Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA074577, Arthur H. Jean, Jr., Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
A jury convicted defendant Isaiah Cortez Posey of three counts of attempted willful, deliberate and premeditated murder (§§ 664/187, subd. (a)) with the findings that the crimes had been committed for the benefit of a street gang (§ 186.22, subd. (b)(1)(C)) and that during commission of the offenses, a principal had personally and intentionally discharged a firearm, causing great bodily injury to each victim (§ 12022.53, subd. (d)).
All undesignated statutory references are to the Penal Code.
This appeal primarily contends that the enhancement findings must be reversed. Defendant advances several arguments why the jury’s findings on the firearm enhancement were improper. He also claims that the evidence is insufficient to support the findings that the crimes were committed for the benefit of a street gang. We are not persuaded by any of defendant’s arguments. Secondarily, each party raises minor claims of sentencing error, all of which have merit. In that regard, we will direct preparation of an amended abstract of judgment but otherwise will affirm the judgment.
STATEMENT OF FACTS
As mandated by the traditional rule of appellate review, we view the evidence in the light most favorable to the judgment. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 370.)
The crimes are gang related. Defendant is a member of the predominantly African-American East Side Pain gang (ESP gang). The East Side Wilmas, a Hispanic gang, is the primary rival of the ESP gang. The crimes occurred at a party attended by Hispanics in a residence located in the ESP gang’s territory. Defendant and an unidentified man (both Black) went to the party, believing that members of the rival East Side Wilmas gang were present. When refused entry to the party, defendant shot three individuals. The particulars are the following.
During the evening of January 13, 2007, Angela Orozco (Orozco) was attending a family party in a portion of Wilmington which is in ESP gang territory. At one point, she was in the front yard of the residence with Salvador Alvarez (Salvador) and Luis Cervantes (Cervantes). Defendant and an unidentified Black man stood across the street looking in the direction of the home. A gray Pontiac Grand Am pulled up next to the two men. The car’s occupants spoke with defendant and then drove off. Defendant and his companion walked toward the front yard of the residence and confronted Orozco, Salvador and Cervantes. Defendant asked them “where [they] were from,” a question that they understood to be an inquiry about (potential) gang affiliation. Orozco told defendant they were not associated with any gang. Defendant demanded permission to enter the house, stating he had seen an “East Side” gang member go inside. Orozco refused entry, stating it was a family party. Defendant insisted that he be let in.
Because three of the witnesses share the surname “Alvarez,” we shall refer to them by their first names for purposes of clarity.
During this confrontation, two of Orozco’s cousins, Alejandro Alvarez (Alejandro) and Ramiro Alvarez (Ramiro) came to the front of the house. Defendant aggressively asked them “where are you from.” Ramiro relied that “they weren’t from nowhere and just to leave them alone and leave.” Defendant asked they if they were “from the Bloods.” Ramiro became upset, believing defendant was trying to provoke a confrontation. Alejandro and Salvador started to take Ramiro toward the back of the house because he was becoming angry. As the three left, defendant pulled a gun out from underneath his sweater and fired it several times. The bullets hit Ramiro in the back, Alejandro in the right leg, and Orozco (who was now running away) in the back. Defendant yelled “East Side Pain” before fleeing the scene. The grey Pontiac Grand Am that Orozco (and others) had seen earlier drove away.
Later that evening, the police found the grey Pontiac Grand Am parked two blocks from the crime scene. The police recovered ESP gang paraphernalia (e.g., clothes and writings) from the car.
Within days of the shootings, the police presented several photo lineups to the witnesses. Three of them selected defendant. Salvador identified defendant as the shooter. Ramiro and Cervantes identified defendant as being one of the two men who had confronted them in the front yard.
At trial, Salvador again identified defendant as the shooter. Ramiro testified that defendant was the “one . . . that did all of the talking” and then “lift[ed] up his sweater and reveal[ed] the gun.” Orozco, Cervantes and Alejandro did not identify defendant at trial.
Orozco was asked: “Do you see anyone in court today that you recognize as . . . one of the two Black males you saw on the night of January 13, 2007?” She replied: “I don’t remember his face.”
