Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE268001, Allan J. Preckel, Judge.
NARES, J.
A jury convicted Joaquin Jose Ruiz of one count of torture (Pen. Code, § 206), three counts of felony false imprisonment (§§ 236, 237, subd. (a)), one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), three counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), one count of receiving stolen property (§ 496, subd. (a)), two counts of receiving a stolen vehicle (§ 496d), and one count of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). The jury also convicted Joshua Christopher Diaz of one count of torture, two counts of false imprisonment, two counts of unlawfully taking a driving a vehicle, one count of evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), and one count of possession of a short-barreled shotgun (§ 12020, subd. (a)(1)). The jury found Ruiz and Diaz committed the torture and false imprisonment offenses as well as Ruiz's felony assault offense for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(5). The jury also found that Ruiz personally used a firearm (§ 12022.5, subd. (a)) during the commission of one of the false imprisonment counts and was armed (§ 12022, subd. (a)(1)) during the commission of the unlawful taking and driving of a vehicle count. The jury found Diaz was armed (§ 12022, subd. (a)(1)) during the commission of one of his unlawful taking and driving a vehicle counts and the commision of his evading a police officer with reckless driving count.
Statutory references are to the Penal Code unless otherwise specified.
The jury acquitted Ruiz of one count of brandishing a firearm to a person in a motor vehicle (§ 417.3) and one count of taking and driving a vehicle. The jury acquitted Diaz of one count of assault by means of force likely to produce great bodily injury, one count of false imprisonment and one count of receiving stolen property. The trial court declared a mistrial with respect to a rape count against Ruiz, a carjacking count against Diaz and a possession of a deadly weapon count against Diaz after the jury was unable to reach a verdict on those counts.
The trial court sentenced Ruiz to a indeterminate prison term of 15 years to life plus a consecutive determinate term of 23 years. The court sentenced Diaz to an indeterminate prison term of 15 years to life plus a consecutive determinate term of nine years eight months.
Ruiz appeals, contending (1) the gang allegations were not supported by substantial evidence, (2) it was error to instruct the jury pursuant to CALCRIM No. 1403, (3) two of his convictions for possession of a firearm by a felon should be reversed because the crime is a continuing offense, (4) insufficient evidence supported the finding he used a firearm in the false imprisonment counts, (5) because only one gun was involved in his crimes, the enhancement for being armed in connection with the unlawful taking and driving of a vehicle should be stayed under section 654, and (6) the assault upon and the false imprisonment of one of the victims were part of an indivisible course of conduct and the sentence on that false imprisonment count should have been stayed under section 654.
Diaz also appeals, contending (1) the evidence was insufficient to support his torture conviction, (2) the trial court's instructions on aiding and abetting torture were erroneous, (3) insufficient evidence supported the gang allegations, (4) the court should have stayed his sentence on the evading an officer with reckless driving count pursuant to section 654.
FACTS
A. Background
In November 2006 Ruiz and his girlfriend, Ebony Miranda, lived in a house in Alpine, which was owned by Natasha Darby. Ruiz and Darby were cousins through marriage. Rachel Cohen also lived in the house. Cohen's sister, Angelica R., and Cohen's brother-in-law, Joseph Sanchez, stored their belongings at the house and occasionally stayed overnight at the house. Although they did not live there, Diaz and Jose Morales spent a lot of time at the house in Alpine. All of these individuals had two things in common: they smoked methamphetamine daily; and they supported their drug habit by stealing vehicles and selling the rims and stereos from the vehicles. Ruiz was the leader or "shot caller" of the vehicle-stealing operation. Cohen sometimes served as lookout when the men stole vehicles.
Darby, a member of the Barona Indian Tribe, also had income from the tribe.
Ruiz was a member of the Imperial Beach Dukes gang, and his moniker was "Big Drowzy." Diaz and Morales were members of the El Cajon Locos gang. Diaz's moniker was "Little Drowzy, " and Morales's moniker was "Peewee."
B. Crimes Against the Person: Torture, False Imprisonment, Felony Assault
On the day after Thanksgiving, Cohen, Ruiz, Miranda and Darby were in the Alpine house. Ruiz summoned Cohen in an angry voice and asked: "What kind of sick person do you think I am?" Ruiz accused Cohen of telling Miranda that he had slept with Darby. When Cohen denied this, Ruiz pushed her head into the wall and then pulled her by the hair into his bedroom, where Miranda and Darby were sitting on the bed. Ruiz threw Cohen on the floor and punched her in the head a few times while threatening to kill her, her sister and her brother-in-law. Ruiz then told Darby to get some trash bags and tape the bags on the floor. After complying with this order, Darby rolled Cohen onto the taped bags. Ruiz threw Cohen some handcuffs and zip ties and told her to put them on, but she was unable to do so. Ruiz hit her and directed Darby to put them on Cohen. Darby put the handcuffs on Cohen's ankles and the zip ties on her wrists.
