumstances]; Mendoza, supra, 24 Cal.4th at p. 180 [that a defendant's flight may show a "consciousness of guilt" violates neither reason nor common sense].) The instruction did not pinpoint any specific statements made by either defendant and explicitly stated that a false or misleading statement could not prove guilt by itself. We presume the jury understood and followed the instruction given. (See People v. Yeoman (2003) 31 Cal.4th 93, 139.)

Rangel's argument with respect to CALCRIM No. 372 is even weaker. In Mendoza, supra, 24 Cal.4th 130, the Supreme Court rejected a similar due process challenge to CALCRIM No. 372's predecessor, CALJIC No. 2.52.²⁶ Applying Mendoza to CALCRIM No. 372 in People v. Hernández Ríos, supra, 151 Cal.App.4th 1154, the Fifth District found no meaningful difference between the words "aware" and "conscious": "Our short etymological analysis of Ríos's argument begins with a dictionary definition of the word 'aware': 'Having knowledge or cognizance.' (American Heritage Dict. (4th ed. 2000) p. 125.) In reliance on the dictionary's list of synonyms that include the word 'aware,' Ríos argues that the word 'implies knowledge gained through one's own perceptions or by means of information.' [Citation.] 'Conscious,' another word on the list, 'emphasizes the recognition of something sensed or felt' [citation], which, of course, focuses on the acquisition of knowledge not by 'information' but by 'perceptions.' [Citation.] Since the dictionary defines 'consciousness' as '[s]pecial awareness or sensitivity: class consciousness; race consciousness' [citation], ipso facto the special awareness that Mendoza allows a jury to infer from a flight instruction is 'guilt consciousness' (in the syntax of the dictionary) or 'consciousness of guilt' (in the syntax of the California Supreme Court). [Citation.] As the inference in Mendoza passes constitutional muster, so does the inference here." (Id. at pp. 1158-1159.) We fully agree.

26 CALJIC No. 2.52 does not refer to a defendant's "consciousness" or "aware[ness]" of guilt: "The [flight] [attempted flight] [escape] [attempted escape] [from custody] of a person [immediately] after the commission of a crime, or after [he][she] is accused of a crime, is not sufficient in itself to establish [his][her] guilty, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."

c. The missing accomplice instruction

Velasquez contends the trial court failed to instruct the jury Aquino was an accomplice and her testimony should be viewed with caution. (See CALCRIM No. 334.) Because Aquino was not an accomplice, the trial court did not err in failing to give this instruction.

Section 1111 provides "[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . . [¶] An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." To be charged with the identical offense, the witness must be considered a principal under section 31, which provides, "All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission." (See People v. Fauber (1992) 2 Cal.4th 792, 833.) "An accessory, however, is not liable to prosecution for the identical offense, and so is not an accomplice." (Fauber, at pp. 833-834.)²⁷ "Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom." (Id. at p. 834.) "If sufficient evidence is presented at trial to justify the conclusion that a witness is an accomplice, the trial court must so instruct the jury, even in the absence of a request." (People v. Brown (2003) 31 Cal.4th 518, 555.)

27 Section 32 defines an accessory as "[e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof . . . ."

There was no evidence at trial linking Aquino to any of the charges arising from the extortion of street vendors or the shooting. Aquino admitted she was a member of the 18th Street gang, but her connection with the charges exposed her at most to liability as an accessory rather than an accomplice. She became involved when Murillo demanded she drive him, along with Ranger and Macedo, first to San Diego and then Tijuana. In Tijuana she learned Murillo intended to kill Macedo because he had mishandled the murder of Clemente and had instead killed a baby. The attempted murder of Macedo was not one of the crimes charged, and there was no possibility she could have been charged as an accomplice at trial. Accordingly, the court did not err in failing to instruct the jury with CALCRIM No. 334.