Officer Mark Maldonado, a qualified gang expert, testified that defendant had admitted his membership in the ESP gang to him and to another officer. In addition to testifying to the facts about the gang set forth at the beginning of our factual summary, the officer explained that the ESP gang is a street gang within the meaning of the statutory law whose members have committed the requisite predicate offenses. (More specifics of the officer’s testimony will be set forth below when we discuss defendant’s contention of insufficient evidence to support the finding that the ESP gang is a criminal street gang.)
Pursuant to the prosecutor’s request, defendant displayed his gang tattoo to the jury.
In Officer Maldonado’s opinion, the January 13, 2007 crimes were committed to benefit the ESP gang. He explained: “[I]n a gang world respect is everything. They [defendant and his companion] actually believe that an East Side Wilmas gang member, a rival gang member had gone to a party in their own neighborhood. . . . And they can’t tolerate it. Because they let that slide, that just shows weakness amongst themselves. And other gangs see that and they will take over. [¶] . . . When they are denied entry [to the party], again, to them, they are getting disrespect. . . . [S]ince they believe that [an] East Sider is already in the party, anybody who is helping . . . that East Sider out, must be in association with them and not with the East Side Pain Gang. [¶] . . . To them [defendant and his companion] everybody in there [the party] was either an East Side member or an East Side associate. So they had to make a statement. They had to do something to make a statement, to show other gangs that you don’t come into our neighborhood and have a party in our neighborhood.”
The defense presented no evidence.
DISCUSSION
A. Section 12022.53, subdivision (d) Enhancement
Defendant first contends that his right to due process was violated because the trial court sentenced him “pursuant to an enhancing allegation that was not proved at trial and . . . not pleaded in the information.” (Capitalization omitted.) We are not persuaded.
1. Factual Background
a. The Information
The information charged defendant with three counts of attempted willful, deliberate and premeditated murder. The information alleged that during commission of the crimes, defendant “personally and intentionally discharged a firearm, a handgun” causing great bodily injury (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally used a firearm (§ 12022.53, subd. (b).) In addition, the information alleged that all crimes were committed to benefit a criminal street gang. (§ 186.22, subd. (b)(1)(C).)
b. The Jury Instructions and the Verdict Forms
The pattern jury instruction explaining section 12022.53, subdivision (d) is CALCRIM No. 3149. However, for reasons not explained in the record, the trial court did not use that instruction, but, instead, and without any objection from defense counsel, submitted a modified version of CALCRIM No. 1402 “Gang-Related Firearm Enhancement,” an instruction to be used when a defendant is charged with an enhancement under subdivision (e) of section 12022.53. As set forth below in toto in footnote five, the instruction properly defined the elements of a subdivision (d) enhancement except that instead of referring to the defendant’s personal and intentional discharge of the firearm, it referred to a principal’s personal and intentional discharge of the firearm. The trial court also submitted two pattern instructions about aiding and abetting, CALCRIM Nos. 400 (“Aiding and Abetting: General Principles”) and 401 (“Aiding and Abetting: Intended Crimes”) but did not submit an instruction defining “principal.” However, as will be explained below, the prosecutor never relied upon a theory of vicarious liability to establish defendant’s guilt.
It read:
Defendant opines that the trial court submitted the aiding and abetting instructions “because of the ambiguity of the identifications.” As will be explained later, the evidence placing defendant at the scene and identifying him as the shooter was not ambiguous. Regardless, given that the record contains no reported discussion of jury instructions and the prosecutor never relied upon an aiding and abetting theory in closing argument, defendant’s claim is unsupported (and irrelevant) speculation.
c. Closing Arguments
In the opening portion of her closing argument, the prosecutor relied upon the witnesses’ in-court and photographic identifications of defendant to urge that defendant had fired the gun which struck the three victims.
Defense counsel’s closing argument attacked, in the most general way, the sufficiency of the identification evidence. To an extent, he suggested that the police (and possibly the victims) had improperly conflated the issue of identification to one of race: Hispanics attacked by Black gang members.
