Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert Perry, Judge. Los Angeles County Super. Ct. No. BA259738
Law Offices of Allen G. Weinberg, Allen G. Weinberg, under appointment by the Court of Appeal, and Fay Arfa for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendant Carlos G. Navarette guilty of the murder of Jose Moreno in violation of Penal Code section 187, subdivision (a), and the attempted murder of Richard Osegueda (§§ 664, 187, subd. (a)), finding both crimes to be in the first degree, and that defendant personally and intentionally discharged a handgun to cause death and great bodily injury to his victims (§ 12022.53, subd. (d)). Defendant was also found guilty of assaulting Edward Simon with a semiautomatic handgun (§ 245, subd. (b)), with a true finding as to the personal use firearm enhancement (§§ 12022.5, 1192.7, subd. (c), 667.5, subd. (c)). The jury found defendant committed those three offenses for the benefit of a criminal street gang (§ 186.22, subd. (a)). Finally, defendant was convicted of possessing an assault weapon (§ 12280, subd. (b)), with the jury finding the gang allegation not true as to that offense.
All further statutory references are to the Penal Code, unless stated otherwise.
The trial court imposed consecutive terms of 25 years to life for the murder and the firearm enhancement (with the gang finding making defendant ineligible for parole for 15 years). For the attempted murder, defendant received a life term plus 25 years to life for the firearm enhancement. Defendant received a midterm sentence of six years for the assault, plus three years for the gang enhancement. Finally, on the assault weapon conviction, the court imposed eight months (one-third the midterm). All terms were ordered to be served consecutively.
In this timely appeal, defendant contends the trial court’s refusal to sever the murder and attempted murder counts from the assault and assault weapon charges violated his state and federal constitutional rights to a fair trial; there was constitutionally insufficient evidence to support the special findings that defendant committed the murder and attempted murder to benefit a criminal street gang; there was constitutionally insufficient evidence to support the “primary activities” element of the gang enhancements; and the trial court’s refusal to instruct on brandishing a weapon as a lesser included offense to the assault with a firearm charge violated defendant’s state and federal constitutional rights to due process and trial by jury. The Attorney General contends the trial court failed to impose mandatory court security fines under section 1465.8, subdivision (a)(1), on three of the four convictions.
After the opening brief was filed, defendant filed for substitution of counsel relieving appointed counsel in favor of retained counsel, Fay Afra, who represented defendant at trial. We granted counsel’s request for leave to file a supplemental opening brief. In that brief, defendant raises nine additional contentions. Initially, he contends the trial court violated his state and federal constitutional rights to a fair and impartial jury by refusing to grant defendant’s Batson/Wheeler motion. He also asserts there was constitutionally insufficient evidence to support: (1) the assault conviction because the victim’s identification of defendant was unreliable and because there was no substantial evidence that he intended to inflict a battery on the victim; (2) the murder and attempted murder convictions because there was no reliable percipient witness testimony identifying him as the shooter and because there was no substantial evidence of premeditation; (3) the first degree murder conviction because there was no substantial evidence that defendant had a specific intent to kill; and (4) the possession of an assault weapon conviction because there was no substantial evidence that defendant knew the weapon possessed the characteristics of an assault weapon. Defendant also contends the admission of hearsay statements by the prosecution’s gang expert violated his federal constitutional rights to due process, a fair trial, and to confront adverse witnesses. Finally, defendant contends the prosecutor committed misconduct by vouching for witness credibility in violation of defendant’s federal constitutional rights to due process and a fair trial.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
Finding only the Attorney General’s contention well taken, we order the judgment modified to reflect imposition of three additional court security fees. The judgment is otherwise affirmed in full.
STATEMENT OF FACTS
When Edward Simon left his home near Silverlake Boulevard in Los Angeles on the morning of January 18, 2004, he saw a gray, late model Chevrolet Silverado pickup truck parked in front of his house. It had an extended cab, tinted windows, custom lights below the headlights, chrome wheels, and was lowered. Just across from the pickup, a person in a hooded jacket was spray-painting a wall. As the painter completed the first two letters—“T-O”—Simon called for him to stop. The painter walked over to the Silverado’s passenger door. Simon approached to get the license plate number, but found the vehicle had no plates. A male Hispanic wearing baggy clothes and a hooded sweatshirt exited the driver seat and pointed a handgun at Simon. Simon later identified the gunman as defendant. He also recognized defendant’s weapon as an H-K (Heckler & Koch) “T” model with a stainless steel slide and a black frame. Defendant told Simon to mind his own business because “this was their hood.” The painter ran over from the pickup, kicked Simon, and swore at him to leave and “mind [his] own business.” While defendant trained the handgun on Simon, the painter finished his graffiti—“TOONERVILLE.” Defendant then drove his companion away in the Silverado.
That same handgun would later be found hidden in defendant’s Silverado.
On January 24, 2004, Richard Osegueda arranged to get together with his friend Jose Moreno. Osegueda drove to Moreno’s house on Seneca Avenue in the Los Feliz/Atwater neighborhood, picked him up at 10:00 p.m., and drove to the Blue Room bar in Burbank. There was no parking at the bar, so Osegueda drove to a nearby tow yard where he used to work and parked there. Osegueda’s friend, Juan, let them into the yard. Moreno and Osegueda joined Juan in the towing company’s office, where each of them “did a line” of methamphetamine—meaning they inhaled an inch-long portion of the drug through their noses. Within approximately 15 minutes, Juan drove Moreno and Osegueda to the bar. Osegueda entered first and ordered martinis for himself and Moreno, but the latter was not allowed inside because his driver’s license had expired, so Osegueda drank both cocktails and joined his friend outside.
It was stipulated that Osegueda had been convicted of a September 2004 misdemeanor offense—carrying a loaded firearm in a public place.
Osegueda was “feeling tipsy,” so he telephoned his friend Victoria Takamatsu and asked her to drive them home. She called him back and agreed to do so. Takamatsu met Osegueda at a parking lot across from the bar and drove him to the tow yard. Takamatsu left her car there and drove Osegueda back to the bar in his car, where she picked up Moreno and drove to his house, parking across the street. She accepted their invitation to have a drink at Moreno’s house. As they crossed the street, Osegueda realized he had forgotten his cigarettes and walked back to his car. Takamatsu was standing in front of Moreno’s house. When the men crossed the street, Osegueda saw a pickup truck drive toward them erratically. They reached the sidewalk, and the truck stopped behind them. Osegueda turned to see the driver step out, point a gun in their direction, and fire. He threw himself down on Moreno’s driveway and felt a bullet strike his foot. When the gunshots stopped, Osegueda crawled to the front porch and banged on the front door. He was lying in front of the door with his arms around his head. He heard the assailants step around him and felt something like a kick to his head. Shortly afterwards, he heard them walk away and drive off.