Next, Ruiz told Darby and Miranda to leave the room, and he turned up the radio. Ruiz punched Cohen and then showed her some bolt cutters and asked her if she wanted to lose a finger or toe. Cohen replied by crying and Ruiz hit her again. When Cohen said she rather lose a toe, Ruiz started to squeeze the bolt cutters around her little toe, but was interrupted by a phone call and left the room. When he returned, Ruiz blindfolded Cohen and moved her into the closet of Darby's room, where he left her for what seemed like hours. Cohen awoke when water was splashed on her face. She heard Ruiz, Darby and Miranda laughing and joking that she was dead. Ruiz hit Cohen and placed a chair over her so she could not move her arms. Ruiz also told Cohen, who was blindfolded, that Diaz and Morales were there. Cohen heard Ruiz tell Diaz and Morales she had informed Miranda that Ruiz and Darby had slept together. Ruiz then ordered Cohen: "Tell my two homies what kind of sick fuck you think I am." Ruiz told Cohen he was going to teach her a lesson and turned up the radio. Ruiz, Diaz and Morales began hitting and kicking Cohen on all sides of her body. Although Cohen could not see because of the blindfold, she recognized the voices of Diaz and Morales.
At the preliminary hearing, Cohen testified that Diaz did not say anything during the beating and kicking incident. At trial, Cohen testified she was mistaken at the preliminary hearing.
On Sunday, Diaz picked up Angelica and Sanchez from a hotel in La Mesa and drove them to the Alpine house. When they arrived, Ruiz asked Angelica and Sanchez if they had been talking about him sleeping with Darby. Angelica said she did not know what Ruiz was talking about, which angered him. After Angelica asked where her sister was, Ruiz escorted her to his bedroom where Cohen was lying on the floor on top of plastic bags and underneath a chair. She was blindfolded with her wrists and ankles bound, and she was crying. Diaz removed Cohen's blindfold, helped her get up and walked her to the living room, where everyone was gathering. Ruiz then punched Sanchez, knocking him to floor. Ruiz started kicking Sanchez. Angelica started screaming, and Miranda punched her in the mouth. Sanchez was dragged to one of the bedrooms, Angelica was thrown into a closet and tied to the clothes rod, and Cohen was taken back to Ruiz's bedroom, where she fell asleep.
When Cohen woke up, she was blindfolded and started shaking. Ruiz and Diaz told her to stop playing around. Three people started hitting and kicking her. They stopped when Cohen said she was going to throw up. Diaz and Morales took Cohen to the bathroom where she vomited. When they brought her back to the bedroom, Cohen passed out.
Meanwhile, after allowing Angelica to use the bathroom, Ruiz moved a mattress into the room and placed her on it. Ruiz told Angelica he would let her escape out the window and handed her his revolver. He asked her to shoot him with the gun. When Angelica tried to shoot him, Ruiz said, "Tricked you, " and showed her the bullets in his hand.
Shortly thereafter, Cohen and Angelica heard a shotgun blast. Morales had accidentally shot himself, grazing his testicles. Ruiz told Diaz to take Morales to the hospital, and Miranda and Darby accompanied them. Ruiz stayed behind in the house and segregated Sanchez, Cohen and Angelica. Ruiz placed Angelica on the bed and lay down next to her. Angelica testified that Ruiz raped her at this point. After a few minutes, Ruiz told Angelica she had five minutes to get herself, Cohen and Sanchez out of the house before he killed them. Angelica managed to extricate Cohen and Sanchez and the three of them left the house. The trio stole a neighbor's car and drove to the residence of Sanchez's brother in Lemon Grove and later to a motel, paying for the room with money from a purse that was in the car they had stolen.
The next day Cohen telephoned her father, Daniel Cohen, who went to the motel. Daniel Cohen said both his daughters and Sanchez looked like they had been beaten. Cohen and her father drove to Darby's house, did not see anyone there, and called the sheriff's department. A deputy responded, and they followed him to the station in Alpine. Detective Francisca Passalacqua interviewed Cohen and took photographs of her injuries: a black eye, abrasions on her face, scratches on her back, bruising and scrapes on her arms, and bruising on her face and all over her body. Cohen also had several bumps on her head, marks on her wrists and ankles, and bruised ribs. Later, Angelica, who had a swollen lip and a cut on the bridge of her nose, went to the sheriff's station.
Darby's sister, Tanya Darby, visited the house after hearing about what had taken place there during the Thanksgiving weekend. She saw tape on the bedroom floor and a revolver in the master bedroom. There were shotgun and pellet holes in the floor. Ruiz told Tanya Darby that he had "snatched up" Cohen because of rumors and kept Cohen until Angelica and Sanchez showed up.
C. Vehicle-Related and Firearm Crimes
The following Saturday, December 2, 2006, Tanya Darby went to the Alpine house with her father and brother and observed Ruiz putting a box in the trunk of a Dodge Caliber that was parked in the driveway. A revolver fell out of Ruiz's waistband as he put the box in the trunk, and Ruiz bent over and picked up the gun. It was the same gun Tanya Darby had seen in the house earlier that week.
On October 17, 2006, Renee Garza rented the Dodge Caliber from Enterprise Rent-A-Car. Garza loaned the vehicle to Morales and reported it stolen when Morales did not return the car to her. Ruiz was charged with receiving a stolen vehicle in connection with the Caliber, but the trial court dismissed this count pursuant to Ruiz's section 1118.1 motion at the close of the prosecution's case.
Later in the day, Tanya Darby, her father and her brother returned to the house in Alpine and observed Ruiz drive away in a dark blue Honda Accord. Miranda and an unidentified female were also in the car. The Darbys followed Ruiz onto Interstate 8. At one point, the Darbys' vehicle was in the next lane, and Ruiz waved his gun at the Darbys, according to Tanya Darby. In connection with this incident, Tanya Darby used a false name when she called 911 to report the crime, and the jury acquitted Ruiz of brandishing a weapon. The Honda Accord was reported stolen that morning and recovered three days later. In connection with this vehicle, the jury convicted Ruiz of unlawfully driving or taking a vehicle and found he was armed during the commission of the offense.
