Opinion
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. No. 199275.
Lambden, J.
A jury convicted defendant Marcos Vinicious Reis-Campos (Campos) of the second degree murder of Luis Guillermo Fuentes (Fuentes), rejecting his claim that he shot Fuentes in self-defense and finding true an enhancement allegation that he acted “for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in... criminal conduct by gang members...” (Pen. Code, § 186.22, subd. (b)(1)). In addition, the jury found true firearm enhancement allegations (§§ 12022.53, subd. (d), 12022.5, subd. (a)) and convicted Campos of active participation in a criminal street gang (§ 186.22, subd. (a)) (count II). On appeal from these convictions, Campos contends the trial court erred in: (1) denying his request for an evidentiary hearing to explore the possibility that the prosecution failed to disclose favorable, material evidence (Brady v. Maryland (1963) 373 U.S. 83 (Brady)); (2) precluding him from cross-examining the People’s gang expert regarding the victim’s reputation for violence; (3) admitting evidence of his participation and status in the gang after the shooting; and (4) failing to instruct the jury on an element of count II. We find no prejudicial error and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
factual and procedural background
On June 30, 2004, the People filed a felony complaint against Campos alleging that he had murdered Fuentes (§ 187) (count I), and had done so for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). The complaint included a special allegation that Campos had personally and intentionally discharged a firearm in the commission of the murder (§ 12022.53, subds. (a)(1), (d)) and a second felony count of active participation in a criminal street gang (§ 186.22, subd. (a)) (count II). After a July 2006 preliminary hearing, Campos was held to answer on both counts. Shortly thereafter, he was charged by information in accordance with the complaint. The information added a firearm enhancement allegation under section 12022.5, subdivision (a), and asserted that Campos committed the murder willfully, deliberately, and with premeditation (§ 664, subd. (a)). Campos entered a plea of not guilty to both counts and denied the special allegations.
The matter proceeded to a jury trial in May 2007. The People argued that Campos was a member of a violent street gang and had killed Fuentes, a rival gang member, in defending gang territory and seeking status in the gang. The defense contended Campos killed Fuentes in self-defense, maintaining Fuentes was the leader of a rival gang who had threatened him and orchestrated two attempts on his life in the months before the shooting. On July 2, 2007, the jury convicted Campos of second degree murder (§ 187) and active participation in a criminal street gang (§ 186.22, subd. (a)), and found all the special allegations true.
Campos filed a motion for a new trial. Before filing an opposition, the prosecutor sent defense counsel a letter indicating she had learned Fuentes was a suspect in a vehicle shooting in Daly City. Concurrently with his reply in support of the motion, Campos filed a request for an evidentiary hearing “in connection with pending motion for a new trial, ” “to determine whether the prosecution has complied with its constitutional obligation to provide the defense with material exculpatory evidence in the possession of law enforcement.” The trial court denied the motion for a new trial and the request for an evidentiary hearing.
The trial court sentenced Campos to 15 years to life on count I and imposed consecutive terms of 10 years to life for the gang enhancement (§ 186.22, subd. (b)(1)(C)) and 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), for a total term of 50 years to life. The trial court sentenced Campos to a concurrent term of three years on count II.
Campos filed a timely notice of appeal from the judgment of conviction.
The following evidence was presented at trial: On June 26, 2004, Fuentes was shot and killed near the northeast corner of 24th Street and Hampshire Avenue, an area of the Mission District of San Francisco claimed by the Nortenos, a violent Latino street gang. Thirty-five-year-old Fuentes was the leader of M.S.13, a “very vicious” Latino street gang affiliated with the Surenos, a Norteno enemy. He was found laying face down with gunshot wounds to his right cheek, head, and back, and wearing bright blue shoes, the color claimed by the Surenos. Campos, an admitted member of the Nortenos, was identified as the shooter.
The Shooting
Around 8:00 p.m. that day, Fuentes and his six-year-old son Rafael were walking to the store from a nearby home. Rafael testified that he and his father had just crossed the street holding hands when they saw Campos, and that Fuentes let go of his hand. Rafael heard gunshots and ran home crying. He told his mother a man pulled out a gun and killed his daddy. Rafael testified that Fuentes did not have a gun or knife in his hand when he was shot.
Denhi D. witnessed the shooting and testified as follows: She was parking her car at the corner of 24th Street and Hampshire Avenue and heard a gunshot behind her to the right. She turned and saw two men standing about a foot away from each other. One had a gun and was standing with his back to a wall, about a foot away from it. The other man was standing with his back to the street. Denhi heard two more shots and saw the man with the gun shoot the other man, who fell to the ground. The shooter did not fire the gun after the victim was on the ground. The shooting happened “extremely fast—a matter of seconds.” Denhi did not see the two men struggling for the gun or any physical contact between them. The shooter put the gun in his pocket and ran away, and Denhi followed him in her car. Denhi saw him drop the gun in a planter on the sidewalk and go into a laundromat, where he was later arrested without incident.
Denhi later identified Campos as the shooter and the man she followed. Another witness who heard gunshots near 24th Street and Hampshire Avenue saw a man running from the scene and later identified him as Campos.
Police investigators found a.38 caliber revolver stuck inside a potted plant near the scene. The revolver held six rounds of ammunition, and all six shots had been fired. Gunshot residue was found on Campos’s right hand.
Dr. Amy Hart conducted the autopsy of Fuentes and concluded the cause of death was multiple gunshot wounds: one to his right cheek, two to the back of his head, and three to his back. Dr. Hart could not determine the order in which the wounds were inflicted. She saw no evidence of a close or intermediate range of fire, and she concluded all six wounds were “distant gunshot wounds.” Noting that the distance from which the gun was fired could be better measured by test firing the gun, she estimated the shots were fired from a distance of “around a few feet, ” “[b]ut it could be less than that, or more than that, or a great deal more than that.” Dr. Hart said she found no soot or gunpowder particles on Fuentes’s hands, as you would expect to see if his hand was very close to the muzzle when the gun was fired.
A firearms expert testified that bullets and bullet fragments recovered from Fuentes’s body were from the revolver police found.
Testimony Regarding Campos’s Gang Involvement After the Shooting
San Francisco Sheriff’s Department deputies assigned to the county jail testified that gang-related drawings and “kites” were found in Campos’s possession during his incarceration after the shooting. The deputies opined that Campos was a Norteno shot caller and “tier channel” for his “tank, ” who had been given a high place in the gang hierarchy.