The prosecutor’s rebuttal argument focused on the strength of the pretrial photographic identifications in which the three witnesses, independent of each other, selected defendant’s photo out of six photos and the unequivocal in-court identifications by Salvador and Ramiro of defendant as, respectively, the shooter or the man with the gun.
d. The Jury’s Question About the Verdict Form
The verdict form stated that the section 12022.53, subdivision (d) allegation required a jury finding “that a principal, personally and intentionally discharged a firearm during the commission of this offense and in doing so inflicted great bodily injury.” (Italics added.)
During deliberations, the jury asked the court to clarify the term “a principal” as used in the verdict form. Without any objection from defense counsel, the court responded with a modified version of CALJIC No. 3.00 (“Principals-Defined”). It read:
The court explained: “It never fails to astound me as to how careful and thoughtful jurors are. I neglected to define that term for you. And it is my fault. And I apologize. [¶] As you can see from the jury instructions they appear to be pattern jury instructions. And they are. This isn’t the first time we have seen charges like this. And so we mix and match and ta[i]lor pre thought out jury instructions for you. And we are switching from one set of jury instructions to another in an attempt to be more user friendly. I didn’t work the new jury instructions very well, and I forgot to define ‘principal’ for you. My fault.”
“Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include:
“1. Those who directly and actively commit the act constituting the crime, or
“2. Those who aid and abet the commission of the crime.”
e. Sentencing
The jury convicted defendant of three counts of attempted premeditated murder and found all enhancements to be true.
Immediately before sentencing defendant, the trial court stated: “Not only did [defendant] shoot these people down, he shot them in their backs while they were running away.” (Italics added.) In imposing its sentence, the court stated that it was imposing the consecutive term of 25 years to life for each section 12022.53, subdivision (d) enhancement. The abstract of judgment likewise refers to subdivision (d) of section 12022.53.
2. Analysis
Defendant’s claim that he “was sentenced under an enhancement that was not alleged in the information” is refuted by the record. The information alleged enhancements pursuant to subdivision (d). The verdict forms referred to a subdivision (d) enhancement. The trial court explicitly referred to subdivision (d) in imposing sentence. The abstract of judgment recites sentences imposed based upon a subdivision (d) finding. And the trial court’s statement at the sentencing hearing clearly indicates that the sentences for the enhancement findings were imposed because defendant (not an accomplice) had shot the victims in the back while they were running away.
Nonetheless, defendant claims that because the jury instruction and the verdict form referred to a principal instead of defendant, “the jury’s verdict forms are equally susceptible of proof [that] the jury found either [defendant] or the other person—both of whom were considered principals—personally discharged the firearm. Thus, the record lacks sufficient proof that the prosecutor proved beyond a reasonable doubt that [he] personally discharged the gun, as alleged in the information,” thereby rendering the sentence enhancement constitutionally improper. We disagree.
To the extent that the instruction and verdict form were ambiguous because they would have permitted a true finding based on a theory of vicarious liability—a theory not charged in the information—we conclude that there is no reasonable likelihood that the jury made that finding. (See People v. Palmer (2005) 133 Cal.App.4th 1141, 1156-1158, and cases discussed therein.) The People’s theory, as set forth in closing argument, was that defendant was the shooter. Although aiding and abetting instructions were submitted, the prosecutor never referred to them. In particular, she never suggested that the accomplice had fired the gun and that defendant was vicariously liable for that action. The defense theory, as explained in closing argument, was that there was a reasonable doubt that defendant had even been properly identified as being at the scene of the crime. At no point did the defense suggest that the shooter was the unidentified accomplice and that defendant was present but not responsible for the shooter’s actions. When the jury asked for clarification of the word “principal,” the trial court properly defined it to include an individual “who directly and actively commit[s] the act,” a definition which embraces a finding that defendant was the actual shooter. Consequently, the only reasonable interpretation of the jury’s finding that a principal personally and intentionally shot the gun is that the jury found that defendant (not his unidentified companion) was the actual shooter, a finding amply supported by the evidence in the form of the witnesses’ pretrial photographic and in-court identifications of defendant.