Sheriff's deputies searched the Alpine house on December 2. In the backyard, the deputies found the Dodge Caliber, which was packed with Ruiz's belongings, and a black 1993 Acura Integra, which had been stolen on October 6. Inside the garage deputies found a white 1991 Honda Accord, which had been stolen on October 7, with the license plate of a black 1990 Honda stolen the previous day. Additionally, deputies found a dark-colored Nissan with Baja license plates in the garage. Inside the Nissan there were license plates belonging to a 1990 Honda, which had been stolen on November 12. Also in the garage was property that had been inside a Chevrolet Trailblazer, which was stolen on October 27. The Trailblazer had been recovered the same day by LoJack about 150 yards from the Alpine house. In connection with these vehicles and property, the jury convicted Ruiz of two counts of receiving a stolen vehicle (the 1993 Acura Integra and the 1991 Honda Accord) and one count of receiving stolen property (the property inside the Chevrolet Trailblazer and the stolen license plates).
On December 6, sheriff's deputies went to the Alpine house in response to a report of a prowler. They found Ruiz sitting on a chair with his loaded revolver on another chair, which was about a foot away from him. The deputies arrested Ruiz. Inside his pocket was a shaved key. One of Ruiz's three convictions for being a felon in possession of a firearm stems from this incident.
On December 8, Daniel Krueger was approaching his green 1998 Honda Accord in his office parking lot to drive home when he saw someone sitting in the front seat. As Krueger approached the car, the individual opened the car door and started to walk away. Krueger asked him: "What are you doing to my car?" The individual responded by pulling out a sawed-off shotgun and asking Krueger for his keys. Krueger complied and went to his office to call the police. About two weeks later, Krueger received a red light ticket in the mail with a photograph of the driver taken by a camera on December 10 at the intersection of Main Street and Mollison Avenue in El Cajon. At trial, Krueger could not identify the person who carjacked his Honda Accord. In connection with Krueger's vehicle, the jury was unable to reach a verdict on a carjacking count charged to Diaz, but found him guilty of unlawfully taking and driving a vehicle.
On December 10, La Mesa Police Officer Joseph Gaines was dispatched to the scene of a one-vehicle accident at the Interstate 8 westbound off-ramp to El Cajon Boulevard, where he found Krueger's Honda Accord crashed in the center median. The car, however, had license plates from another vehicle. Inside the Honda Accord were several compact discs that had "Drowzy, " "VLE, " and "El Cajon Locates" written on them; two shotgun rounds in the passenger front seat; three shotgun rounds in a box in a black jacket in the back seat; a driver's license and benefits cards for Joseph Sanchez; a checkbook with the names Angelica and Joseph Sanchez; and a black ski mask in the front seat.
At about 1:00 a.m. on December 18, La Mesa Police Officer Hans Warren observed some suspicious activity at a gasoline station on 70th Street and decided to follow a white 2000 Honda Civic leaving the station. After learning from dispatch that the Honda Civic was stolen, Warren called for additional units and continued to follow the car as it entered Interstate 8. The Honda Civic exited the freeway at Mission Center Road and proceeded to the Mission Valley Mall parking lot. By this time, Warren's back up─including the San Diego Police Department's helicopter─had arrived on the scene, and Warren and the officers in the other units activated their red lights and sirens. The Honda Civic immediately drove off with the police in pursuit. The driver of the Civic failed to stop at several red lights and reached speeds of 80 miles per hour before the car's suspension bottomed out and the car struck a water channel at Morena Drive and Tecolote Drive. The driver and passenger fled on foot across Tecolote Creek. Warren pursued them and caught Miranda as she tried to climb a fence. Inside the stolen car was a 12-gauge shotgun slug and a shaved key.
La Mesa Police Officer Thomas Fletcher pursued the driver and caught him along the fence of a trailer park. Fletcher arrested Diaz and found the butt stock or handle of a gun in his pocket. Later that day, the manager of the trailer park found a loaded 12-gauge sawed-off shotgun with the handle missing and turned it over to La Mesa police officers. The gun handle found in Diaz's pocket fit this shotgun, which was shorter than the legal length. In connection with this incident, the jury convicted Diaz of unlawfully taking and driving a vehicle, evading police with reckless driving, and possession of a short-barreled shotgun.
D. Gang Enhancement Evidence
El Cajon Police Detective Royal Bates of the department's gang task force testified the El Cajon Locos gang's primary activities included assault with a deadly weapon, auto theft, murder, narcotics sales and vandalism. Diaz and Morales were members of the El Cajon Locos, and their monikers were "Drowzy" and "Pee Wee." Ruiz had been closely associated with the El Cajon Locos since the early 1990's, and most of his criminal activity was with members of this gang.
Detective Michael Speyrer of the sheriff's department testified that Ruiz was a member of the Imperial Beach Dukes gang, and his monikers were "Drowzy, " "Mr. D, " and "Big Drowzy." Speyrer said that if more than one gang member has the same moniker, the less senior typically will add a prefix such as "little" to the moniker. The primary activities of the Imperial Beach Dukes are vandalism, auto thefts, burglaries, robberies, assaults and homicides.