Kites are jail messages that contain “microwriting, ” “little teeny bits of paper rolled really, really thin. Toothpick size... maybe even smaller.”
The Prosecution’s Gang Expert
Officer Mario Molina testified for the People as an expert in Latino gangs, discussing the gang culture in general and the Norteno and Sureno gangs in particular. In Molina’s opinion, the shooting was gang-related. He concluded that, in June 2004, Campos was a member of the 22nd and Bryant Street gang, also known as 22B or the Bryant Street Locos (BSL), a subset of the Nortenos. In 2004, 22B was the most criminally active Norteno gang in San Francisco. Campos has gang tattoos all over his body. Field interview cards and photographs from police contacts show he admitted gang membership, was associating with other gang members, and was wearing gang colors in the months before the shooting. Almost all of the contacts occurred in Norteno territory. A photograph shows him wearing a red bandanna as a headband, indicating membership in the Nortenos, who claim the color red. At the time of the shooting, Campos was not wearing red but had a red bandanna that was ready to be worn as a headband.
Campos had never been arrested before June 26, 2004.
Fuentes also had gang tattoos, including the letters “M.S.” In 2004, M.S.13 was the most active subset of Surenos in San Francisco. Like the Surenos, M.S.13 is a Norteno enemy and claims the color blue. Officer Molina saw Fuentes at weekly soccer games playing for the M.S.13 team, but had seen and talked to him on M.S.13 “turf.” His gang moniker was “Memo.” Officer Molina concluded after Fuentes’s death that Fuentes was the head of M.S.13 in San Francisco.
At the time of the shooting, Fuentes was wearing blue shoes in Norteno territory, which would be seen by the Nortenos as a sign of disrespect. Officer Molina said gangs have a code of conduct that requires respect for the neighborhood, and Latino gangs claim specific areas and are very territorial. When a rival enters their territory, they feel disrespected and answer the challenge by “checking” the trespasser with a verbal confrontation, followed by an act of violence. Officer Molina opined that the shooting in this case “is a classical confrontation where a person is perceived as a rival in the defendant’s gang turf, and that person was checked and ultimately resulted in a killing.” Noting that the gang code also requires “payback” for crimes against the gang, he said Campos called at least three other 22B gang members following his arrest. Campos referred to the gang and said: “Be on the lookout. I don’t want anything to happen to you.” Five months after the shooting, Officer Molina returned to the scene and discovered 22B graffiti on the sidewalk where Fuentes was killed, indicating the gang was claiming the crime.
Officer Molina said: “As a gang member, it’s your job to take out your rival.” Nonetheless, gang members are not supposed to attack a rival in church or when he is with members of his family. Younger gang members may break these rules to achieve a higher status. Officer Molina said, however, that gang members almost always act in groups, and it would be unusual for a gang member to act alone in doing violence to a rival.
Officer Molina said 22B would benefit from Campos’s acts in killing Fuentes because the crime would provide recognition, produce fear in the community, and serve as a warning to rival gangs. Officer Molina said Campos would gain recognition and status in the gang. Confirming the significance of the kites and drawings found in Campos’s possession in jail, he said a gang member can move ahead by “putting in work” for the gang—committing crimes, flashing gang colors, or selling drugs. Gang leadership is based on the length of membership, loyalty, and readiness to use violence.
Officer Molina identified a prior gang-related assault and robbery, narcotics sale, and drug possession conviction as the predicate crimes establishing 22B as a criminal street gang under section 186.22.
Campos’s Testimony
Campos said his friends told him in late December 2003 that M.S.13 wanted to kill him because he had disrespected them by dating a girl who was pregnant by an M.S.13 gang member, wearing red in their territory, and turning down Fuentes’s invitation to be a member of M.S.13. Campos was “jumped in” by the Nortenos in February or March 2004 because he wanted protection against M.S.13. He got his gang tattoos in June 2004.
Campos said the Surenos made threats or attempts on his life at least three times in the months before the shooting. At 3:00 a.m. on March 29, 2004, he was in Norteno territory with his former girlfriend and another Norteno. A dark car drove by slowly, looking at them. A few minutes later, the driver got out of the car and started shooting at him, wounding his former girlfriend. He recognized the shooter as a member of M.S.13. After this incident, Campos was afraid.
At 3:00 a.m. on May 22, 2004, Campos was leaving a party in Sureno territory with five friends. They were all wearing red. A blue Honda starting chasing them, and Campos recognized the passenger as Fuentes. Campos and his friends started running. Someone got out of the car and started shooting at them.
After midnight on June 9, 2004, Campos was with his girlfriend, Eugenia Montoya, and two other friends at a pizzeria in Norteno territory. Campos went inside while his friends waited outside with his girlfriend and her dog. An SUV stopped outside, and the passenger started talking to Campos’s friends, then pulled out a black gun with a long barrel. Campos ran outside, and the man, who he recognized as Fuentes, pointed the gun at him. Campos was “scared to death.”
When police arrived, Campos refused to talk to them and left. He said he “wasn’t trying to become a witness. It could get [his] family killed.” According to Officer Molina, the gang code requires “no snitching to police, ” and gang members will not talk to police even when they are victims.
Shortly after that incident, Campos saw Fuentes at the Hall of Justice. Campos was waiting in line when Fuentes walked by him with other M.S.13 gang members. Fuentes took off his shirt and showed Campos his tattoos. Fuentes’s friend took off his blue belt and showed it to Campos. Campos was scared.
After that incident, Campos bought a gun to protect himself.
On the evening of June 26, 2004, Campos was walking on 24th Street toward Potrero Avenue to get more tattoos. He was carrying his gun in his front waistband to protect himself. He was not wearing red clothing. He had his red bandanna in his front pocket but was not displaying it. He did not see any Nortenos he knew in the area. He crossed Hampshire Avenue and saw Fuentes with his child. Fuentes let go of the child’s hand, and the child walked away and “went inside somewhere.” Fuentes came toward Campos. “He was looking mad.” Campos backed up to a wall as Fuentes approached. Two to three feet from Campos, Fuentes “bent over, ” and Campos thought he was reaching for a gun, so Campos pulled out his own gun. Fuentes reached for the gun and grabbed it. Campos pulled back and, in a panic, started shooting because he was scared for his life: “He could take the gun away from me and kill me. He was bigger and stronger than me.” He said he was not thinking about improving his position in 22B; he just wanted to defend himself: “Could be me or him. He had tried to kill me in the past.” Campos said if he had run away, he risked being shot. He has “gained [status and prestige]. But that wasn’t what [he] wanted.” Although he killed a rival gang member, he did not do it for the gang.