Osegueda identified the truck as being defendant’s Silverado.
Moreno opened the door and Osegueda saw Moreno’s chin was bleeding. Moreno said, “I’ve been shot, get the phone.” Moreno had received a fatal gunshot wound to his head. The bullet had been fired through the front screen door and into his chin. A blood analysis revealed no alcohol, but found a concentration of methamphetamine sufficient to indicate intoxication in Moreno. Osegueda suffered permanent damage from his gunshot injury.
Takamatsu recalled that she received a call from Osegueda asking her to drive him home from the Blue Room bar. She met him at a parking lot across the street from the bar. Takamatsu drove Osegueda up the street to the tow yard where he had parked his car. Because her Nissan was not registered and was smaller than Osegueda’s Honda, she left her car there and drove him back to the bar in the Honda, where they met Moreno. Takamatsu drove Osegueda and Moreno to the latter’s home on Seneca.
Takamatsu parked in front of Moreno’s house. Takamatsu noticed a truck parked six to seven houses down the street with its headlights and blue fog lights on. She would later identify it as defendant’s Silverado. As Moreno and Osegueda approached the house, the Silverado drove toward them. She heard Osegueda say, “Oh, shit.” Takamatsu turned in their direction and heard the driver angrily shout, “I’m tired of you little muther-fuckers [sic].” Then she saw him fire a gun out of the driver’s side window. As the driver continued to fire, Takamatsu ran behind a trash can by the driveway. Moreno and Osegueda ran in the opposite direction. After a few minutes, she heard the pickup truck drive away. She ran to the front door. Moreno was lying on the floor, blocking the door. Osegueda was crawling toward her from the kitchen. Terrified, she called the 9-1-1 operator at 12:56 a.m. to report the shooting incident.
On January 26, 2004, at 8:30 a.m., Officer Thomas Wich was part of a team of officers looking for defendant and his Silverado. The pickup was found in the parking area behind the apartment building on 4040 Brunswick Avenue, where defendant lived with his grandmother. That afternoon, defendant drove the Silverado out of the parking lot. The officers followed and arrested him at a nearby gas station. Defendant was in possession of keys to the Silverado’s ignition and to the apartment garage. There were gang-related photographs inside the Silverado’s glove compartment, one of which showed persons posed in front of a “Toonerville” mural, taken in territory contested by Toonerville and its rivals, the Rascals gang.
Detective Larry Burcher searched defendant’s pickup, finding a handgun in a closed fuse panel behind the steering wheel. It matched Simon’s description—a silver and black Heckler & Koch .45-caliber pistol, and it contained five live rounds. The vehicle, which was registered to defendant, also matched the detailed descriptions given by Simon and Takamatsu. A dark hooded sweatshirt was found in the truck. A paycheck stub issued to defendant by Los Angeles County was recovered from the truck, along with numerous credit union receipts for defendant’s account with his Brunswick Avenue apartment address. There was also a Department of Motor Vehicles application by defendant for replacement license plates for the Silverado.
Detective Jose Carrillo participated in a search of defendant’s apartment on January 26, 2004. The officers recovered a dark hooded sweatshirt. In a nightstand drawer, the officers found magazines for a .45-caliber Heckler & Koch semiautomatic pistol and a nine-millimeter Heckler & Koch handgun, along with nine-millimeter ammunition and a gun cleaning kit for a .45-caliber pistol. Also in the drawer was ammunition for a .30-caliber semiautomatic rifle. The nine-millimeter magazine had live rounds inside it. A drawing with the word “Toonerville” was found in the entertainment center. Letters addressed to defendant and documents with defendant’s name were found in the living room, along with a .30-caliber bullet under the sofa. A .30-caliber carbine rifle and a shotgun were recovered from the apartment’s locked garage.
Ballistics examination showed that the Heckler & Koch handgun found hidden in defendant’s Silverado had fired the 11 expended cartridges found at the scene of the Moreno/Osegueda shooting. The magazine in the apartment’s nightstand fit that same handgun.
Criminalist Vanessa Gould opined that the carbine rifle was an assault weapon as defined by California law because it had a pistol grip, a folding stock, and was a semiautomatic, centerfire rifle with the capacity to accept a detachable magazine.
To demonstrate defendant’s connection to the Silverado, Officer Jerado Loza testified that on December 10, 2003, he observed defendant standing next to the pickup, which was parked by Chevy Chase Park in Toonerville gang territory. When the officer approached, a number of people ran away. Officer Loza asked defendant about the others who had fled. Defendant said they were his friends, but did not admit to gang membership. The officer cited defendant for the Silverado’s tinted windows.
Officer Richard Gadsby testified as an expert in criminal street gangs. The Toonerville gang was founded in the 1950’s. It currently had approximately 300 members, with its territory covering northeast Atwater Village, from San Fernando Road in the east, to the Los Angeles River in the west, to part of Glendale in the north, and Los Feliz in the south. Toonerville identified itself with a cartoon train symbol. Its main rivals are the Rascal’s gang in the south, the Frogtown gang of the Elysian Valley, and the West Side Locos from Glendale. Moreno’s Seneca Avenue residence was in an area contested by Toonerville and Rascals, although members from the latter gang predominated.
Toonerville’s primary activities were committing assaults against rival gang members, robberies, narcotics sales, and “tagging”—vandalism by painting gang-identifying graffiti in a rival’s territory. The main reason for a Toonerville member to venture into Rascal’s territory was to assault those perceived to be members of the rival gang. The rivalry between the two gangs began in the 1980’s. It was especially active in 2004, with numerous assaults and shootings committed “back and forth” between them. In committing such assaults, Toonerville members were not especially careful to ensure their victims were actually Rascals and oftentimes they victimized innocent civilians. Assaults on nongang members served a gang-related purpose, as they would intimidate the neighborhood populace, discouraging them from reporting gang crimes.
Evidence of predicate felonies by other Toonerville members was admitted for the limited purpose of proving Toonerville was a criminal street gang under section 186.22—Raymond “Chub” Maldonado committed attempted robbery and murder in 2002 and Sergio “Psycho” Cabrera committed attempted murder, assault with a firearm, and drawing a firearm on a peace officer in 2000 and 2001.
Defendant was a self-admitted member of Toonerville, whose moniker was “Lalo” or “Lazy.” He was known to “hang out” in Toonerville gang locations with Toonerville members and to dress in a manner consistent with such membership. Defendant’s apartment was located in Toonerville territory. The drawing found in defendant’s apartment contained symbols typical of Toonerville membership and affiliation with the Mexican Mafia. One of the photographs recovered from defendant’s Silverado showed defendant in the company of Toonerville members Romero “Midget” Aguirre, Charles “Chuckie” Gothard, and Brandon “Ghost” Holoman. Another showed Holoman with a “V” tattoo on his forearm. Two other photographs showed Holoman and two other Toonerville members, all having tattoos. Gang members typically keep photographs of their gang associates or “road dogs.”