Gang members commonly work as a crew in their money-making activities, Speyrer testified. Sometimes the crews include gang members from different gangs. Among other things, "mixed crews" are used in car thefts.
Speyrer told the jury that respect within their gang is very important to gang members. Gang members gain respect by "putting in work" or committing crimes and earn more respect for committing serious crimes. Gang members are expected to back up fellow gang members, especially the older ones, to maintain their status within the gang. Not doing so puts them at risk of being beaten up, ostracized and losing the trust and respect of the gang. Gangs practice a code of silence: If a gang member or an associate of a gang talks to law enforcement they typically will be labeled a "rat, " which puts them at great danger─even of being murdered, especially if that person is incarcerated.
Speyrer opined that all of the charged crimes except the rape were gang-related crimes that benefited the gang. According to Speyrer, the crew of car thieves was more than a group of drug addicts committing crimes to support their habits because it involved gang members working together at the direction of a more senior gang member and shot caller. The gang members are intentionally assisting each other in committing crimes. The gang benefits because the crimes enhance the status of the gang as well as each individual participating gang member. Speyrer also testified that a crime that might have started between a single gang member and a victim becomes gang related when other gang members later assist in the crime.
Speyrer testified that Hispanic gang culture frowns upon rape and committing a rape generally would not enhance the status of a gang member.
The prosecution also introduced numerous letters written by Miranda, Diaz and Ruiz while they were in jail, which were replete with gang references.
E. Defense Evidence
Ruiz's mother testified that Ruiz was at her house on the Friday after Thanksgiving and was participating in the family tradition of decorating the house for Christmas on that day. Ruiz's mother said Ruiz did not leave the residence until shortly before it became dark outside.
Testifying in his own defense, Ruiz admitted he was upset by the rumor that he had intimate relations with Darby, his cousin. However, Ruiz said it was not until the Monday or Tuesday after Thanksgiving that he confronted Cohen and Angelica about the rumor. When Cohen and Angelica denied they had spread the rumor, Ruiz yelled at Cohen. Cohen then said that Sanchez was responsible for the rumor. At that point, Ruiz hit Sanchez several times and told the three of them to get out of the house. Ruiz denied doing anything else to Cohen, Angelica or Sanchez. He also denied raping Angelica.
Ruiz denied stealing cars and selling car parts. Ruiz said his only involvement with the stolen cars at Darby's house was that he borrowed the Dodge Caliber.
Diaz did not present any evidence on his behalf.
DISCUSSION
I. RUIZ'S APPEAL
A. Gang Enhancements
Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." The jury found Ruiz committed the torture of Cohen, the false imprisonments of Cohen, Angelica and Sanchez, and the assault of Sanchez "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).)
Ruiz contends there was no substantial evidence to support the jury's gang findings with respect to those crimes. Specifically, he claims the prosecution failed to show that in committing the offenses he had the requisite specific intent to promote, further and assist in criminal conduct by gang members.
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine " 'whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "The substantial evidence standard of review applies to section 186.22 gang enhancements." (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
Under section 186.22, subdivision (b)(1), the prosecution must show more than that a gang member committed a crime. A section 186.22, subdivision (b)(1) gang enhancement requires the prosecution to prove the charged offenses─here, the torture of Cohen, the false imprisonments of Cohen, Angelica and Sanchez, and the felony assault of Sanchez─were committed " 'for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)
Section 186.22 subdivision (b)(1) does not require a showing of intent to promote the gang's activities beyond the crime(s) charged. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19.) As the court explained in People v. Hill:
"There is no requirement in section 186.22, subdivision (b), that the defendant's intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense the defendant commits. To the contrary, the specific intent required by the statute is 'to promote, further, or assist in any criminal conduct by gang members.' [Citation.] Therefore, defendant's own criminal threat qualified as a the gang-related criminal activity. No further evidence on this element was necessary." (People v. Hill, supra, 142 Cal.App.4th at p. 774; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198 ["[S]pecific intent to benefit the gang is not required. What is required is the 'specific intent to promote, further, or assist in any criminal conduct by gang members.' '' Italics omitted.].)
Evidence to support the element of specific intent may be shown by a defendant's conduct, words, and all other circumstances surrounding the commission of the acts. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.) Because "[t]here is rarely direct evidence of a defendant's intent [, s]uch intent must usually be derived from all the circumstances..., including the defendant's actions." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) The specific intent accompanying a particular crime also may be inferred from the circumstances connected with that crime. (See People v. Johnson (1972) 28 Cal.App.3d 653, 657.) Additionally, opinion testimony by a gang expert is admissible to prove the elements of the enhancement. (People v. Gardeley, supra, 14 Cal.4th at pp. 617-620.)
The evidence showed that Ruiz or "Big Drowzy" was the leader or shot caller of a mixed gang car theft crew that was headquartered at Natasha Darby's house in Alpine. Morales, Sanchez, and Diaz or "Little Drowzy" were members of the crew. Diaz was younger than the other crew members and often acted as the gofer of the crew, running errands and providing transportation. Cohen sometimes acted as a lookout when the crew was stealing cars.