Rafael testified that Fuentes “bent over” right before the shooting.
Fuentes was 5’5” tall and weighed 211 pounds. Campos was a little taller but 50 to 60 pounds lighter.
Testimony Regarding the March 29, May 22, and June 9, 2004 Incidents
Officer Raul Elias testified that on March 29, 2004, at 3:30 a.m., he encountered Campos and a friend assisting a female who had a bullet wound. He found bullet casings in the area of the shooting and bullet holes in a vehicle parked there. The victims described the shooter as a Black male, six feet tall and 170 pounds. He was not wearing gang colors. The victims did not say they recognized the shooter or that he was a gang member.
At 3:40 a.m. on May 22, 2004, officers responded to a call of “shots fired.” At the scene, they found bullet casings from a semiautomatic weapon, as well as bullet holes in a wall of a building and vehicles parked nearby. A witness, who testified at trial, told the officers two Latino males in a blue two-door Honda Civic were shooting at six Latino males in red clothing, who were running away. The witness described the shooter as: bald, 18 to 20 years old, 5’ 5” tall, weighing 160 pounds, and wearing a blue shirt. Officer Robert Greiner learned of the shooting during briefing that day, and at 5:30 p.m. that afternoon, stopped a blue Honda with Fuentes and two other Latino males inside. The driver was a Sureno. No weapons were found in the vehicle.
On June 9, 2004, Officer Marco Garcia responded to the pizzeria where someone had brandished a gun. A male and female were wearing red shirts, but a third male, who refused to provide his name, was not wearing red. Officer Garcia noted a shooting in Sureno territory an hour and a half later that he believed was retaliation for the pizzeria incident, and indicated the man with the gun was a 16th Street Sureno, not M.S.13.
Eugenia Montoya, who was at the pizzeria, testified at trial that a truck drove up, and the passenger, a Latino male in a blue sweater, asked if she and her friend were Nortenos. When her friend said he was, the man pointed a gun at her and said it would be better to shoot her and her dog.
The Prosecution’s Rebuttal Witness
Jarred Newman (Newman), Campos’s cellmate in July 2004, testified against him. Newman said that, when a candlelight ceremony for Fuentes was shown on television, Campos commented, “Pinches Scrapa, ” indicating that Fuentes was a “scrap, ” a derogatory term for a Sureno. Shortly thereafter, Newman heard Campos talking again about the incident. Campos said he had killed Fuentes and “gave a visual of how it went down”: He first saw Fuentes across the street a half a block to a block away and was throwing gang signs to him and showing his tattoos. Campos crossed the street and approached Fuentes, who was holding hands with his child, and they exchanged words. Fuentes said, “You are loco. Leave me alone[.] I am with my kid” and pulled a knife. Campos backed off and followed Fuentes for a couple of blocks, and Fuentes realized he was being followed. Campos ran back toward Fuentes, opened his sweatshirt, and showed his gun, then shot Fuentes in the face and chest. Campos was happy about the incident and said Fuentes’s son would grow up to be a scrap, hate Nortenos, and “come after them” one day. He did not say he knew Fuentes before the shooting.
Attorney Argument
The prosecutor contended Campos killed Fuentes “in classic execution style” to benefit the gang and gain status. She argued that Fuentes was a rival who disrespected Norteno territory and was an easy target because his son was with him. The prosecutor acknowledged Fuentes’s membership in M.S.13, but downplayed it, maintaining Campos was the aggressor, his claim of self-defense was “all fabricated, ” and it was “ridiculous” to tie Fuentes to the March 29, May 22, and June 9, 2004 incidents.
The defense argued that Fuentes came toward Campos and backed him up against a wall, noting that Fuentes was “a strong muscular man... [a] powerful man” and Campos was an “18-year-old kid who is thin and who is very afraid.” Campos emphasized that the shooting occurred quickly, leaving no time for cool reflection.
DISCUSSION
I. Campos’s Request for an Evidentiary Hearing
On appeal, Campos contends “the prosecution’s failure to discharge its obligations under [Brady, supra, 373 U.S. 83] deprived [him] of a fair trial” and that “the trial court erred in failing to permit any inquiry into the nature of the [undisclosed] evidence or the circumstances of its nondisclosure, ” including “the circumstances under which it came into the possession of the prosecution team.”
A. Relevant Proceedings
After Campos moved for a new trial, the prosecutor sent defense counsel a letter stating in pertinent part: “ ‘It has come to my attention that there may be a federal informant who provided information to the Daly City Police Department about a shooting and that this informant provided information that “Memo” [Fuentes] was the purported driver of the vehicle. I have nothing in writing regarding this. [¶] I have contacted Inspector Draper of the Daly City Police Department who declined to provide any documentation concerning this as there is an ongoing investigation. [¶] I am sharing this information with you in an abundance of caution.’ ”
Campos filed a request for an evidentiary hearing “in connection with pending motion for a new trial” “to develop a factual record as to new evidence which the prosecution disclosed... after his [motion for a new trial, ] which raises factual issues as to whether (1) the prosecution complied with its obligation to disclose material evidence to the defendant prior to or during trial, and (2) the preclusion of expert testimony on the alleged victim’s violent activities was prejudicial.” The trial court denied Campos’s request, stating: “I am... not persuaded that any evidentiary hearing is necessary in this case.... [O]n this record, there is no plausible or significant or any Brady error in this case, or I don’t believe this is Brady material that would necessarily come in to any trial.... [I]t does not raise any new issues in this case. There is a lot of evidence in this case regarding the victim’s violent nature on prior occasions, and that has been corroborated by the defendant’s testimony, by the police reports that were made at the time, corroborated by the facts of those previous incidents that were not disputed by the prosecution. [¶]... [T]he presentation by the defense and this motion... presents the trial as if... very little information regarding the victim’s shot calling status and his previous offenses didn’t reach the jury and he was presented as some sort of peaceful ordinary citizen. That is clearly not the case in this trial. Again, his position in the gang culture and community was fully presented by competent, admissible evidence. This new—this other information doesn’t change that, nor... indicate... that it would be a legitimate basis for a granting of a new trial. On this showing, an evidentiary hearing is not required by law and the court furthermore exercises its discretion not to hold it.”