In response to a hypothetical question consistent with the prosecution evidence as to the January 18 incident involving Edward Simon, Officer Gadsby opined that the assault on Simon would have been committed for the benefit of Toonerville because it was an act of gang intimidation whereby Toonerville members entered territory claimed by the Rascals and used tagging to assert a counterclaim to the territory. Moreover, by pointing a gun at a resident, defendant effectively threatened him not to call the police, so the gang could pursue its illegal activities unhindered.
Similarly, in response to a hypothetical question patterned after the prosecution evidence as to the January 24 shooting incident, the expert opined the shootings would have been committed to benefit Toonerville because Moreno’s residence was in territory contested by Toonerville and the Rascals. At least three Rascals lived nearby, and the male victims matched the “general description” of Rascals, even if they were not affiliated with the gang. Both Toonerville and the Rascals are primarily male Hispanic gangs. The shootings, therefore, would be intended to intimidate gang rivals as well as innocent residents who lived in the neighborhood Toonerville sought to bring under its control. Additionally, Toonerville members had increasingly engaged in shootings of nongang members because the Rascals tended to congregate in areas that were “inaccessible to persons driving down the street.” The mere wearing of a beanie or a white T-shirt in Rascals territory would be enough to arouse Toonerville suspicions of Rascal membership.
As to possession of the assault weapon, Officer Gadsby opined that its possession would be intended for the benefit of Toonerville because gang members typically use such weapons on missions to shoot rivals.
Defense
Alphonso Word, defendant’s employment supervisor, testified that defendant worked for five years as a custodian in Van Nuys on the night shift on weekdays from 5:00 p.m. to 1:30 a.m. Defendant worked those hours on December 8 and 10 of 2003. His uniform consisted of grey pants and a burgundy shirt with a gray T-shirt underneath, and black shoes.
Dustin Madrid is a childhood friend of defendant and an acquaintance of Edward Simon. Madrid believed defendant and Simon knew each other; they had both been to Madrid’s house to socialize in 2001 or 2002.
Defendant presented an alibi defense to the Moreno/Osegueda shooting. Justin Gothard went to a concert at the Los Sports Arena on the evening of January 24, 2004 with defendant, defendant’s girlfriend Grace Flores, and Gothard’s brother Charles. The concert ended after midnight. Although defendant did not sit with him throughout the concert, they met up in the parking lot afterwards, before separating to go home. They all rode together in Flores’s Mustang, but Gothard went home with someone else. Gothard had never seen defendant in a 1999 Silverado. According to Christopher Rogokos, a security supervisor that night, the concert began at approximately 8:30 p.m. Rogokos saw his friend Gothard with defendant and Flores. The concert ended at midnight. Rogokos signed out at 12:30 a.m., but did not leave till sometime later. All the concertgoers would have left the arena by 12:30 a.m.
Flores had known defendant since 1998. During 2004, defendant worked from 5:00 p.m. until 2:00 a.m. on weekdays. Defendant had a Silverado, but on weekends they would typically use her Mustang. Defendant let others use his Silverado; often he left it unlocked with the ignition key under the mat or on top of a tire. He also left his garage door open. There were other Silverados in his neighborhood; there was another grey one that parked less than a mile from defendant’s residence.
Flores generally corroborated Gothard’s testimony concerning the January 24 concert. When the concert ended between midnight and 12:30 a.m., they all went to the parking lot together. Defendant drove Flores to her Granada Hills home in the Mustang; the Gothard brothers went home with a friend. Defendant spent the night with Flores in the San Fernando Valley. They slept in late and went to a 10:00 a.m. church service.
She also testified as to an alibi for the Simon incident. On Sunday January 18, 2004, she and defendant were in San Diego, having arrived the day before.
Jose Lopez, a university professor who developed classes and published articles on Chicano gangs and criminal justice, testified as a gang expert. As a youth—40 years ago—he was a gang member in Fullerton, and he served a three-year prison term for narcotic sales. In current Hispanic gang culture, the Mexican Mafia prison gang will place its own “shot-callers” in local gangs. Those persons receive direction from the prison gang and are responsible for collecting “taxes” paid to the Mexican Mafia out of the local gang’s revenues.
Concerning the Toonerville gang, Professor Lopez testified it had approximately 100 members, of which approximately 30 were “active” or “really involved.” The expert contradicted Officer Gadsby’s testimony on certain points: generally, gang members avoid giving any information to the police; they only admit membership when it cannot be denied. Gang members will not target and kill innocent persons; they do not engage in random shootings. As gang fashion and use of tattoos have become prevalent in the general public over the past decade, gang members have increasingly relied on brazen tattooing to advertise gang affiliation—large gang-specific tattoos in places that cannot be covered. Drug dealing is the core of gang activity. Territorial conflicts between gangs will often result from a gang’s effort to expand the locations of its narcotics trade. When gang members attack rivals, they typically make a gang challenge and identify their gang verbally or by gang signs.
The defense expert opined that defendant was not a gang member because he maintained steady employment, had no tattoos (the expert had never encountered a gang member without tattoos), and his family had no history of gang membership. There could be innocent reasons for defendant’s having photographs with gang members. It was unlikely the Moreno/Osegueda shooting was a gang crime because no gang threat was made and the victims were not gang members.
Rebuttal
Simon testified that he had met Madrid in 2000 or 2001. Simon, a very good friend of Madrid’s cousin, had twice been to Madrid’s home. On neither occasion was defendant present. Simon never socialized with Madrid; he was certain he did not see defendant before the January 18, 2004 incident.
Tabiri Wilder was in charge of security at the January 24, 2004 Sports Arena concert. The seats the defense witnesses said they occupied were not available for that concert. Based on the sign-out times for the security personnel that night, the concert ended between 11:15 and 11:30 p.m.
Detective Carrillo testified that the shortest route from the Sports Arena to Moreno’s residence was approximately 11.3 miles.
DISCUSSION
Severance
Defendant contends the trial court violated his state and federal constitutional rights to a fair trial when it denied his motion to sever the murder and attempted murder counts arising out of the January 24 incident (counts 1 and 2) from the assault and weapon possession counts (counts 3 and 4). His claim fails because the joinder of those claims was authorized by statute and was nonprejudicial.
Section 954 provides in pertinent part: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . . [T]he court . . ., in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts . . . be tried separately . . . .” This section “evince[s] a legislative preference for joint trials.” (People v. Sullivan (2007) 151 Cal.App.4th 524, 557.)