Ruiz was incensed when someone told his girlfriend Miranda that he had slept with Natasha Darby because they considered themselves cousins. Ruiz suspected that either Cohen, Angelica or Sanchez had been the culprit, which further infuriated him because he, as the shot caller of the auto theft crew, had allowed the three of them to be members or de facto members of the crew and live and/or store their belongings in the crew's headquarters. Ruiz told Cohen: " 'What kind of sick person do you think I am? After everything I've done for you guys, ' this is how you repay [me]." After a number of episodes in which he beat Cohen, Ruiz told Cohen that Diaz and Morales were at the house. Ruiz ordered Cohen: "Tell my two homies what kind of sick fuck you think I am." Then, Ruiz turned up the radio and he, along with Diaz and Morales, beat up Cohen.
Diaz brought Sanchez and Angelica to the Alpine house on the Sunday after Thanksgiving, and Ruiz was waiting for them. After Ruiz sucker-punched Sanchez, he directed Diaz and Morales to take Sanchez to one of the bedrooms. Morales dragged Sanchez by his arms. Ruiz, Diaz and Morales beat Sanchez. Morales also tied Angelica's legs and wrists to a railing in a closet. Diaz moved Cohen to Ruiz's bedroom and later kicked her in the head.
Detective Speyrer testified that respect is of utmost importance in the gang culture. Gang members are expected to back up fellow gang members, especially the older ones, to maintain their status within the gang. Not doing so puts them at risk of being beaten up, ostracized, and losing the trust and respect of the gang. Speyrer also testified that a crime which may start between a single gang member and a victim becomes gang related when other gang members later assist in the crime.
Given the facts of these offenses and the expert gang testimony, the jury reasonably could have concluded that Ruiz singled out Cohen, Angelica and Sanchez for punishment because they had grievously insulted him. As crew leader, Ruiz could not allow such an act of disrespect to go unanswered. Ruiz then enlisted the assistance of fellow crew members Diaz and Morales to assist him. As junior members, Diaz and Morales had little choice but to join in Ruiz's crimes against Cohen, Angelica and Sanchez because that is what younger gang members do or risk being beaten up and ostracized. Once Diaz and Sanchez became participants, Ruiz's crimes became gang related. (People v. Hill, supra, 142 Cal.App.4th at p. 774.) The evidence showed that Ruiz (1) intended to torture Cohen, falsely imprison Cohen, Angelica and Sanchez and assault Sanchez; (2) intended to commit these crimes in association with Diaz and Morales; and (3) knew that Diaz and Morales were members of his mixed gang car theft crew and would join in the crimes. Substantial evidence supported the jury's true finding on the gang allegations against Ruiz, including the requisite "specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1), italics added.)
Relying on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, in which the Ninth Circuit followed its earlier decision in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, Ruiz claims there was no substantial evidence the offenses would benefit a gang and were committed with the specific intent to benefit the gang. In Garcia v. Carey, supra, 395 F.3d at page 1103, the Ninth Circuit held there was insufficient evidence to warrant an enhanced sentence under section 186.22, subdivision (b)(1) because there was no evidence "that would support an inference that Garcia robbed [the victim] with the specific intent to facilitate other criminal conduct by the [gang]." We decline to follow Garcia and Briceno and agree instead with those California decisions that reject the Ninth Circuit's interpretation of the statute as contrary to its plain language. (People v. Leon (2008) 161 Cal.App.4th 149, 162; People v. Hill, supra, 142 Cal.App.4th at p. 774; People v. Romero, supra, 140 Cal.App.4th at p. 19.)
Ruiz also argues the true findings on the gang enhancements cannot stand because Ruiz was a member of the Imperial Beach Dukes, and Diaz and Morales were members of the El Cajon Locos. In this case, the membership in two different gangs is not fatal to the enhancement. Detective Bates testified that Ruiz had been closely associated with the El Cajon Locos since the early 1990's and most of his criminal activity was with members of the El Cajon Locos. Detective Speyrer testified that it is not uncommon for gang members to work as a crew in their money-making activities, and sometimes the crews include gang members from different gangs. Speyrer opined that this mixed crew of car thieves was more than a group of drug addicts committing crimes to support their habits because it involved gang members working together at the direction of a more senior gang member and shot caller. Section 186.22, subdivision (f) defines the term "criminal street gang" as 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 [listed offenses], 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."
Ruiz also argues that Speyrer's testimony that Hispanic gang culture disapproves of violence against women belies the notion that these crimes were gang related and committed with the intent to benefit the gang. We are not persuaded. " '[R]eversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding.' " (People v. Gray (1998) 66 Cal.App.4th 973, 984.)
B. Personal Use of Firearm in the False Imprisonment of Angelica
Ruiz contends substantial evidence does not support the jury's true finding that he personally used a firearm (§ 12022.5, subd. (a)) in committing the false imprisonment of Angelica. The contention is without merit.
We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. (People v. Augborne, supra, 104 Cal.App.4th at p. 371.) Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. (People v. Kraft, supra, 23 Cal.4th at p. 1053.)
Section 12022.5, subdivision (a) provides in part: "[A]ny person who personally uses a firearm in the commission of a felony... shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." (Italics added.)
Our Supreme Court has noted the distinction between personal use of a firearm and possession of a firearm:
"By employing the term 'uses' [in section 12022.5] instead of 'while armed' the Legislature requires something more than merely being armed. [Citation.]... Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. 'Use' means, among other things, 'to carry out a purpose or action by means of, ' to 'make instrumental to an end or process, ' and to 'apply to advantage.' [Citation.] The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that 'uses' be broadly construed." (People v. Chambers (1972) 7 Cal.3d 666, 672.)