7. The Prosecutor Did Not Improperly Describe the Concepts of Premeditation and Deliberation

Rangel contends the following exchange during the prosecutor's closing argument violated his constitutional right to due process by trivializing the proof required to convict him of first degree murder: "We all go through these stoplights every day of our lives. Sometimes we get to an intersection and the light is green, and then it turns yellow on us, and we make a decision in those few seconds. We premeditate." Over Velasquez's objection of "improper comparison," the court admonished the jury, "It's just a comparison. Again, ladies and gentlemen, this is argument. It's an attempt to persuade. The actual wording of the instruction will control." The prosecutor continued: "I'm trying to give you an example. You deliberate. . . . [H]ere's a yellow light. I know it could turn red. . . . If I don't go through it in time, I could cause a serious accident. But chances are I'm going to go through it and everything will be fine. That happens just about every single time. You consider what could happen, and you deliberate. You premeditate. You think of the consequence and you make a decision, and you go forward. Same thing with killing. But here they had a great deal of time to reflect on what they were going to do from the moment they were at that donut shop." At the close of argument, the jury was again instructed the arguments of counsel are not evidence (CALCRIM No. 222) and provided the legal definitions of premeditation and deliberation (CALCRIM No. 521).

"'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's . . . intemperate behavior violates the federal Constitution only when it comprises a pattern of conduct so "egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"'" (People v. Navarette (2003) 30 Cal.4th 458, 506; accord, People v. Morales (2001) 25 Cal.4th 34, 44.)

Nonetheless, it is generally improper for the prosecutor to misstate the law, "'particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.'" (People v. Hill (1998) 17 Cal.4th 800, 829; accord, People v. Nguyen (1995) 40 Cal.App.4th 28, 36 (Nguyen).) In Nguyen the court strongly disapproved a prosecutor's argument "suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry," before concluding any error was harmless because the jury had been correctly instructed by the court on the standard. (Id. at pp. 36-37.) In explaining its disapproval of the argument, the Nguyen court quoted People v. Brannon (1873) 47 Cal. 96, 97: "'The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required. . . . There must be in the minds of the jury an abiding conviction, to a moral certainty, of the truth of the charge, derived from a comparison and consideration of the evidence.'" (Nguyen, at p. 36.)

Relying on Nguyen in People v. Johnson (2004) 115 Cal.App.4th 1169, our colleagues in Division One of this court reversed the judgment of conviction because the trial court amplified the approved reasonable doubt instruction by analogizing it to decisions made by people in their daily lives such as planning a vacation or buying a home. "We are not prepared to say that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors or that such people finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor." (Johnson, at p. 1172.)

Although this case concerns the finding by the jury Garcia's murder was premeditated and deliberate, there are evident parallels to a jury's consideration of the reasonable doubt standard; and the prosecutor's quotidian street light example treads disturbingly close to the territory prohibited by Nguyen and Johnson. While it was fair for the prosecutor to point out that neither deliberation nor premeditation requires thought over an extended period (see People v. Halvorsen (2007) 42 Cal.4th 379, 419 [true test of deliberation and premeditation is not the duration of time but the extent of the reflection]), we are troubled by the trivial nature of the comparison. The prosecutor's comments, however, were preceded and followed by admonitions from the court that they were merely argument and that the jury should follow the definitions in the instructions on premeditation and deliberation. Ordinarily, a timely admonition from the court cures any harm. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375; see People v. Allen (1978) 77 Cal.App.3d 924, 934 ["[a] jury is presumed to have followed an admonition to disregard improper evidence particularly when there is an absence of bad faith," and "[i]t is only in the exceptional case that 'the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions'"]; People v. Boyette (2002) 29 Cal.4th 381, 436 [even if prosecutor had misstated the law, "the trial court properly instructed the jury on the law, and we presume the jury followed those instructions"]; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [jury presumed to have treated "the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade"].) In light of the trial court's repeated reminders to the jury to adhere to the language of the instructions rather than the argument of counsel, we conclude the prosecutor's comments did not rise to the level of the "exceptional" case and, consequently, did not irreparably taint the jury's appreciation of the appropriate legal standard for its finding the murder was premeditated and deliberate.