Where joinder is statutorily allowed, a defendant whose motion to sever was denied “must show that a substantial danger of prejudice compelled severance. [Citation.] We ask whether the denial of severance was an abuse of discretion given the record before the trial court. [Citation.] A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process. [Citations.]” (People v. Stitely (2005) 35 Cal.4th 514, 531.) “‘Refusal 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. [Citations.]’ [Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 850.) However, these criteria are not equally significant. (Ibid.) “‘[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible . . . in separate trials on the others. If so, any inference of prejudice is dispelled.’ [Citations.]” (Ibid.) It is defendant’s burden to demonstrate prejudicearising out of joinder of offenses. (People v. Davis (1995) 10 Cal.4th 463, 508.)
Defendant does not dispute the crimes against Moreno, Osegueda, and Simon were of the same class. The murder, attempted murder, and assault were all assaultive crimes of the same class for purposes of section 954. (See, e.g., People v. Maury (2003) 30 Cal.4th 342, 395; People v. Alvarez (1996) 14 Cal.4th 155, 188.) “Because the statutory requirements for joinder were met, defendant can establish error only on a clear showing of prejudice.” (People v. Maury, supra, at p. 395.)
Defendant cannot make that showing. Not only were the assaultive crimes committed within a short period of time and in the same general geographic area (Toonerville territory and territory contested by Toonerville and another gang), but the assault weapon was found in the garage to the apartment defendant shared with his grandmother. Most significantly, defendant used the same distinctive vehicle and handgun to commit all three assaultive crimes. Also, there was evidence the same gang-related motive accounted for his presence in the shooting and assault locations. Defendant was tied to the rifle by the evidence found in connection with his arrest and the search of his residence shortly after the Moreno/Osegueda shooting. Not only was he arrested after driving out of the apartment parking lot, but he was driving the same vehicle used in the assaultive offenses and had in his possession the key to the locked garage where the rifle was stowed. The apartment search uncovered evidence of gang affiliation and tied him to the handgun used in all three assaultive crimes, and also resulted in discovery of a bullet for the assault rifle under the living room sofa. Additionally, the search of defendant’s Silverado uncovered the distinctive handgun that Simon identified as the one defendant used in connection with the assault, and which had fired the bullets during the Moreno/Osegueda shooting. Finally, the prosecution alleged and presented expert testimony that all four offenses were committed for the benefit of the Toonville gang. As the trial court correctly found, “there is certainly evidentiary overlap” as to all four counts. (See People v. Davis, supra, 10 Cal.4th at p. 508 [“[T]he close proximity in time and place of the two incidents, and the similarities between them, strongly supported joinder. On that ground alone, there was no abuse of discretion.”].)
Defendant’s basic argument is that the prosecution was allowed to join its “weak” case concerning the Moreno/Osegueda shooting with the “strong” case as to the Simon assault and the weapon possession, resulting in an unfair “spillover,” especially as to an inference of gang motive. Even assuming the evidence of gang motive was marginally stronger in the Simon incident, the countervailing factors listed above so strongly supported joinder as to negate any serious question of prejudice. Defendant’s reliance on this court’s decision in Walker v. Superior Court (1974) 37 Cal.App.3d 938 is entirely misplaced. There, the trial court had joined robbery and weapon possession offenses that occurred more than three months apart, and where there was no evidence the weapon found was the same one used in the robbery. We held that the court abused its discretion in its refusal to grant the severance motion, stating: “[W]here two dissimilar offenses occur a significant period of time apart, are connected only by an otherwise unidentified weapon, and proof of one charge involves potentially prejudicial and otherwise inadmissible evidence on the second charge, the refusal to grant a motion to sever the charges is an abuse of discretion.” (Id. at p. 943.) Here, in contrast, the evidence favored joinder on those very points. As we recognized in Walker, “joinder is generally proper where a specific weapon is common to more than one crime.” (Id. at p. 942.)
While the assault rifle was not used in the other offenses, not only was there cross-admissible evidence presented, but the case against defendant was truly overwhelming. In addition, given the jury’s rejection of the gang allegation as to that offense, there is no reason to think the jury was prejudiced by the joinder.
In sum, we find the trial court properly exercised its discretion in joining the charges, and defendant received his due process right to a fair trial. (See People v. Ochoa (2001) 26 Cal.4th 398, 425, abrogated on other grounds as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)
Sufficiency of Evidence Regarding Gang Enhancements
With regard to the gang finding under section 186.22, defendant contends there was constitutionally insufficient evidence to support the findings that (1) defendant committed the murder and attempted murder to benefit a criminal street gang, and (2) Toonville’s “primary activities” included the statutorily enumerated offenses. We disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, 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. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “The substantial evidence standard of review applies to section 186.22 gang enhancements.” (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
The gang enhancement of section 186.22, subdivision (b), required the prosecution to prove defendant committed the offenses for the benefit of a criminal street gang. Section 186.22, subdivision (f), defines a “‘criminal street gang’” for purposes of these provisions as “‘any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more of [certain enumerated criminal acts] . . ., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.’ [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323, italics omitted.) “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members . . . . [¶] Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at pp. 323-324.) Also sufficient might be expert testimony that the gang was primarily engaged in certain offenses. (Ibid.)
Initially, defendant incorrectly argues there was no evidentiary foundation for the prosecution’s gang expert’s attribution of a gang motive to the Moreno/Osegueda shooting incident. Officer Gadsby testified the shootings would have been committed to benefit Toonerville because Moreno’s residence was in territory Toonerville was attempting to wrest from the Rascals. Three Rascals were known to live nearby, and the male victims matched the “general description” of Rascals, even if they were not actually affiliated with the gang. According to the officer, who was familiar with the ongoing war between Toonerville and the Rascals, Toonerville members had taken to shooting nongang members in Rascals territory because known Rascals tended to congregate in protected locations. Such Toonerville attacks were not entirely indiscriminate. According to the expert, Toonerville members targeted Hispanic males like Moreno and Osegueda whose clothing and appearance were typical of gang members. Toonerville members believed such attacks furthered Toonerville’s goal of expanding territorial control because they intimidated both gang rivals and innocent citizens.
Contrary to defendant’s repeated assertions, such testimony was neither speculative nor conclusory. The officer testified from personal experience that Toonerville members often attacked innocent civilians in Rascals territory and gave a plausible explanation why. Further, there was solid, credible evidence that the longstanding rivalry between Toonerville and the Rascals was especially active in 2004, and that the shooting occurred in disputed territory. Moreover, the inference of gang motivation was strongly corroborated by independent evidence that defendant not only had strong Toonerville association, but in the week before the Moreno/Osegueda shooting, defendant and a comrade had engaged in the prototypical gang crime of tagging their gang name in Rascals territory. In order to prevent Simon—also an innocent civilian—from interfering and to discourage him from reporting the crime, defendant used the same distinctive handgun he used to shoot Moreno and Osegueda. Accordingly, the mere fact that no obvious gang threat was made in connection with the shooting incident did not render irrational or impossible an inference of gang motivation. In that regard, it is significant that there was no evidence of any personal relationship between defendant and the shooting victims that might support a nongang motivation for the offenses, nor was there evidence defendant and his accomplice attempted to rob the victims or burglarize Moreno’s home.