B. Brady v. Maryland
“The prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment. [Citations.]” (In re Miranda (2008) 43 Cal.4th 541, 575.) “ ‘Evidence is “favorable” if it... helps the defendant or hurts the prosecution, as by impeaching one of [the prosecution’s] witnesses.’ [Citation.]” (Id. at p. 575.) “ ‘Evidence is “material” “only if there is a reasonable probability that, had [it] been disclosed to the defense, the result... would have been different.” ’ [Citations.]” (Ibid.) This duty not only applies to evidence within the knowledge of the prosecutor, but also requires the prosecutor “to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” (Kyles v. Whitley (1995) 514 U.S. 419, 437 (Kyles).) Any such evidence “is imputed to the prosecution. ‘The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation.’ [Citations.]” (In re Brown (1998) 17 Cal.4th 873, 879.) A failure to make the required disclosure violates due process “irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87; People v. Hoyos (2007) 41 Cal.4th 872, 917, citing United States v. Agurs (1976) 427 U.S. 97, 107 [duty to disclose even in the absence of a defendant’s request].)
C. Analysis
In the trial court, Campos did not assert a Brady violation as an independent ground for a new trial and sought only an evidentiary hearing to develop a factual record regarding the new evidence. (See Cal. Criminal Law Procedure and Practice (Cont.Ed.Bar, 2010), §§ 34.7, 34.11, pp. 1001, 1003 [prosecution’s failure to disclose evidence is a nonstatutory ground for a new trial], citing Merrill v. Superior Court (1994) 27 Cal.App.4th 1586.) Accordingly, we do not consider the argument, to the extent Campos asserts it on appeal, that the prosecution failed to meet its Brady obligations. Our review is limited to the trial court’s denial of his request for an evidentiary hearing.
Campos sought an evidentiary hearing “in connection with [a] pending motion for a new trial, ” apparently based on his contention that “[t]he undisclosed evidence bears on [a] presently pending issue” set out in the motion—whether the trial court’s limitation of the gang expert’s cross-examination was prejudicial[.]” As will appear, we find no prejudicial error relating to the cross-examination of Officer Molina. The undisclosed evidence does not alter our conclusion in this regard.
Campos maintains “where a factual question is raised as to whether a Brady violation has occurred, the defendant is entitled to have it determined by the trial court in an evidentiary hearing.” The authority on which he relies, however, addresses the right to an evidentiary hearing in federal and state habeas proceedings in which a Brady violation is asserted, not a trial court’s duty to conduct such a hearing in deciding a motion for new trial or in determining whether there are grounds for a Brady motion in the first instance. (See People v. Duvall (1995) 9 Cal.4th 464, 478; United States v. Perdomo (3d Cir. 1991) 929 F.2d 967, 973; Government of Virgin Islands v. Martinez (3d Cir. 1985) 780 F.2d 302, citing United States v. Alexander (4th Cir. 1984) 748 F.2d 185, 193.) The trial court’s discretion to order an evidentiary hearing in this proceeding stems from its “inherent power to control the proceedings before [it] [citation] and to adopt suitable methods of practice [citation] to the extent its orders do not conflict with any statute and are not inconsistent with law. [Citations.]” (Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, 542-543; see § 1044 [“It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved”].) If a course of proceeding is not established by statute, “any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” (Code Civ. Proc., § 187.) Campos provides no analysis or authority compelling the trial court, in the exercise of this discretion, to conduct an evidentiary hearing to explore the possibility of a Brady violation.
No such hearing was required here in any case. The trial court concluded an evidentiary hearing would not establish a Brady violation regardless of what it showed because the undisclosed evidence was not material. This is a question of law that we review independently. (See People v. Salazar (2005) 35 Cal.4th 1031, 1042.) “[A] showing of materiality does not require demonstration... that disclosure... would have resulted ultimately in the defendant’s acquittal....” (Kyles, supra, 514 U.S. at p. 434.) “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ [Citation.]” (Ibid.) Undisclosed evidence is material under Brady if it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Kyles, at pp. 434-435, fn. omitted; In re Miranda, supra, 43 Cal.4th at p. 575.)
Applying these principles, we agree with the trial court’s conclusion that the undisclosed evidence was not material. First, as the trial court recognized, there was considerable evidence at trial showing Fuentes’s violent nature. Specifically, the jury heard evidence that Fuentes was a known member of M.S.13, a “very vicious street gang” that was responsible for shootings, stabbings, and other homicides in San Francisco and the most active subset of Surenos in the city in early 2004. The evidence showed Fuentes’s deep entrenchment in the gang: He had gang tattoos, hung out in gang territory, and was wearing gang colors at the time of his death. His associates were M.S.13 and Surenos, and the prosecutor repeatedly referred to him at trial using his gang moniker, “Memo.” Indeed, the People’s gang expert, Officer Molina, concluded that Fuentes was the leader of M.S.13, the “shot caller” who controlled the gang, noting that a gang member’s rise to such a position is based in part on “his readiness to use violence.” Officer Molina’s testimony indicates that the shot caller often initiates and organizes gang killings, as gang members are expected to “take out” rival gang members and retaliate violently for past wrongs. Officer Molina acknowledged a Sureno slogan: “Kill a Norteno, win a prize[;] kill a Sureno and your whole fucking family dies.”
Contrary to Campos’s assertion, the jury heard evidence that Fuentes committed specific acts of violence. Campos identified Fuentes as a passenger in the car involved in the May 22, 2004 drive-by shooting and as the one who threatened him with a gun on June 9, 2004. Testimony from police officers and percipient witnesses confirmed that these incidents occurred.
Second, the undisclosed evidence would have done little to undermine the prosecution’s attempt to paint Fuentes as a “benign” gang member, as Campos contends, since it identifies Fuentes only as the driver of the vehicle, not the shooter. Nor would it have lent significant force to Campos’s impeachment of Officer Molina, who did not testify that Fuentes was nonviolent or deny that Fuentes was involved in gang activity. Assuming Campos could obtain admissible evidence of the undisclosed shooting, it might corroborate his testimony that Fuentes participated in the incidents against him and rebut the prosecutor’s contention it is “ridiculous” to conclude Fuentes was involved. As noted above, however, the jury heard similar evidence suggesting Fuentes’s involvement in the May 22, 2004 shooting itself. A police officer testified that on the same day as the May 22, 2004 shooting, he stopped a car matching the description of the vehicle involved in that incident and encountered Fuentes and another Sureno inside.