8. The Trial Court Properly Exercised Its Discretion in Excluding Rangel's Argument Contesting Macedo's Identification of Him

In his closing argument Rangel's defense counsel sought to challenge the identifications of Rangel by Macedo (and Jessica) by criticizing the failure of police investigators to use a double-blind procedure for witness identifications in which the officer presenting the line-up or photographic array does not know the identity of the suspect and is thus prevented from unconsciously signaling a choice to the witness. The trial court sustained the People's objection to the argument on the ground there had been no evidence at trial to support the theory, a ruling Rangel claims violated his right to effective counsel.

"A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact." (People v. Marshall (1996) 13 Cal.4th 799, 854.) Nonetheless, section 1044 "'vests the trial court with broad discretion to control the conduct of a criminal trial'" (People v. Cline (1998) 60 Cal.App.4th 1327, 1333),²⁸ and "[t]rial judges have the duty to responsibly and fairly control the proceedings to prohibit argument which is not supported by substantial evidence." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1390; see also Herring v. New York (1975) 422 U.S. 853, 862 [95 S.Ct. 2550, 45 L.Ed.2d 593] ["This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He [or she] may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He [or she] may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he [or she] must have broad discretion."].)

28 Section 1044 states: "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved."

In People v. Modesto (1967) 66 Cal.2d 695, disapproved on other grounds by Maine v. Superior Court (1968) 68 Cal.2d 375, 383, fn. 8, and People v. Sedeno (1974) 10 Cal.3d 703, 721, the trial judge did not permit defense counsel to suggest in closing argument the defendant saw "a mysterious assailant attacking [the victim] in front of her house" (Modesto, at p. 707), finding that there had been "'no testimony tending to indicate that the Defendant . . . observed anything in the yard or on the road.'" (Id. at p. 708, fn. 7.) The Supreme Court held, "[i]n ruling the argument improper, the trial judge was simply carrying out his duty to 'control all proceedings during the trial, and to limit . . . the argument of counsel to relevant and material matters' [citation] by confining counsel's factual argument to the record." (Id. at p. 708.)

Similarly, in Ponce, defense counsel argued to the jury the defendants had been intentionally falsely accused. The People requested the trial court instruct the jury there was no evidence to support such a defense theory; the trial court did so. On appeal the court concluded the trial court had not abused its discretion because there was no substantial evidence to support the accusation. "In the absence of such evidence, the trial court had a duty and a right to preclude defense counsel from pursuing such argument." (People v. Ponce, supra, 44 Cal.App.4th at p. 1390; see also People v. Stankewitz (1990) 51 Cal.3d 72, 102 ["[i]t is axiomatic that counsel may not state or assume facts in argument that are not in evidence"].)

The defense theory on the deficiencies in Macedo's photographic identification of Rangel suffered from a similar defect. While cross-examining one of the police investigators, Rangel's counsel asked whether the officer had used a double-blind approach in eliciting identifications from witnesses in this case. The officer acknowledged he knew of the method but responded he was "not a believer of that" and denied improperly signaling the witness which of the photographs depicted the suspects. Rangel's counsel did not thereafter introduce any expert testimony on the topic of witness identification procedures, including use of the double-blind approach to produce more reliable eyewitness identifications. Accordingly, there was no evidence in the record to support an argument that the procedure actually used was in some way deficient. The trial court did not abuse its discretion in sustaining the prosecutor's objection to the argument.

9. The Trial Court Did Not Abuse Its Discretion in Denying Rangel's Motion for a New Trial

Section 1181, subdivision 8, authorizes the court to grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: '"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."'" (People v. Delgado (1993) 5 Cal.4th 312, 328.) The trial court's decision to deny a motion for a new trial based upon newly discovered evidence is reviewed for an abuse of discretion: "'"The determination of a motion for a new trial [based on newly discovered evidence] rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."'" (Id. at p. 328.) "'"[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background."'" (Ibid.)