We find this evidence, viewed in the light most favorable to the prosecution, amounted to credible and solid evidence supporting the reasonable inference that defendant committed murder and attempted murder for the benefit of the Toonerville gang.
In a related challenge, defendant asserts there was insufficient evidence to support the “primary activities” element of the gang enhancement. As we explain, this argument fares no better. According to defendant, Officer Gadsby merely testified in conclusory fashion that Toonerville’s primary activities in 2004 included four general categories of crimes—assaults, robberies, narcotics sales, and unspecified misdemeanors—without offering proof that those offenses satisfied the specific criteria for “primary activities” under section 186.22. In fact, however, the expert opinion was sufficiently reliable to support the jury’s finding and defendant’s argument merely raises issues of credibility that are not cognizable on appeal. Officer Gadsby testified as to his familiarity with the Toonerville gang in 2004. At that time, the gang’s “primary activities” included “assaults against rival gang members, robberies, narcotic sales, [and a] variety of smaller misdemeanor crimes.” Such activities also included acts of vandalism or “tagging”—going into a rival’s territory and painting gang-related graffiti. The expert explained that by assaults, he meant venturing into a rival’s territory and attacking members of that gang or others who generally looked like their rivals. Such violent acts (often shootings) were intended to intimidate residents from reporting Toonerville crimes to the police. In 2004, there were “numerous” gang-related assaults between Toonerville and Rascals. As to Toonerville’s narcotics activities, the expert explained that the gang members sold illegal drugs as their “main money-making endeavor,” but it was not the only illegal activity in which the gang engaged. Also, such activity was not for personal consumption, but for the gang’s benefit. One of the reasons Tooneville had to raise money was to pay “taxes” to the Mexican Mafia prison gang. There was no evidence that the Toonerville gang engaged in legitimate activities.
Read in the light most favorable to the prosecution, there was solid and reliable evidence that in 2004 the Toonerville gang constituted a “criminal street gang” in that at least one of its “primary activities” was a statutorily enumerated crime. Specifically, there was evidence the gang consistently and repeatedly engaged in assaults with a deadly weapon, robberies, and sales of controlled substances (§ 186.22, subds. (e)(1)-(e)(2), (e)(4)) to further the gang’s criminal aims—using violence to maintain and expand control over Toonerville territory by eliminating and intimidating gang rivals and residents. On the other hand, there was no evidence that those criminal activities were merely occasional acts that happened to be committed by gang members for personal reasons. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 323; People v. Gardeley (1996) 14 Cal.4th 605, 620.)
Brandishing as a Lesser Included Offense
Defendant argues the trial court’s refusal to instruct on brandishing a weapon as a lesser included offense to the assault offense violated defendant’s state and federal constitutional rights to due process and trial by jury. The great weight of this state’s precedent holds brandishing is not a lesser included offense, but rather a lesser related offense. We follow that line of cases and hold that no such instruction was required under California law.
The defense requested the jury be instructed on brandishing a firearm as a lesser included offense to assault with a firearm. Brandishing is defined by section 417, subdivision (a)(2), which, subject to a self-defense exception, makes it a crime to draw or exhibit any firearm in the presence of any other person “in a rude, angry, or threatening manner” or to unlawfully use a firearm “in any fight or quarrel.” In contrast, section 245, subdivision (a)(2), defines the assault offense without any reference to displaying the weapon in the specific manner required by section 417. The trial court refused the request, citing People v. Steele (2000) 83 Cal.App.4th 212, 217 (Steele).
As our colleagues in Division Two of this court cogently explained: “Even though most assaults with a firearm undoubtedly include conduct fitting into the definition of brandishing, it has long been held that brandishing is a lesser related offense, rather than lesser included. [Citations.] The reason of course, is that it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, e.g., firing or pointing it from concealment, or behind the victim’s back. [Citation.]” (Steele, supra, 83 Cal.App.4th at p. 218, fn. omitted.) As our Supreme Court has made clear, trial courts are required to instruct on any lesser included offenses that are supported by the evidence. (People v. Barton (1995) 12 Cal.4th 186, 194-195.) A lesser included offense is one that must be committed in the course of committing the greater, charged offense. (People v. Birks (1998) 19 Cal.4th 108, 117 (Birks).) Trial courts, however, are not required to instruct on lesser related offenses. (Steele, supra, at p. 218.) “The determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial.” (Steele, supra, at p. 217, citing Birks, supra, at p. 117.) Here, because neither the charging document nor section 245, subdivision (a)(2), implicated or mentioned the specific conduct required for brandishing, there was no requirement for an instruction on that offense.
Defendant nevertheless argues that in People v. Wilson (1967) 66 Cal.2d 749 (Wilson), the California Supreme Court held that brandishing a firearm is a lesser included offense of assault with a firearm. We reject that argument for the same reasons adduced in Steele. Although California Supreme Court decisions are binding upon lower courts (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), the Wilson decision neither expressly stated that brandishing a firearm was a lesser included offense of assault with a firearm nor applied the Supreme Court’s mandated test for determining whether the elements of brandishing a firearm were necessarily included in a charge of assault with a firearm, or alleged in the wording of the information. (Steele, supra, 83 Cal.App.4th at pp. 217-219.) Nor is there any binding post-Wilson authority that interprets it to hold that brandishing is a lesser included offense to assault with a firearm. (See id. at pp. 219-221.)
The felony information did not refer to drawing or exhibiting the firearm in a rude, angry, or threatening manner, nor did it state that defendant used the gun during a fight or quarrel. Therefore, the trial court did not err by refusing to instruct the jury that brandishing a firearm was a lesser included offense of assault with a firearm. As defendant’s constitutional challenge was premised on the existence of such an error, it must fail.
The Batson/Wheeler Challenge
In the first of his supplemental claims, defendant contends the prosecutor violated his state and federal constitutional rights under Batson, supra, 476 U.S. 79, and Wheeler, supra, 22 Cal.3d 258, by using peremptory challenges to excuse three prospective jurors from the venire panel because they were Hispanic females. Wheeler held that a prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group membership violates a criminal defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. Batson held, among other things, that such a practice violates a defendant’s right to equal protection of the laws under the United States Constitution’s Fourteenth Amendment. Defendant argues a “comparative analysis” of the stricken panelists with the sitting jurors shows the trial court erred in denying his motion. As we explain, there was no Batson/Wheeler error.