Although the question is a close one, we do not believe the undisclosed evidence “reasonably could be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (See In re Miranda, supra, 43 Cal.4th at p. 575.)
Campos argues that “the exact nature of the evidence and... its possible effect on the trial” cannot be determined without an evidentiary hearing. This argument overlooks one essential point: in determining materiality, the evidence at issue is what is known to the prosecutor or “the others acting on the government’s behalf in the case” (Kyles, supra, 514 U.S. at p. 437), “ ‘information gathered in connection with the government’s investigation’ ” (In re Brown, supra, 17 Cal.4th at p. 879), evidence known to the “prosecution team” (In re Steele (2004) 32 Cal.4th 682, 697). Here, the trial court based its decision on the bare facts in the prosecutor’s possession, which her letter indicates were all she was able to obtain. There is no indication the person with knowledge of the details of the undisclosed shooting, Sergeant Jaime Draper of the Daly City Police Department, participated in the investigation of Fuentes’s death or the prosecution of Campos. “ ‘[T]he prosecution cannot reasonably be held responsible for evidence in the possession of all government agencies, including those not involved in the investigation or prosecution of the case.’ [Citation.]” (People v. Uribe (2008) 162 Cal.App.4th 1457, 1476, citing In re Steele, at p. 697.)
Campos contends Sergeant Draper was “in close consultation with Officer Molina, ” so “it is clear that the information regarding Fuentes’s participation in a gang-related murder was available to Officer Molina whether he in fact knew of it himself. And that is all that is required to bring the evidence within the Brady obligation.” He provides no legal authority, however, establishing that mere availability of evidence is sufficient to invoke a prosecutor’s Brady obligation. Indeed, the authority on which he relies confirms that Brady requires disclosure only of evidence known to the prosecution team, not all information available to its members. (In re Steele, supra, 32 Cal.4th at p. 697 [whether the evidence is known to members of the “prosecution team, ” including both investigative and prosecutorial agencies and personnel]; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314-1315 [same].) Assuming, without deciding, that Officer Molina was a member of the prosecution team, the record does not show he knew more about the undisclosed shooting than the prosecutor. In setting out his expert qualifications, he said he works with and shares information with other law enforcement agencies outside of San Francisco, including Sergeant Draper. Sergeant Draper is assigned to the San Mateo Gang Task Force, which has “sort of a network” with San Francisco. Officer Molina said he attended monthly meetings “to see what goes on in San Mateo... [and] just to stay current with each other....” Any claim that he was in possession of additional evidence regarding the shooting, however, is speculation at best, as the record does not indicate he discussed this case with Sergeant Draper. The trial court properly concluded, therefore, that the evidence within the prosecutor’s knowledge was not material and an evidentiary hearing to determine when and how it came to her attention was unnecessary.
The broad application Campos seeks to give Brady would also hold the prosecution responsible for evidence within the knowledge of all other contact persons Molina identified in Contra Costa County, Richmond, Hayward, San Jose, and Salinas.
To the extent Campos’s request for an evidentiary hearing on the Brady issue was brought “in connection with [a] pending motion for a new trial, ” we note that section 1181, the statute that sets out the grounds for a new trial in California, does not require the trial court to hold an evidentiary hearing. When a motion for a new trial is based on jury misconduct, trial courts have discretion to conduct evidentiary hearings in deciding a motion for a new trial when necessary to determine a material fact in dispute. (People v. Avila (2006) 38 Cal.4th 491, 604 [jury misconduct].) Even in such cases, however, “ ‘[t]he hearing should not be used as a “fishing expedition” to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred.’ ” (Avila, supra, at p. 604.) The evidence Campos submitted does not show such a possibility here.
Federal and state habeas proceedings do not provide for an evidentiary hearing based on the bare possibility that a Brady violation has occurred. (See Cal. Rules of Court, rule 4.551(f) [“An evidentiary hearing is required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact”]; Duvall, supra, 9 Cal.4th at pp. 475-478 [in state habeas proceeding, the court evaluates whether petition pleads sufficient facts that, if true, would entitle petitioner to relief and if so, issues order to show cause, prompting a return alleging facts justifying the detention, a traverse admitting or denying these factual allegations and framing the material factual issues in dispute that require an evidentiary hearing]; Campbell v. Wood (9th Cir. 1994) 18 F.3d 662, 679 [“An evidentiary hearing is not required on allegations that are ‘conclusory and wholly devoid of specifics.’ ”]; see also Strickler v. Greene (1999) 527 U.S. 263, 286-287 [“Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review.... The presumption... that prosecutors have fully ‘ “discharged their official duties, ” ’ [citation], is inconsistent with... a procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred”].)
II. Fuente’s Reputation for Violence and the FBI Report
A. The Cross-Examination of Officer Molina
Campos filed a motion in limine, seeking to cross-examine Officer Molina regarding his knowledge of Fuentes’s reputation in the community for violence—specifically his role as “the head of the notorious [M.S.13] gang in San Francisco, ” his involvement in other criminal acts, and an FBI report indicating he had shot someone while dressed as a homeless person and was training other gang members to commit “undercover” shootings in this manner. Campos contends that, in denying his motion, the trial court committed prejudicial error and deprived him of a fair trial. He concedes he elicited testimony “that the Sureno gang was responsible for considerable violence and illegal activity” but argues “the court’s ruling precluded [him] from establishing that Fuentes himself was... a dangerous and violent person. He contends the trial court’s ruling also allowed the prosecutor “to portray Fuentes in glowing terms as a ‘family man, ’ with only minimal [gang] contacts....”
The People filed a motion in limine seeking to exclude the FBI report, contending it was unreliable hearsay.
Campos provides no citations to the record showing the trial court made a final decision denying his motion or identifying the evidence excluded. The only discussion we find in the record culminates in a preliminary ruling by the trial court not to allow the evidence during the defense’s cross-examination of Officer Molina unless there was evidence in the record at that time supporting a claim of self-defense. The trial court said it would rule on the issue at the beginning of Officer Molina’s cross-examination, but that, in any case, “the expert would be subject to recall should the victim’s reputation become relevant.” The trial court noted that its ruling was probably just “postponing what might well be inevitable” and invited defense counsel to seek a sidebar to revisit this issue at “the right time.”