Rangel contends the trial court abused its discretion by rejecting his motion for a new trial based on his post-trial acquisition of the Mexican death certificate for his sister, who died on February 10, 2008. Rangel argues the death certificate established he did not flee to Mexico after the shooting to escape justice but to attend to his ailing sister. The trial court did not deny the motion because the evidence had been belatedly discovered, but because it was insufficiently probative of the point for which Rangel had submitted it. According to the trial court, viewed in light of the evidence at trial, the death certificate was "de minimis."

As the Supreme Court has directed, "'[t]o grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial.'" (People v. Verdugo (2010) 50 Cal.4th 263, 308.) The trial court properly weighed the evidence at trial and concluded the death certificate was essentially irrelevant in light of the overwhelming evidence of Rangel's guilt. There was no abuse of discretion.

10. Section 654 Does Not Bar Imposition of the Section 12022.53, Subdivisions (d) and (e), Firearm-use Enhancement

Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of criminal conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th 1203, 1216.)²⁹ "'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (Rodriguez, at p. 507; accord, People v. Lewis (2008) 43 Cal.4th 415, 519.)

29 Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

Rangel contends section 654 prevents him from being sentenced under two separate enhancements of the first degree murder conviction—the special circumstance under section 190.2, subdivision (a)(22) and the firearm-use/great bodily injury enhancement under section 12022.53, subdivisions (d) and (e)—each of which applies because the jury concluded the shooting was committed to further the activities of the 18th Street gang. According to Rangel, he was punished twice for the fact his conduct was gang-related; that is, he was sentenced to life without the possibility of parole on the murder count because of his gang activity and sentenced to an additional 25-years-to-life for the gun enhancement on the same count based on the same gang activity. Under section 654, he argues, the lesser penalty should be stricken or stayed.

Until recently the Supreme Court had not decided whether imposition of multiple enhancements for a single offense based on the same act or omission violates section 654 (see People v. Rodriguez, supra, 47 Cal.4th at p. 507 [expressly leaving open the question whether § 654 bars imposition of two different sentence enhancements for single offense when enhancements based on same act or omission]; see also People v. Palacios (2007) 41 Cal.4th 720, 728; People v. Oates (2004) 32 Cal.4th 1048, 1066, fn. 7; People v. Masbruch (1996) 13 Cal.4th 1001, 1013.) However, in People v. Ahmed (2011) 53 Cal.4th 156 (Ahmed), the Court concluded sentence enhancements are indeed subject to section 654 if the specific sentencing statutes themselves do not otherwise state whether more than one enhancement may be imposed. (Id. at p. 159.) "Only if the specific statutes do not provide the answer should the court turn to section 654." (Id. at pp. 159-160, 163.) If section 654 does apply, "the analysis must be adjusted to account for the differing natures of substantive crimes and enhancements." (Id. at p. 160.) "[E]nhancement provisions do not define criminal acts; rather, they increase the punishment for those acts. They focus on aspects of the criminal act that are not always present and that warrant additional punishment." (Id. at p. 163, citations and fn. omitted.)³⁰ "[W]hen applied to multiple enhancements for a single crime, section 654 bars multiple punishment for the same aspect of a criminal act." (Id. at p. 164.)

30 Significant to the inquiry here, the Court chose the word "aspect" to avoid confusion with statutes containing the words "circumstances" (e.g., § 190.2), factors or elements. (See Ahmed, supra, 53 Cal.4th at p. 163, fn. 3.)