Defendant’s argument that the reference to a “principal” in the jury instruction and verdict forms denied him the right to present a defense is not persuasive. He argues: “[B]ecause of the ambiguous and contradictory state of the evidence with respect to which suspect fired the weapon, [he] did not have to present any evidence to refute the allegation that he personally discharged the weapon, and instead relied on the state of the prosecution’s evidence. [¶] However, had [he] been notified [that] he vicariously could be held liable and subjected to 25 years to life in prison irrespective of whether or not he personally discharged the weapon, he could have testified and/or presented alibi or other relevant evidence in an effort to raise a reasonable doubt as to any vicarious responsibility he might have shared. But because the information did not contain a section 12022.53, subdivision (e) allegation, [he] was not notified he would need to defend against a theory of vicarious liability.” (Italics in original, fns. omitted.)
Defendant’s argument proceeds upon incorrect premises. The evidence was not ambiguous or contrary as to who fired the gun. Salvador identified defendant as the shooter twice (in a photo lineup and at trial) and Ramiro identified defendant at trial as the man with the gun. Although some of the witnesses did not identify defendant as being present during the crimes, no one, either before or during trial, ever stated that the other man was the shooter. Defendant’s second premise—that he was not informed that he needed to defend against a theory of vicarious liability—fails because the prosecutor never urged that theory. Hence, there was nothing to defend against. Further, the evidentiary record does not support defendant’s claim that the jury could have found that his unidentified accomplice discharged the gun. As explained above, in light of the evidence and the prosecutor’s arguments, the use of the word “principal” in the jury instruction and verdict forms simply does not have the significance defendant imports to it. The fact that the jury asked for a definition of “principal” does not change this conclusion. Given that “principal” is a legal word of art which had not been defined by the instructions, the jury (as noted by the trial court) understandably sought elucidation. (See fn. 7, ante.) Nothing more can be reasonably inferred from that request.
Defendant’s reliance upon People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) to support a contrary conclusion is misplaced. “In People v. Mancebo the court held an enhancement had to be stricken because it was never pled, even though the elements necessary to establish it were implicit in the information and found by the jury.” (People v. Riva (2003) 112 Cal.App.4th 981, 1002 (Riva).) “The problem in Mancebo, the court explained, was not in the lack of proof but in the lack of notice. The trial court could not wait until the time of sentencing to decide what enhancements were necessarily established by the jury’s verdicts. ‘[A] defendant has a cognizable due process right to fair notice of the specific enhancement allegations that will be invoked to increase punishment for his crimes.’ Fair notice, the [Mancebo] court explained may be critical to the defendant’s ability to contest the factual bases for the enhancement.” (Riva, supra, 112 Cal.App.4th at p. 1002, fn. omitted.)
Mancebo is distinguishable from this case because there the enhancement the trial court imposed was never pled by name, number or description. Here, on the other hand, the subdivision (d) enhancement was pled in the information, identified in the verdict form, and explicitly relied upon by the trial court in sentencing defendant. In addition, the People’s theory of the case—from opening statement through closing argument—was that defendant was the shooter. In sum, use of the word “principal” in the jury instruction and verdict form did not, as defendant now claims, lead to jury findings on enhancement allegations that he did not have notice of and opportunity to defend against.
In opening statement, the prosecutor informed the jury about the pretrial identifications made by three witnesses.
B. Section 186.22 Enhancement
Defendant next contends that the jury’s findings that the crimes were committed to benefit a street gang must fail because there is insufficient evidence to prove that the ESP gang’s “primary activities qualified it as a criminal street gang.” (Boldface omitted.) In particular, he urges that Officer Maldonado’s testimony “was nothing more than ‘conclusional.’” We disagree.
A modified version of the pattern instruction, CALCRIM No. 1401 “(Felony Committed for Benefit of Criminal Street Gang”) was submitted. Defendant raises no complaint about the wording of the instruction.
A criminal street gang is an “ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), 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.” (§ 186.22, subd. (f).) The enumerated crimes include homicide, attempted homicide, robbery, assault with a deadly weapon, and narcotics sales. “Primary activity” means that it is one of the gang’s “chief” or “principal” occupations. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Proof of a gang’s primary activities can be established through expert testimony. (Id. at p. 324; People v. Gardeley (1996) 14 Cal.4th 605, 620.)