A comparative analysis involves “side-by-side comparisons” of the stricken venire panelists of the racially suspect category with those outside that category who remained on the trial venire. (Miller-El v. Dretke (2005) 545 U.S. 231, 232 (Miller-El I).)
The record shows that voir dire began on the relevant venire on November 7, 2006, following the granting of a prior Batson/Wheeler motion and the dismissal of the first venire on November 3, 2006. The prosecutor exercised its first peremptory challenges against prospective Jurors Nos. 11, 12, and 14. Defense counsel interposed a Wheeler motion on the ground that “[o]ut of the four challenges, [the prosecutor] has excused three female Hispanics,” adding only that the basis of the motion was “systematic exclusion.” The trial court disagreed in light of the “responses from these jurors,” pointing out that prospective Juror No. 7 was married to a gang member and No. 14 had a son in prison, adding that the court believed the latter either lived or was raised in a gang area. In overruling the motion, the court also referred to unspecified, “other reasons” for making the challenged strikes. The court did not ask the prosecutor to justify the strikes, and defense counsel did not attempt to contradict the findings or elaborate the motion in any way.
Although the standard for reviewing a Batson/Wheeler motion is well established, in People v. Lenix (2008) 44 Cal.4th 602 (Lenix), our state Supreme Court recently provided direction as to the manner in which we should undertake a comparative juror analysis, such as that urged by defendant. Batson imposes a three-step inquiry: “First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional claims. [Citations.]” (Lenix, supra, at p. 612.)
“Review of a trial court’s denial of a Wheeler /Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.]” (Lenix, supra, 44 Cal.4th at p. 613.) As in this case, “‘“[w]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court’s ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.”’ [Citations.]” (People v. Hoyos (2007) 41 Cal.4th 872, 900.)
Review of the record reveals obvious, race-neutral bases for striking prospective Jurors Nos. 12, 11, 7, and 14. Prospective Juror No. 12 was female. Although she did not know any gang members, her community was surrounded by “a lot” of gang activity. The panelist voiced her predilection for direct over circumstantial evidence and stated that she would not feel comfortable reaching a murder verdict without an eyewitness. The record does not clearly disclose prospective Juror No. 11’s sex or race, but it appears he was male. Although the panelist neither knew any gang members nor lived in a gang neighborhood, he or she seemed to agree with prospective Juror No. 12 as to the relative inferiority of circumstantial evidence.
Defense counsel did not establish the panelist’s race, but we assume from her objection, she was Hispanic. As we discuss in more detail below, counsel’s questioning was wholly insufficient to permit adequate appellate review of the Batson/Wheeler issue. Among other things, the defense did not establish the racial composition of the stricken panelists or the ultimate composition of the jury. (See Lenix, supra, 44 Cal.4th at p. 610, fn. 6.)
Prospective Juror No. 7 was female. Her deceased husband had been a gang member during their marriage, and had “trouble with the law.” Her son was the victim of a drive-by shooting four years before the trial, when he was 24 years old. He had fully recovered. The panelist stated that her son had no gang affiliation; she was not sure if the shooting occurred in a gang neighborhood or if it was gang-related. Prospective Juror No. 14 was female. Her 25-year-old son was in prison for burglary. She grew up in an East Los Angeles neighborhood that was surrounded by gang members.
The trial court did not err in finding defendant failed to demonstrate a prima facie case of group bias. “‘“[T]he record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.”’ [Citations.]” (People v. Hoyos, supra, 41 Cal.4th at p. 900.) This was a trial in which gang affiliation and conduct played a key role. The gang affiliation of prospective Juror No. 7’s husband would have caused obvious concern to the prosecution, regardless of whether the panelist believed it inconsequential. (See Lenix, supra, 44 Cal.4th at p. 629 [“the prosecutor was entitled to rely on this concern [because] [g]ang affiliation was at issue in the trial”].) Additionally, the prosecution would rely heavily on circumstantial evidence to prove defendant’s responsibility for the murder and attempted murder. The likelihood that prospective Jurors Nos. 11 and 12 disfavored such evidence certainly provided a legitimate basis for exercising the peremptory strikes against them. Finally, the fact that prospective Juror No. 14 had a son in prison provided a reasonable and legitimate basis upon which the prosecutor could infer she would sympathize with the defendant.
On appeal, defendant urges us to conduct a comparative review of the voir dire responses of the stricken panelists with those of the seated jurors. The fact that defense counsel’s Batson/Wheeler motion was little more than perfunctory—and did not include any aspect of a comparative analysis—renders this task next to impossible. As our Supreme Court instructs, “evidence of comparative juror analysis must be considered . . . even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons.” (Lenix, supra, 44 Cal.4th at p. 622.) In such cases, the record will typically be lacking in important aspects: “When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers.” (Id. at p. 623.) “Defendants who wait until appeal to argue comparative juror analysis must be mindful that such evidence will be considered in view of the deference accorded the trial court's ultimate finding of no discriminatory intent. (See Hernandez v. New York [(1991)] 500 U.S. [352,] 365.) Additionally, appellate review is necessarily circumscribed. The reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment. Further, the trial court’s finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made.” (Lenix, supra, 44 Cal.4th at p. 624.)
Defendant asserts that various sitting jurors had gang associations equivalent to those of the stricken jurors. As our analysis has already shown, however, existence of gang associations was not the only legitimate basis for striking the identified prospective jurors. Moreover, prospective Juror No. 7’s situation was unique in that she had been married to a gang member. Further, there were additional characteristics in all the identified sitting jurors that would likely have cancelled out gang concerns or otherwise caused the prosecutor to consider them favorably. (See Lenix, supra, 44 Cal.4th at p. 631 [“While an advocate may be concerned about a particular answer, another answer may provide a reason to have greater confidence in the overall thinking and experience of the panelist. Advocates do not evaluate panelists based on a single answer. Likewise, reviewing courts should not do so.”].)
For instance, Juror No. 1 did not know any gang members. He was an elementary school assistant principal in a neighborhood where the school was placed on “lock-down” status because of a shooting. He also had a strong opposition to firearms. Juror No. 4 was a victim of crime with a niece who was a police officer. Although she knew a gang member in school, she had not kept in touch with that person. Juror No. 8 was a crime victim with two brothers who were police officers. His primary experience with gangs was negative—gang members committing crimes against his property. While Juror No. 9 may have lived in a gang area, he did not mention any gang associations. Accordingly, as the record makes plain, these jurors were not similarly situated to the identified panelists: None gave any reason to suspect potential gang sympathies, and most had law enforcement associations.