Turning first to the statutory language, section 190.2, subdivision (a)(22), authorizes a defendant to be sentenced to "death or imprisonment in the state prison for life without the possibility of parole" if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang . . . and the murder was carried out to further the activities of the criminal street gang." Section 12022.53, subdivision (e), subjects a non-shooting principal to the same 25-year-to-life enhancement imposed on a shooter whose personal discharge of the firearm caused great bodily injury or death (§ 12022.53, subd. (d)), when the non-shooter has violated section 186.22. In this case, the jury found true the allegation under section 186.22, subdivision (b)(1), the murder had been "committed for the benefit of, at the direction of, or in association with [a] criminal street gang," thus triggering application of section 12022.53, subdivision (e).

Although we have recognized the requirement of section 190.2, subdivision (a) (22), that the murder must have been "carried out to further the activities of the criminal street gang," "substantially parallels the language of section 186.22, subdivision (b) (1)" (Carr, supra, 190 Cal.App.4th at p. 488), nothing in the language of either section suggests it is improper to impose both enhancements in the case of a gang murder accomplished by a firearm. As we have previously noted, the Legislature could easily have said so if it wished to preclude application of both enhancements,³¹ as it did in section 12022.53, subdivision (e)(2), which bars imposition of an additional gang enhancement under "Chapter 11 (commencing with Section 186.20) of Title 7 of Part I" unless the defendant "personally used or personally discharged a firearm in the commission of the offense." This exemption does not include section 190.2, creating, at minimum, the negative pregnant assumption that the gang-murder special circumstance under section 190.2, subdivision (a)(22), may be applied in addition to section 12022.53, subdivisions (d) and (e).³²

31 "We are guided by well-established principles of statutory construction. Our fundamental task is to ascertain the Legislature's intent and thereby effectuate the purpose of the statute. [Citations.] 'We begin with the statutory language because it is generally the most reliable indication of legislative intent.' [Citation.] 'If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.'" (Blaich v. West Hollywood Rent Stabilization Dept. (2011) 195 Cal.App.4th 1171, 1175.)

32 In fact, section 190.2, subdivision (a)(22), prescribes an alternate penalty for the gang-related, special circumstance murder, not a sentence enhancement. (See People v. Jones, supra, 47 Cal.4th at p. 576; People v. Bright (1996) 12 Cal.4th 652, 656, fn. 2, disapproved on another ground in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Nonetheless, for at least some purposes the term "enhancement" may include not only sentence enhancements but also alternate penalty provisions. (See People v. Brookfield (2009) 47 Cal.4th 583, 593-594.) We need not decide whether this is one such case because, in either event, section 654 does not bar imposition of both the life-without-possibility of parole term under section 190.2, subdivision (a)(22), and the firearm-use enhancement under section 12022.53, subdivisions (d) and (e)(1).
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If we were to consider the relevant "aspect" of the enhancements for purposes of an analysis under section 654, we would reach the same result. The gang-murder special circumstance applies whenever a murder is carried out for a gang purpose by whatever means the gang chooses. The section 12022.53, subdivisions (d) and (e), firearm-use enhancement applies when the gang-related crime is accomplished through the use of a firearm. Thus, one enhancement focuses on the purpose of the underlying murder, while the other focuses on the means the gang uses to accomplish the crime. Because the two separate enhancements differ in aspect, sentencing under both enhancements does not violate section 654.

11. Rangel's Count 6 Section 12022.53, subdivisions (d) and (e), Enhancement Must Be Stricken

The information alleged a section 12022.53, subdivisions (d) and (e), firearm-enhancement against all defendants on the charge of conspiracy to commit extortion (count 6). Rangel contends, and the People concede, the allegation against Rangel was never submitted to the jury; yet his sentence improperly reflected the enhancement. Accordingly, the enhancement must be stricken.

DISPOSITION

With respect to Rangel, the judgment is modified by striking the 25-year-to-life firearm-use enhancement under section 12022.53, subdivisions (d) and (e), on count 6, conspiracy to commit extortion. As modified, the judgment is affirmed. The abstract of judgment is ordered corrected to reflect the change to Rangel's sentence. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation. The judgments as to Murillo and Velasquez are affirmed.

PERLUSS, P. J. We concur:

WOODS, J.

JACKSON, J.