Accordingly, a showing that the defendant fired a weapon is not required to prove he personally used a firearm during the commission of a felony. (People v. Wilson (2008) 44 Cal.4th 758, 806.)
"Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022. 5[, subdivision] (a)." (People v. Granado (1996) 49 Cal.App.4th 317, 325.)
Viewing the evidence in the light most favorable to the jury finding, during the course of the false imprisonment, Ruiz handed Angelica the revolver and told her to shoot him. When Angelica attempted to do so, she discovered the gun was not loaded, and Ruiz showed her the bullets in his hand and said: "Tricked you." Ruiz reclaimed the revolver. Later, Ruiz told Angelica that he was going to kill Cohen and Sanchez, and Angelica took his threats seriously because of the gun. A rational inference is that Ruiz used the revolver as an aid in falsely imprisoning Angelica because she took his threats to kill her sister and husband seriously. Furthermore, a trier of fact could reasonably conclude that Ruiz's so-called tricking of Angelica by handing her an unloaded gun was intended to intimidate her and show her that he was in total control of her situation.
Ruiz characterizes the unloaded gun incident as "bizarre." However, in a substantial evidence analysis, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (See People v. Jones (1990) 51 Cal.3d 294, 314.) The jury also reasonably could have found that Ruiz tricked Angelica with the unloaded revolver to be cruel and to instill sustained fear in her, thereby evidencing a separate objective from his original intent to falsely imprison her. As such, it warranted additional punishment.
C. CALCRIM No. 1403
Ruiz contends the trial court erred by instructing the jury with CALCRIM No. 1403 because the instruction improperly permitted the jury to use his gang membership and that of his girlfriend as a factor in assessing their credibility. The contention is without merit.
The jury was instructed with CALCRIM No. 1403 as follows:
"You may consider evidence of gang activity only for the limited purpose of deciding whether:
"A defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime and enhancements charged;
"OR
"A defendant had a motive to commit the crimes charged.
"You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his opinion.
"You may not consider this evidence for any other purpose. You may not conclude from this evidence that a defendant is a person of bad character or that he has a disposition to commit crime."
Ruiz's trial counsel did not object to CALCRIM No. 1403 nor request that it be modified. Generally, a failure to object to instructional error forfeits the issue on appeal if the instruction is correct in law and the defendant has failed to request clarification. (People v. Guerra (2006) 37 Cal.4th 1067, 1138.) Nonetheless, we exercise our discretion and reach the substantive merits of Ruiz's assignment of error. (§ 1259 [appellate court may review instruction not objected to below if substantial rights of defendant were affected by instruction].)
Purportedly erroneous instructions are reviewed in the context of the entire charge to determine whether it is reasonably likely the jury misconstrued or misapplied the challenged instruction. (People v. Dunkle (2005) 36 Cal.4th 861, 899-900, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In addition to CALCRIM No. 1403, the jury was instructed on witness credibility pursuant to CALCRIM No. 226 and CALCRIM No. 316. CALCRIM No. 226 told the jury that it should use its common sense and experience when judging the credibility of a witness and that it could consider anything that tends to prove or disprove the truth of the witness's statements, including, inter alia, such factors as whether the witness's testimony was influenced by a bias, the witness's attitude about the case, whether the witness made prior inconsistent statements, and whether the witness had engaged in conduct that reflected on his or her believability. CALCRIM No. 316 told the jury that if it found a witness had a felony conviction or that a witness committed a crime or other misconduct, it could consider that fact only to evaluate the witness's credibility; that neither the felony conviction, nor the crime nor the misconduct necessarily destroys or impairs the witness's credibility; and that the jury should decide what weight to give the evidence.
These instructions do not suggest that jurors should consider gang activity in a vacuum to conclude a witness is not telling the truth merely because he or she engages in gang activity. Rather, these instructions advise the jury to evaluate witness credibility based on a wide variety of factors. (CALCRIM No. 226.) Further, the jury was instructed that misconduct does not necessarily mean a witness is untruthful and it was up to the jury to determine how much weight to give the misconduct evidence. (CALCRIM No. 316.) We presume jurors use intelligence and common sense when applying instructions. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1396.) Given these instructions, a reasonable jury would know it could not automatically equate gang activity with a lack of veracity, but rather it should examine the testimony so as to consider all relevant matters that might affect honesty or dishonesty.
CALCRIM No. 1403 limits the purposes for which gang evidence may be considered by the jury. It precludes the jury from using such evidence to show a defendant's bad character or criminal disposition. As to witness credibility, CALJIC No. 1403 merely informed the jury that gang activity is one factor to consider in evaluating a witness's testimony.
Gang evidence can be relevant on the issue of a witness's credibility. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168.) For example, evidence that a particular witness fears retaliation from a gang for testifying at trial is relevant to the witness's credibility. (People v. Gonzalez (2006) 38 Cal.4th 932, 945-946.) Also, evidence that a witness and defendant belong to the same gang "is relevant to establish the witness's bias." (People v. Bojorquez (2002) 104 Cal.App.4th 335, 342.)
Ruiz complains neither witness intimidation nor witness bias were implicated in this case, and therefore the language of CALCRIM No. 1403 on evaluating the credibility of a witness is too broad. We disagree. The chief prosecution witness, Rachel Cohen, testified differently at trial than at the preliminary hearing on a number of significant points.