Nor does defendant show that any sitting juror was similarly situated to prospective Juror No. 14, whose son was currently in prison. Sitting Juror No. 11 had a brother who had been jailed for domestic violence. Sitting Juror No. 7’s brother was once jailed for shoplifting, driving under the influence, and driving without a license. She did not visit him in jail. Applying the proper level of deference, we find the comparison wholly inconclusive, as the offenses and punishments involving relatives of the sitting jurors were significantly less serious. Furthermore, because defendant failed to create a record as to the racial composition of the sitting jury, our comparative review is especially inconclusive as to potential racial bias.
In sum, our examination of the entire record discloses “no other evidence that the prosecution’s challenges were improperly based on race. There is no indication that the prosecutor or his office relied on racial factors.” (Lenix, supra, 44 Cal.4th at p. 631.)
Additional Sufficiency of Evidence Claims
Retained appellate counsel raises a welter of claims challenging the sufficiency of evidence in support of the verdicts. As we explain, none is meritorious. Indeed, all verge on the frivolous, as defendant repeatedly urges us to reweigh evidence or reassess the jury’s credibility determinations. As we have explained above, under federal due process review, we do not assess whether we believe the evidence at trial establishes guilt beyond a reasonable doubt, but rather whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (E.g., Jackson v. Virginia, supra, 443 U.S. at pp. 317-320; People v. Rodriguez, supra, 20 Cal.4th at p. 11.) It is a fundamental aspect of such review that it is the trier of fact’s exclusive province to resolve conflicts and inconsistencies in the testimony. “[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1181.)
Initially, defendant asserts there was no solid, reliable evidence to support the assault conviction because Simon’s identification of defendant was unreliable—despite the fact that Simon identified defendant’s photograph and made unambiguous in-court identifications of defendant as his assailant. Defendant does not come close to demonstrating the eyewitness testimony to be impossible or inherently unreliable. Simon testified that when he looked at defendant’s face, it was not covered and the crime scene was lighted. Additionally, there was strong corroboration from circumstantial evidence: Simon recognized defendant’s distinctive Silverado and the handgun later found in that vehicle. As defendant’s attempts to characterize Simon’s testimony as unreliable are based merely on conflicting evidence, they have no place on appeal.
Defendant also asserts the assault conviction cannot stand because there was no substantial evidence that defendant intended to inflict a battery on Simon. As defendant concedes, however, “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.” (People v. Williams (2001) 26 Cal.4th 779, 790.) It is well established that “[a]ssault with a deadly weapon can be committed by pointing a gun at another person [citation].” (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) Indeed, “it is not necessary to actually point the gun directly at the other person to commit the crime.” (Ibid.)
Further, as our Supreme Court recently made clear, “the crime of assault has always focused on the nature of the act and not on the perpetrator’s specific intent. An assault occurs whenever ‘“[t]he next movement would, at least to all appearance, complete the battery.”’ [Citation.]” (People v. Chance (2008) 44 Cal.4th 1164, ___ [81 Cal.Rptr.3d 723, 727].) An assault can be understood as “‘“an incipient or inchoate battery.”’” (Ibid.) “‘As a result, a specific intent to injure is not an element of assault because the assaultive act, by its nature, subsumes such an intent.’” (Ibid.) “Thus, it is a defendant’s action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay. . . . [A]ssault does not require a direct attempt at violence.” (Id. at p. ___ [81 Cal.Rptr.3d at p. 728].) Nineteenth Century precedent, endorsed by the Chance court, established: “‘There need not be even a direct attempt at violence; but any indirect preparation towards it, under the circumstances mentioned, such as drawing a sword or bayonet, or even laying one’s hand upon his sword, would be sufficient.’” (Ibid.) “Subsequent California cases establish that when a defendant equips and positions himself to carry out a battery, he has the ‘present ability’ required by [Penal Code] section 240 if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury.” (Ibid.)
Here, Simon testified that defendant exited the Silverado and pointed a handgun at Simon to prevent the witness from interfering with his comrade’s graffiti painting. Defendant threatened Simon, telling him to mind his own business because “this was their hood.” Next, defendant used the handgun to render Simon immobile, so defendant’s accomplice could kick Simon. Defendant adduces no authority for the incredible assertion that no reasonable juror could find defendant equipped and positioned himself to effect a battery and that his conduct betrayed a serious threat of violence.
Next, defendant argues the murder and attempted murder convictions cannot stand because there was no reliable percipient witness testimony identifying him as the shooter and because there was no substantial evidence of premeditation. Neither assertion withstands scrutiny. In light of the very strong circumstantial evidence that defendant was the shooter, the fact that no eyewitness placed him at the shooting scene was hardly determinative. Among other things, the shooter and his accomplice drove defendant’s distinctive Silverado to and from the shooting; the bullets were fired from the distinctive weapon found in hidden in that vehicle. Defendant had a gang-related motive for committing the crime. Defendant’s assertion that his alibi was “strong” is beside the point. The question of whether defendant’s alibi witnesses were comparably more believable, is not cognizable on appeal. Moreover, defendant’s alibi was dubious. Not only did it depend on the strained testimony of biased witnesses, but the prosecution’s rebuttal case undercut it in key aspects.
In a related argument, defendant asserts there no showing of premeditation because the evidence merely showed that defendant fired his handgun “in a random manner.” There are three common categories of evidence bearing on the existence of the premeditation and deliberation element of first degree murder—planning activity, motive, and the manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Anderson (1968) 70 Cal.2d 15, 25-27.) These “factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.” (People v. Perez, supra, at p. 1125.) While our review of the record discloses little if any evidence of randomness, there was reasonable, solid, and reliable evidence of all three premeditation considerations: From the testimony of the gang expert along with that of Osegueda and Takamatsu, one could infer defendant and his accomplice were waiting for victims who matched the general description of gang rivals. Takamatsu heard the assailants make a verbal threat to the victims just before the shooting began. Osegueda saw the shooter aim at him before the bullet struck his foot; Moreno was killed by a bullet to the face as he stood in the doorway; and when the shooting stopped, the assailants approached the victims and kicked the prostrate Osegueda in the head.
Defendant’s closely related claim that there was no substantial evidence of a specific intent to kill fails for the same reason. It too is premised on the mistaken assertion that the evidence only supported an inference that the shooting was random. His reliance on People v. Ratliff (1986) 41 Cal.3d 675 is misplaced. That decision concerned a trial in which “the jury was never instructed that a specific intent to kill was required, or that the implied malice instructions were inapplicable to the attempted murder charge.” (Id. at p. 695.) No similar instructional error occurred at defendant’s trial.
In his final sufficiency of evidence claim, defendant attacks his conviction for possessing an assault weapon, contending there was no substantial evidence of the knowledge element of a section 12280, subdivision (b) offense—that defendant knew the weapon he possessed had the characteristics of an assault weapon. It was the prosecution’s burden to prove that defendant “knew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements of the [Assault Weapons Control Act (§§ 12275-12290) (AWCA)].” (In re Jorge M. (2000) 23 Cal.4th 866, 869-870.)