We find no indication in the record that the trial court addressed this issue during Officer Molina’s cross-examination or that defense counsel raised it again. We also note evidence at trial regarding Fuentes’s gang tattoos, membership in a violent gang, and role as a “shot caller” for M.S.13. Thus, the record does not show the trial court denied the defense the opportunity to question Officer Molina regarding Fuentes’s reputation for violence.
The Attorney General concedes the court excluded the reference to the FBI report during the cross-examination of Officer Molina, but does not provide a record citation. We note, however, that in the opposition to the motion for a new trial, the People emphasized that the trial court’s ruling on his motion in limine to cross-examine the People’s gang expert regarding Fuentes’s reputation for violence was preliminary and that the trial court noted this ruling could change based upon the evidence, but the issue “was not revisited.” The trial court also noted in denying the motion for new trial: “I think I told counsel [the pre-trial in limine rulings] were subject to change if the evidence or the admissibility of certain matters became apparent.”
Even if the defense was precluded from questioning Officer Molina regarding the FBI report, any error in this regard was harmless. First, Campos could not have questioned Officer Molina regarding the contents of the FBI report. Although the shooting incident set forth in that report would have been compelling evidence of Fuentes’s character for violence if the defense had sought to establish it with admissible evidence, the FBI report and its contents were hearsay and were not independently admissible. (Evid. Code, § 1200.) An expert may base his opinion on evidence “whether or not admissible”... if it is the kind of information experts reasonably rely upon in forming an opinion on the subject matter involved. (Evid. Code, § 801, subd. (b).) Although an expert may identify the matters on which he relied, he may not testify regarding the details of matters that are otherwise inadmissible. (People v. Coleman (1985) 38 Cal.3d 69, 92 [“he may not under the guise of reasons bring before the jury incompetent hearsay evidence”].) “A party attacking the credibility of the expert may bring to the jury’s attention material that is relevant to the issue of which the expert was unaware [citation], ... but that party may not by its questions testify regarding the content of that material.” (People v. Visciotti (1992) 2 Cal.4th 1, 81.) Moreover, to the extent an expert mentions inadmissible evidence in identifying the basis for his opinion, the jury may not consider such evidence for its truth. (See Coleman, supra, 38 Cal.3d at p. 92.) Thus, in this case, the jury could have considered the FBI report only for the limited purpose of undermining the basis for Officer Molina’s opinions, not in establishing that Fuentes was a “killer and a trainer of killers” as Campos sought to prove.
Officer Molina never specifically opined that Fuentes was nonviolent or that he did not have a reputation for violence. Thus, we question the FBI report’s impeachment value in any case.
B. Alleged Misconduct by the Prosecution
In a similar vein, Campos asserts that the prosecutor misled the jury and committed prosecutorial misconduct by portraying Fuentes as a family man and a gang member in name only, after she had succeeded in having evidence to the contrary excluded, specifically the FBI report and Fuentes’s reputation for violence.
A prosecutor commits misconduct by arguing a proposition that she knows is contradicted by defense evidence excluded on her own motion. (See People v. Varona (1983) 143 Cal.App.3d 566, 570 [beyond the bounds of acceptable conduct for prosecutor to argue not only the lack of evidence that the defense was ready and willing to produce, but also that the victim was not a prostitute when he knew he was arguing a falsehood]; People v. Castain (1981) 122 Cal.App.3d 138, 146 [obvious misconduct to argue the evidence showed only one other alleged incident of excessive force by police officer after the prosecutor had succeeded in having testimony about a second incident excluded]; see also Miller v. Pate (1967) 386 U.S. 1 [knowing use of false evidence in misrepresenting that paint-stained shorts were stained with blood]; Alcorta v. Texas (1957) 355 U.S. 28 [denial of due process to knowingly give the jury the false impression that the alleged paramour of the defendant’s wife, who he killed, had only a casual relationship with her].)
The prosecutor argued Officer Molina “was familiar with [Fuentes], but only from seeing him before and after the M.S. soccer games in the park. He has no recollection of seeing him dressed out in blue, no recollection of him hanging on the corner in turf.” In fact, Officer Molina testified that he had seen Fuentes and talked to him on M.S.13 turf, and there is no evidence he never saw Fuentes dressed in blue. In addition, the prosecutor emphasized that there was only “one documented contact” involving Fuentes: “What does that tell you about our victim? That this is a guy who is not putting himself out there. He is not out there saying, ‘Hey, I’m a gang member, I’m throwing my gang signs, I’m wearing my colors.’ [¶] So, you see, in fact, our victim is, what, in his 30’s?... You see the young Norteno growing in his commitment to the gang, and the 33-year-old O.G. [Original Gangster] just kind of living his life.” The prosecutor also argued that “for [Campos] to tie [the March, May, and June 9, 2004 incidents of violence] back to Memo is ridiculous.” We need not decide, however, whether this argument amounts to prosecutorial misconduct or a violation of Campos’s due process rights. There is no indication in the record that Campos objected at trial to the prosecutor’s argument and requested an admonition to the jury. By failing to do so, he deprived the trial court of an opportunity to cure any resulting prejudice and waived any assertion of error in this regard. (Whitfield v. Roth (1974) 10 Cal.3d 874, 891-892 [“no consideration [of alleged misconduct] on appeal unless the record shows a timely and proper objection and a request that the jury be admonished.... In the absence of a timely objection the offended party is deemed to have waived the claim of error”]; People v. Friend (2009) 47 Cal.4th 1, 29.)
III. Evidence of Campos’s Gang Activity and Status After the Shooting
Campos contends the trial court erred in failing to exclude evidence of his gang involvement after the shooting, specifically his status as a shot caller high in the gang hierarchy and his possession of gang-related kites and drawings in jail. We review the trial court’s evidentiary ruling for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.)
A. Relevant Proceedings
At the beginning of trial, the People filed a supplemental motion in limine seeking the admission of evidence found in Campos’s jail records establishing his gang affiliation and his elevated status in the gang. The defense objected to “all of the evidence relating to [Campos’s] membership in the gang known as Nortenos” under Evidence Code section 352, offering to stipulate to his gang membership at the time of the shooting. The defense contended the prejudicial impact of evidence of his gang activity after his arrest outweighed its probative value and that this evidence was cumulative and served no relevant purpose. The trial court denied the defense’s objections to the introduction of this evidence, concluding it was strongly relevant “to the reality of an intensity of the gang organization, ” and “the fact that it is evidence which surfaces or is obtained after the incident... has no bearing on its relevance.” The trial court concluded there was no substantial danger of undue prejudice, and the evidence was not misleading, as it did not tend to evoke an emotional bias or response, and the evidence had probative value as it was “strongly illustrative... of the intensity and pervasiveness of the gang culture among its members. Also, may well establish a hierarchy.” The trial court noted that the evidence was relatively innocuous—essentially a membership list—and showed “the level of the firmness of the organization and... that the gang is not just a loose association of like-minded young men, but it has a pervasive and dominant and thoroughgoing culture that pervades almost everything its gang members do.”