"CALCRIM No. 1403, as given here, is neither contrary to law nor misleading. It states in no uncertain terms that gang evidence is not admissible to show that the defendant is a bad person or has a criminal propensity. It allows such evidence to be considered only on the issues germane to the gang enhancement, the motive for the crime and the credibility of witnesses." (People v. Samaniego, supra, 172 Cal.App.4th at p. 1168.)
Even if we assume that the instruction permitted the jury to draw an adverse inference regarding Ruiz's credibility because of his gang association, under the circumstances of this case, the potentially improper inference was harmless because the evidence establishing Ruiz committed the crimes of which he was convicted was overwhelming. It is not reasonably probable that Ruiz would have obtained a more favorable result if the trial court had not instructed the jury that it could consider evidence of gang activity when evaluating a witness's credibility or believability. (People v. Rogers (2006) 39 Cal.4th 826, 875 [instructional error that does not impair a federal constitutional right requires reversal only if it is reasonably probable that a properly instructed jury would have returned a verdict more favorable to the appellant].)
D. Possession of a Firearm by a Felon
Ruiz contends two of his convictions for being a felon in possession of a firearm must be reversed because the crime is a continuing offense and the evidence showed he continuously possessed the same gun. We agree.
Ruiz was charged with three counts of possession of a firearm by a felon (§ 12021, subd. (a)(1): count 7 on or between November 24 and November 27, 2006; count 11 on or about December 2, 2006; and count 17 on or about December 6, 2006). All three counts alleged the same firearm─a revolver.
Count 7 coincided with the weekend after Thanksgiving when Cohen, and later Angelica and Sanchez, were confined against their will at the Alpine house. Cohen testified she saw a revolver on the night stand in Ruiz's bedroom Count 11 involved the observation by Tanya Darby of a revolver falling from Ruiz's waistband as he loaded items into the Dodge Caliber. Count 17 stemmed from Ruiz's possession on the day he was arrested when the sheriff's deputies observed a revolver close to him. Ruiz admitted this revolver was his and that it was the same gun that was in his possession the weekend after Thanksgiving.
A continuing offense is not terminated by a single act or circumstance, but instead endures for as long as the proscribed conduct continues. (Wright v. Superior Court (1997) 15 Cal.4th 521, 525.) A continuing offense constitutes a single violation and may not be arbitrarily divided into separate time intervals and charged as multiple violations. (People v. Keehley (1987) 193 Cal.App.3d 1381, 1385; People v. Gregori (1983) 144 Cal.App.3d 353, 357.) Determining whether a crime is a continuing offense is primarily a question of statutory interpretation. (Wright v. Superior Court, supra, at p. 526.) It also is important to consider whether the nature of the crime is such that the Legislature " 'must assuredly have intended that it be treated as a continuing one.' " (Ibid.) Doubts should be resolved against a construction " 'subjecting an offender to multiple convictions by reason of a single unified pattern of behavior even though the behavior continues over a period of time.' " (People v. Keehley, supra, at p. 1385.)
Section 12021, subdivision (a)(1) provides, in pertinent part: "Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country... who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." The statutory language does not suggest an intent to treat each day of prohibited firearm possession as a new offense. Possession of any property is not a discrete event, but an ongoing condition. Courts have held other crimes based on possession to be continuing offenses. (See, e.g., People v. Bland (1995) 10 Cal.4th 991, 999 [possession of a controlled substance]; People v. Keehley, supra, 193 Cal.App.3d at p. 1385 [unauthorized possession of food stamps].) We conclude that a felon's possession of a firearm is an offense that continues throughout his or her uninterrupted possession of the same weapon. Continuous possession of the same firearm supports just a single conviction.
The evidence showed Ruiz possessed the same gun on the weekend after Thanksgiving, on December 2 and on December 6. The prosecution conceded the same gun was involved in all three counts.
Given the continuing nature of the offense and the evidence that it was the same gun on all three occasions, the prosecution, in charging three counts of section 12021, bore the burden of proving, beyond a reasonable doubt, that Ruiz's possession of the gun was interrupted by some period, however brief, of nonpossession. No evidence showed any interruption. Under the circumstances, Ruiz could not be convicted of separate counts of possession of a firearm by a felon for the weekend after Thanksgiving, December 2 and December 26. The convictions on counts 7 and 11 are reversed.
At sentencing, the prosecution conceded Ruiz's three convictions of being a felon in possession of a firearm was a continuous offense and suggested under section 654 the sentences for counts 7 and 11 should be stayed. The trial court sentenced Ruiz to a consecutive prison term of eight months for count 17 (one-third of the middle base term of two years. The court stayed imposition of the upper term of three years for count 7 and for count 11. The court further stated that if section 654 were to be found inapplicable that it "should be understood that the court would exercise its discretion to impose a three-year sentence on count 7 and a three-year sentence on count 11 concurrent to the determinate sentences otherwise imposed and being ordered served."
E. Enhancement for Being Armed During Vehicle Code Section 10851 Count
Ruiz contends his enhancement for being armed (§ 12022, subd. (a)(1)) in connection with his conviction for unlawfully driving or taking a vehicle─the dark blue 1990 Honda Accord─should be stayed pursuant to section 654. The contention is without merit.