Defendant was charged with violating section 12280, subdivision (b) by possessing a .30 caliber Carbine. Police recovered a .30 caliber Carbine rifle from the apartment’s locked garage. The drawer in his bedroom contained ammunition for a .30 caliber semiautomatic rifle. A .30 caliber bullet was found under the living room sofa. Criminalist Vanessa Gould opined that the carbine rifle was an assault weapon as defined by California law because it had a pistol grip, a folding stock, and was a semiautomatic, centerfire rifle with the capacity to accept a detachable magazine. The jury was instructed that an “assault weapon includes a semiautomatic centerfire rifle which has at least one of the following characteristics: [¶] (a) a pistol grip that protrudes conspicuously beneath the action of the weapon; or [¶] (b) a folding stock.” Defendant does not contest that the Carbine qualified as an assault rifle under California law for the reasons given by the prosecution expert. Rather, he asserts the prosecution failed to present any substantial evidence that defendant knew (or should have known) the Carbine he possessed had either a conspicuously protruding pistol grip or a folding stock.
See section 12276.1, subdivisions (a)(1)(A) & (C).
As our Supreme Court instructs: “The question of the defendant’s knowledge or negligence is, of course, for the trier of fact to determine, and depends heavily on the individual facts establishing possession in each case. Nevertheless, we may say that in this context the Legislature presumably did not intend the possessor of an assault weapon to be exempt from the AWCA’s strictures merely because the possessor did not trouble to acquaint himself or herself with the gun’s salient characteristics. Generally speaking, a person who has had substantial and unhindered possession of a semiautomatic firearm reasonably would be expected to know whether or not it is of a make or model listed in section 12276 or has the clearly discernable features described in section 12276.1.” (In re Jorge M., supra, 23 Cal.4th at pp. 887-888.) Here, there was evidence that defendant stored the assault weapon in a locked garage for which he kept the key on his person, and that ammunition was found in his bedroom and living room. Moreover, nothing about the qualifying characteristics appears to have been hidden or otherwise difficult to recognize. The evidence of defendant’s culpable knowledge was reasonable, solid, and credible. (See id. at p. 888.)
Admission of Hearsay Statements by Prosecution Gang Expert
Defendant also contends the admission of hearsay statements by the prosecution’s gang expert—that the persons in a photograph found in defendant’s Silverado had admitted to Officer Gadsby they were Toonerville members—violated his federal constitutional rights to due process, a fair trial, and to confront adverse witnesses under Crawford v. Washington (2004) 541 U.S. 36. We need not decide, however, if there was a Confrontation Clause or related constitutional violation, because any error was harmless beyond a reasonable doubt. The challenged testimony was admitted to prove defendant’s membership in and close association with the Toonerville gang. However, those factors were established beyond serious doubt by evidence independent of Officer Gadsby’s hearsay testimony.
The United States Supreme Court has held that violations of the Sixth Amendment are subject to the California v. Chapman (1967) 386 U.S. 18, 24 (Chapman) harmless error test. “In Chapman, this Court rejected the argument that all federal constitutional errors, regardless of their nature or the circumstances of the case, require reversal of a judgment of conviction. The Court reasoned that in the context of a particular case, certain constitutional errors, no less than other errors, may have been ‘harmless’ in terms of their effect on the factfinding process at trial. Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) “Accordingly, we hold that the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis.” (Delaware v. Van Arsdall, supra, at p. 684.) Thus, “if the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.” (People v. Anderson (1987) 43 Cal.3d 1104, 1129; People v. Schmaus (2003) 109 Cal.App.4th 846, 860.)
Such was the case here. In addition to the photograph that occasioned the challenged hearsay testimony, another one was found in defendant’s glove compartment that depicted persons posed in front of a “Toonerville” mural, taken in territory contested by Toonerville and its rivals, the Rascals gang. A drawing with the word, “Toonerville,” was found in the entertainment center of defendant’s apartment, which was located in Toonerville territory. Another drawing found in defendant’s apartment contained symbols typical of Toonerville membership and affiliation with the Mexican Mafia. In 2003, Officer Loza observed defendant standing next to his Silverado, which was parked by Chevy Chase Park in Toonerville gang territory. Moreover, defendant was a self-admitted member of Toonerville, whose moniker was “Lalo” or “Lazy.” Officer Gadsby knew him to “hang[] out” in Toonerville gang locations with Toonerville members, and to dress in a manner consistent with such membership. And most significantly, in committing the assault of Simon, defendant trained the handgun on the victim to permit his comrade to finish painting Toonerville graffiti.
Prosecutorial Misconduct Claim
Finally, defendant points to five instances during rebuttal argument in which he contends the prosecutor improperly vouched for the credibility of prosecution witnesses by negatively commenting on the credibility of defense alibi testimony. Defendant contends those arguments amounted to prosecutorial misconduct in violation of his federal constitutional rights to due process and a fair trial. Initially, we note that trial counsel interposed timely and specific objections in only two of those instances. Defendant’s “failure to raise a vouching objection at trial forfeits the claim on appeal.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1166 (Zambrano).)
In any event, defendant’s claim fails on the merits as to all challenged instances of vouching. “Impermissible vouching occurs ‘where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.’ [Citation.] But ‘so long as a prosecutor’s assurances . . . are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [his] comments cannot be characterized as improper vouching.’ [Citations.]” (Zambrano, supra, 41 Cal.4th at p. 1167.) In every instance defendant identifies, the prosecutor’s credibility arguments “are amply supported either directly, or by reasonable inference, from the trial evidence.” (Ibid.; cf., United States v. Molina (9th Cir. 1991) 934 F.2d 1440, 1445 [“In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.”]) Defendant presents no argument to the contrary. Read in context, there was no statement or implication by the prosecutor that she was invoking the prestige of her office or that her inferences were based on extra-record information.
Court Security Fees
At sentencing, the trial court imposed a single $20 court security fee under section 1465.8, subdivision (a)(1), apparently for the weapon possession conviction. The Attorney General contends that the plain terms of that statute mandate imposition of such fees for each of defendant’s four convictions. The Attorney General did not forfeit this issue by the prosecutor’s failure to object in the trial court. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) Defendant did not address this issue in his reply brief, effectively conceding the issue. “[S]ection 1465.8 unambiguously requires a fee to be imposed for each of defendant’s convictions. Under this statute, a court security fee attaches to ‘every conviction for a criminal offense.’” (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.)
DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered modified to include three additional $20 court security fees under section 1465.8, subdivision (a)(1). The clerk of the superior court is directed to amend the abstract of judgment to reflect this modification and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: TURNER, P. J., MOSK, J.