Under Evidence Code section 352, the trial court has discretion and “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
At trial, the jury heard evidence from deputies at the county jail that other inmates gravitated toward Campos, a kite containing instructions regarding the information required from new Norteno inmates in his tank was found on his person or in his cell, and he was a Norteno shot caller—the lead person for his tank.
A kite and two gang drawings were found on Campos when he was searched as part of a transfer to a different floor on December 6, 2005. The kite represented basic intelligence gathering for the gang and contained another inmate’s gang monikers, criminal history, and place of origin. One drawing contained a gang slogan, a Norteno symbol of status, and a reference to the Bryant Street Locos. The other drawing was in ink and had Norteno gang symbols, someone holding a weapon, and a reference to the neighborhood Bryant and 22nd Street, the gang’s territory. Deputies retrieved a kite mentioning Campos’s name from a known Norteno inmate. Campos also was seen passing a kite to another inmate. Deputies did not know who authored the kite and drawings.
Deputy Fernando Velasco of the Gang Classification Unit, who testified as an expert in gang membership and activities in the county jail, confirmed that these kites and drawings were affiliated with the Norteno gang. The Nortenos are highly structured and require new Norteno inmates to provide their name, case number, moniker, place of origin, why they are in custody, history, and a contact person to verify membership in good standing. One kite included this information for two new inmates. This kite also provided a tank roster identifying housing units in code. Another kite included Norteno rules for in-house behavior and a tank roster identifying gang members as different cars. Campos was identified as “Jaguar, ” indicating a higher rank. Campos’s access to this information indicates he is a “tier channel, ” a leader tasked with holding information for the tank and reporting to Norteno leaders in other tanks. Deputy Velasco concluded he had been given a high line of hierarchy and made an important person within the gang. This could have resulted from the charges against him or his work for the gang.
Officer Molina said the clown drawing “represent[ed] what the gang culture will call as truth in relationship to the drawing.” He said the ink drawing was a classic gang culture drawing that represented an episode in someone’s life or an event affecting the gang. He said it showed that a hit against a rival had been done for the gang and that the perpetrator was in prison doing time for the killing. The drawing includes the numbers “05, ” which may indicate the year. Officer Molina said these drawings show Campos’s gang commitment and affiliation: “Whoever had this in his possession was definitely involved in gang activity—it is a drawing representing an incident that occurred.
B. Analysis
“When offered by the prosecution, [the courts] have condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact. [Citations.] On the other hand, the defense may be pursuing a legitimate strategy in placing such information before the jury.” (People v. Cox (1991) 53 Cal.3d 618, 660.) Thus, “[i]n cases not involving [a] gang enhancement, ... evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove... issues pertinent to guilt of the charged crime [including specific intent]. [Citations.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Campos acknowledges gang evidence was admissible to the extent it “tend[ed] to prove that, in shooting Fuentes, [he] was motivated by a desire to assist and further the objectives of his gang.” He contends, however, that evidence of his gang involvement after the shooting was not relevant to his mental state at the time of the shooting. He argues: “It is at best only marginally relevant to show that a defendant acted to benefit a gang when he engaged in activities after the act has been committed.” He maintains the trial court should have excluded evidence that did not bear directly on his mental state because of “the great likelihood that such evidence would cause undue prejudice.” We conclude the trial court acted within its discretion in denying Campos’s motion to exclude this evidence under section 352.
First, we disagree that the evidence at issue was only “tangentially relevant, ” as it bears directly on the truth of the gang enhancement and Campos’s mental state at the time of the shooting, specifically, whether he acted “for the benefit of, at the direction of, or in association with” the gang and with the specific intent to “promote, further, or assist in any criminal conduct by gang members.... ” (§ 186.22, subd. (b)(1).) The evidence he seeks to exclude has a “tendency in reason” to prove the level of his entrenchment in the gang and shows the shooting increased his status in the gang. (See Evid. Code, § 210 [evidence is relevant if it “[has] any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”].) Although this evidence does not definitively establish Campos’s intent at the time of the shooting, it permits an inference that he acted in service of the gang and his reputation in it. We also conclude the trial court properly admitted evidence that the gang claimed the shooting and benefited from it, as this evidence reasonably permits an inference that Campos acted for the gang’s benefit.
Contrary to Campos’s unsupported assertion, this evidence, which relates to his postshooting conduct, is probative on the issue of his intent at the time of the shooting. A defendant’s subsequent conduct may constitute circumstantial evidence of his intent at the time of the offense. (See, e.g., People v. Alvarez (2002) 27 Cal.4th 1161, 1182 [defendant’s postattack behavior in returning to the victim’s home is circumstantial evidence of his lewd intent at the time of the assault as it shows his obsession with and possible sexual interest in the victim]; People v. Abilez (2007) 41 Cal.4th 472, 508 [“possession and subsequent sale of goods stolen from the victim’s home shortly after the crimes is strong circumstantial evidence that [defendant] harbored the intent to commit larceny when he entered her home”]; see also People v. Wong (1973) 35 Cal.App.3d 812, 831 [acts of concealment, constitute “ ‘circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself’ ”]; People v. Garcia (2008) 168 Cal.App.4th 261, 283-284 [evidence defendant resisted arrest is admissible to show his consciousness of guilt].)
Second, we conclude that, in the circumstances of this case, the admission of evidence of Campos’s gang activity after the shooting was not unduly prejudicial. The prosecution’s theory of the killing placed Campos’s membership and involvement in the gang directly at issue. Thus, this is not a case where the defendant’s membership in a gang is cumulative or largely incidental to the crime and is introduced primarily to inflame the jury. Indeed, the jury in this case already knew of Campos’s gang affiliation and had heard evidence about gang culture tending to prove his motive for killing Fuentes. On this record, evidence that Campos was a leader responsible for gathering and possessing gang membership information was not inflammatory and had little potential for provoking an emotional, irrational response from the jury.