In this case, Officer Maldonado has been a police officer 12 years and has spent 7 years in gang enforcement. He has testified as a gang expert in approximately 100 cases. He has specialized knowledge of ten gangs, including the ESP gang. The ESP gang has been one of his primary responsibilities for the last five years. He has had over 100 contacts with ESP gang members, including defendant. He and other officers assigned to the gang unit review and maintain files on the ESP gang. According to the officer, the ESP gang has 60 to 80 members. He gave examples of their symbols, tattoos and clothes. He explained that the primary activities of the ESP gang include homicide, attempted homicide, assault with a deadly weapon, robbery, and narcotics sales.
Officer Maldonado’s detailed expert testimony was more than adequate to support the jury’s findings that the ESP gang was a criminal street gang. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [the officer’s “eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony” that the King Kobras is a criminal street gang]; compare In re Alexander L. (2007) 149 Cal.App.4th 605, 611-614 [the officer’s testimony about a gang’s primary activities was insufficient evidence to sustain the jury’s finding because the testimony lacked an adequate foundation and hence was conclusory].)
Contrary to what defendant claims, there is no requirement that the prosecution also show that the ESP gang committed the crimes “consistently and repeatedly” to qualify as a criminal street gang. The officer’s expert testimony was sufficient to establish that the ESP gang met the statutory definition of a criminal street gang. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)
C. Sentencing Issues re Enhancements
As noted, the jury convicted defendant of three counts of attempted willful, deliberate and premeditated murder and found that each crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C).) In addition, the jury found that “a principal, personally and intentionally discharged a firearm during the commission of [each] offense and in so doing inflicted great bodily injury or death on a person within the meaning of Penal Code Section 12022.53(d).”
For each count, the trial court orally imposed a consecutive life term, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. In addition, the court imposed a consecutive 10-year term for the benefit of a street gang enhancement. The 10-year term is included in the court’s minutes but is omitted from the abstract of judgment.
Defendant contends that the 10-year enhancement cannot be imposed because he received life sentences for gang-related felonies. He is correct. (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1006-1007; People v. Flores (2005) 129 Cal.App.4th 174, 187; People v. Harper (2003) 109 Cal.App.4th 520, 526-527.) Attempted premeditated murder is a felony punishable by life in prison (§ 664, subd. (a)). Consequently, subdivision (b)(5), not subdivision (b)(1)(C), of section 186.22 applies. Thus, a minimum parole eligibility period of 15 years must be imposed, not an additional prison term of 10 years. (People v. Johnson (2003) 109 Cal.App.4th 1230, 1239; People v. Villegas (2001) 92 Cal.App.4th 1217, 1228-1229.)
The Attorney General concedes error but for the wrong reason. He assumes incorrectly that the enhancement was imposed for subdivision (e) instead of subdivision (d) of section 12022.53.
The Attorney General correctly notes that the firearm enhancement is omitted from the abstract of judgment in regard to count 3 and asks us to amend the abstract to include it. We shall.
D. Sentencing Issues re Fines and Fees
Both defendant and the Attorney General raise claims of sentencing error in regard to the fines and fees imposed.
1. Factual Background
At sentencing, the trial court stated: “He [defendant] is to pay a $20,000 restitution fine, a $20,000 penal fine, a $20 security fee, a $200 parole revocation fee.”
The trial court’s minute order recites the imposition of: (1) $20,000 restitution fine (§ 1202.4, subd. (b)); (2) a $20,000 parole restitution fine, stayed pending successful completion of parole (§ 1202.45); and (3) a $20 court security assessment (§ 1465.8, subd. (a)(1)). In addition, the minute order includes a $20,000 penal fine with a $42,000 penalty assessment on that fine and a $4,000 state charge pursuant to section 1465.7.
The abstract of judgment includes a $20,000 restitution fine (§ 1202.4, subd. (b)); a $20,000 parole revocation (restitution) fine (§ 1202.45); and a $20 court security fee (§ 1465.8).