The cases on which Campos relies are distinguishable. In each, the gang evidence is not relevant to a gang charge or enhancement, is of limited probative value, and invites a jury to infer the identity of the perpetrator of the offense from the defendant’s membership in a gang. (See People v. Maestas (1993) 20 Cal.App.4th 1482, 1497; Williams v. Superior Court (1984) 36 Cal.3d 441, 448, fn. 5 [reversing trial court’s denial of motion to sever two murder counts, as the only similar factor between the two incidents was that they were both gang-related and a single trial could have a prejudicial impact since the evidence of gang membership was potentially inflammatory and could produce “ ‘an “over-strong tendency to believe the defendant was guilty of the charge merely because he is a likely person to do such acts” ’ ”]; In re Wing Y. (1977) 67 Cal.App.3d 69, 78-79 [evidence of gang membership and activity was not relevant to prove the identity of the person who committed the offense and allowed “unreasonable inferences... by the trier of fact that [the defendant] was guilty... on the theory of ‘guilt by association’ ”], italics omitted; People v. Perez (1981) 114 Cal.App.3d 470, 479 [noting evidence was cumulative for purpose for which it was purportedly offered].)
Campos contends, however, that “the massive jailhouse posthomicide evidence of [his] prominent involvement in the Nortenos had a prejudicial impact on [whether the jury adopted the defense theory that the killing was based on personal animosity or the prosecution’s theory that it was a gang killing to benefit the Nortenos].” The evidence, of course, was prejudicial to Campos in the sense that it was adverse to his case. “The governing test [under Evidence Code section 352], however, evaluates the risk of ‘undue’ prejudice, that is, ‘ “evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues, ” ’ not the prejudice ‘that naturally flows from relevant, highly probative evidence.’ ” (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998)17 Cal.4th 800, 823, fn. 1; accord, People v. Salcido (2008) 44 Cal.4th 93, 148.)
We conclude, accordingly, that the trial court acted within its discretion in allowing the introduction of this evidence.
In so holding, we reject Campos’s contention that this evidence deprived him of notice his conduct violated section 186.22 because the “conduct he engages in must be proscribed when he commits it.” Relying on People v. Godinez (1993) 17 Cal.App.4th 1363, he improperly conflates the requirement of prior notice that one’s conduct constitutes an offense with the proof of that conduct. (See id. at p. 1369[unless offenses establishing a “ ‘pattern of criminal gang activity’ ” under section 186.22 occur before the crime, the defendant is deprived “of notice, in advance of his conduct, that his acts will fall within the proscription of section 186.22”].)
IV. The Alleged Failure to Instruct on an Element of Count II
Campos contends the conviction on count II is “defective” and must be reversed because the trial court’s instructions on this count permitted the jury to convict him without finding that his intent in killing Fuentes was to assist or aid the gang. “We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.]” People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
A. The Trial Court’s Instructions
The trial court instructed the jury in pertinent part: “Count II of the information charges the separate crime of participation in a street gang, and I’m now going to instruct on that count. [¶] The defendant is accused in count II of having violated section 18[6].22, subdivision (a) of the Penal Code, a crime. [¶] Every person who actively participates in any criminal street gang with knowledge that the members are engaging in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, is guilty of a violation of Penal Code section 186.22, subdivision (a), which is a crime.” “In order to prove this crime, each of the following elements must be proved: [¶] One, the defendant actively participated in a criminal street gang; [¶] and two, the members of that gang engaged in or have engaged in a pattern of criminal gang activity; [¶] and three, the defendant knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; [¶] and four, the defendant directly and activ[ely] committed the crime of murder or voluntary manslaughter of Guillermo Fuentes, also known as Luis Fuentes, on June 26, 2004.”
B. Analysis
We agree that the trial court failed to instruct on an element of count II. “Under federal law, the ‘Fifth Amendment right to due process and Sixth Amendment right to jury trial... require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1208 (Cole).) “[U]nder section 186.22, subdivision (a), the defendant must necessarily have the intent and objective to actively participate in a criminal street gang.... [T]he focus of [this] statute is upon the defendant’s objective to promote, further or assist the gang in its felonious conduct.... Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468, fns. omitted.) “It requires the defendant to actively participate in a criminal street gang, have knowledge that its members engage in criminal activity, and have the intent and objective to further the gang’s felonious conduct. [Citation.]” (Id. at p. 1468.) In People v. Ngoun (2001) 88 Cal.App.4th 432, the court held that section 186.22, subdivision (a) applies not only to one who aids and abets a gang-related offense, but also to the perpetrator of the offense. (Ngoun, at p. 436.) But, that case did not eliminate the statutory requirement that to be criminally liable for this offense, a defendant must “willfully promote[], further[], or assist[] in any felonious criminal conduct by members of that gang.” (§ 186.22, subd. (a).) Here, the trial court correctly defined the offense, but followed this instruction with another one that allowed the jury to find a violation of section 186.22, subdivision (a) without a showing that in killing Fuentes, Campos had “willfully promote[d], further[ed], or assist[ed] in felonious conduct by [the gang].” The jury could reasonably have understood that it could convict Campos under section 186.22, subdivision (a) if he: (1) knowingly and actively participated in a criminal street gang; and (2) unlawfully killed Fuentes, without finding a link between his conduct and his participation in the gang.
Nonetheless, we conclude this instructional error does not require reversal of the judgment. “[A] trial court’s failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury’s verdict. [Citations.].” (Cole, supra, 33 Cal.4th at pp. 1208-1209, citing Chapman v. California (1967) 386 U.S. 18, 24.) Instructional error is not prejudicial when the jury necessarily resolves the factual question posed by the omitted instruction adversely to the defendant under other properly given instructions. (People v. Kobrin (1995) 11 Cal.4th 416, 428, fn. 8, 430 [omission of an element of the offense]; People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165; accord, People v. Wright (2006) 40 Cal.4th 81, 98.) In finding the gang enhancement true, the jury necessarily found that Campos acted with the intent to promote, further, or assist in the gang’s criminal endeavours. (See § 186.22, subd. (a).)
Indeed, the trial court instructed the jury that the essential elements of the gang enhancement allegation are: “One, the crime charged was committed for the benefit of, at the direction of, or in association with a criminal street gang; [¶] and two, this crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.