2. The Restitution Fines
Defendant contends, and the Attorney General concedes, that the trial court imposed excessive restitution fines. The statutory maximum for a restitution fine following conviction of a felony is $10,000. (§ 1202.4, subd. (b)(1).) Even if there is more than one victim, the maximum restitution fine remains at $10,000. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) The parole revocation fine is to be imposed “in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45.) The accepted practice is for a reviewing court to simply modify the judgment to reduce both fines. (People v. Blackburn, supra, 72 Cal.App.4th at p. 1534.) Defendant concedes that authority but claims that in this case a remand is necessary because the trial court’s intent is unclear. We disagree. The trial court imposed the $20,000 restitution fine after stating “[t]his crime is as vicious as they come.” From this, we infer an intent to impose the maximum possible restitution fine. No remand is necessary.
3. The Attorney General’s Requests
The Attorney General asks us to modify the judgment in several respects. Defendant’s reply brief raises no objection to any of these requests.
The Attorney General begins with the penal fine. The trial court’s oral pronouncement of sentence included a $20,000 penal fine but the abstract of judgment omits that fine. Section 672 permits imposition of up to a $10,000 fine when the charging statute prescribes no fine. On that basis, the Attorney General seeks modification of the judgment to reflect imposition of a $10,000 section 672 fine.
Building upon the $10,000 penal fine, the Attorney also requests that we modify the penalty assessment (§ 1464) and state surcharge (§ 1465.7, subd. (a)) attached to the fine to $10,000 and $2,000 respectively. In addition, the Attorney General seeks imposition of a $5,000 state construction penalty (Gov. Code, § 70372; People v. McCoy (2007) 156 Cal.App.4th 1246, 1256) and a $5,000 additional penalty assessment provided by Government Code section 76000, subdivisions (a)(1) and (e).
Lastly, the Attorney General correctly notes that pursuant to section 1465.8, subdivision (a)(1), the trial court is required to impose a $20 court security fee for each conviction in a case. Here, the court only imposed one such fee. Because defendant was convicted in three separate counts, two more $20 fees should be imposed.
All of the Attorney General’s requests are well-taken. We therefore shall direct modification of the judgment to incorporate them.
DISPOSITION
The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting: (1) an imposition of a 15-year minimum parole eligibility period for each attempted murder count (§ 186.22, subd. (b)(5)); (2) the imposition of a section 12022.53, subdivision (d) enhancement with a term of 25 years to life on count 3; (3) reduction of the section 1202.4, subdivision (b) fine to $10,000; (4) reduction of the section 1202.45 fine to $10,000; (5) imposition of a $10,000 section 672 fine; (6) imposition of a $10,000 section 1464 penalty assessment; (7) imposition of a $2,000 section 1465.7 surcharge; (8) imposition of a $5,000 state construction penalty pursuant to Government Code section 70372; (9) imposition of a $5,000 penalty assessment pursuant to Government Code section 76000, subdivisions (a) and (e); and (10) imposition of three $20 court security fees (§ 1465.8, subd. (a)(1)). In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.
Alejandro was asked: “[D]o you see anyone in court today that you recognize as either one of those suspects you saw standing on the sidewalk that night at your grandmother’s house?” He replied: “I couldn’t recognize no one.”
Cervantes was asked: “[A]t this point in time do you see anyone in court today that you recognize as either one of the Black males you saw standing on the sidewalk that night of the incident?” He replied: “No.”
“If you find the defendant guilty of the crimes charged in Counts 1, 2 & 3, and you find that the defendant committed those crimes for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in any criminal conduct by gang members, you must then decide whether, for each crime, the People have proved the additional allegation that one of the principals (personally used/personally and intentionally discharged) a firearm during that crime and caused (great bodily injury/or death). You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
“To prove this allegation, the People must prove that:
“1. Someone who was a principal in the crime personally (used/discharged) a firearm during the commission or attempted commission of the crime (./;) AND
“2. That person intended to discharge the firearm (./;) AND
“3. That person’s act caused great bodily injury to another person.
“A principal personally uses a firearm if he or she intentionally does any of the following:
“1. Displays the firearm in a menacing manner.
“2. Hits someone with the firearm, OR
“3. Fires the firearm.
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
“The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”
After the court read CALJIC No. 3.00 to the jury, it stated: “So a principal is either the actor or the aider and abett[o]r. And they are each principals in a crime.”