Ruiz was driving this vehicle on December 2, 2006, when members of the Darby family followed him from the Alpine house onto Interstate 8. The vehicle had been stolen earlier that day. Since the section 12022, subdivision (a)(1) enhancement involved the same revolver that was at issue in the possession of a firearm by a felon counts, Ruiz claims section 654's prohibition against double punishment precludes imposition of the arming enhancement attached to the unlawfully driving and taking a vehicle count.
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 bars double punishment for multiple offenses that constitute one indivisible transaction. (People v. Hicks (1993) 6 Cal.4th 784, 789.) The purpose behind this provision is to ensure that punishment will be commensurate with culpability. (People v. Trotter (1992) 7 Cal.App.4th 363, 367.) However, a defendant may be separately punished for offenses that share common acts and are part of an indivisible course of conduct where the defendant entertained multiple criminal objectives. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) Whether a course of conduct is indivisible depends on the defendant's intent and objective rather than the temporal proximity of the offenses. (People v. Hicks, supra, at p. 789; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In a section 654 analysis, the defendant's intent and objective are factual questions to be determined by the trial court. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.) We will affirm the court's findings if there is any substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We review the trial court's findings " ' "in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence." ' " (Id. at pp. 1312-1313; People v. Green, supra, at p. 1085.)
Whether a violation of section 12021─possession of a firearm by a felon─constitutes a transaction divisible from the offense in which the defendant uses the firearm depends on the facts and evidence of each individual case. (People v. Bradford (1976) 17 Cal.3d 8, 22.) Multiple punishment is improper where the evidence shows "at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) Alternatively, multiple punishment is proper "when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm." (People v. Jones, supra, 103 Cal.App.4th at p. 1145.)
The record contains substantial evidence from which the trial court reasonably could have concluded that at the time Ruiz was driving the dark blue Honda Accord and was being followed by the Darbys he had a discrete and separate criminal objective other than mere possession of the revolver. Ruiz displayed the revolver as the Darby vehicle neared the Honda Accord. A reasonable inference is that by exhibiting the revolver, Ruiz was discouraging the Darbys from meddling in his affairs and from impeding his continuing possession of the stolen car by reporting him to law enforcement. We realize the jury acquitted Ruiz of brandishing a firearm at a person in a motor vehicle, but the jury's verdict may very well have been affected by Tanya Darby using a false name when she called 911 to report the crime.
Moreover, as the Court of Appeal in People v. Jones, supra, 103 Cal.App.4th at page 1148, pointed out:
"Section 12021 uniquely targets the threat posed by felons who possess firearms. [Citation.] We see no reason why a felon who chooses to arm himself or herself in violation of section 12021 should escape punishment for that offense because he or she uses the firearm to commit a second offense. A felon who, for example, uses a gun to commit a burglary is more culpable than a felon who commits the same burglary without a gun, or than a felon who arms himself but does not commit any additional crimes."
Likewise, here, Ruiz, a felon who was personally armed with a firearm while violating Vehicle Code section 10851, is more culpable than (1) a felon who is simply in possession of a gun, but does not unlawfully drive another individual's vehicle; and (2) an unarmed felon who unlawfully drives another's person's vehicle. Therefore, punishment both for being a felon in possession of a firearm and for being personally armed during Ruiz's unlawful driving offense is commensurate with his culpability and furthers the legislative goal of discouraging firearm possession by felons.
Imposition of the section 12022, subdivision (a)(1) enhancement did not violate section 654.
The parties disagree whether section 654 applies to enhancements in general, with the Attorney General arguing it does not and Ruiz arguing it does. Our Supreme Court has not squarely taken on this issue (see, e.g., People v. Palacios (2007) 41 Cal.4th 720; People v. Rodriguez (2009) 47 Cal.4th 501), and it is unnecessary for us to weigh in on the issue in this case.
F. False Imprisonment of and Assault on Sanchez
Ruiz contends that because the false imprisonment and beating of Sanchez were part of an indivisible course of conduct his sentence on the felony assault count should have been stayed pursuant to section 654. The contention is without merit.
The trial court has broad discretion in determining the factual issue of whether a defendant has multiple objectives for purposes of section 654, and on appeal we will uphold the court's express or implied finding that a defendant held multiple criminal objectives if it is supported by the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730; People v. Beamon (1973) 8 Cal.3d 625, 636-639.)
If the evidence discloses the defendant's acts were independent and divisible, then "he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted.) Further, because the purpose of section 654's prohibition against multiple punishment is to ensure that punishment is commensurate with culpability, courts have recognized that an offense committed to achieve another offense may "at some point... become so extreme [that it] can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission of the original crime." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; see also People v. Nubla (1999) 74 Cal.App.4th 719, 730-731 [multiple acts of violence against victim support multiple punishment]; People v. Saffle (1992) 4 Cal.App.4th 434, 439-440 [sex offense followed by terror-inflicting false imprisonment warrants multiple punishment].)
Viewing the evidence in the light most favorable to the court's sentencing choice, we find there was substantial evidence that Ruiz entertained different intents and objectives when he assaulted Sanchez, which were separate from and not merely incidental to the false imprisonment of Sanchez. Ruiz's sucker punch and kicking of Sanchez in the head shortly after Sanchez arrived at the Alpine went "far beyond [the conduct] reasonably necessary to accomplish the original offense" of false imprisonment. (People v. Nguyen, supra, 204 Cal.App.3d at p. 191.)
II. DIAZ'S APPEAL
A. Torture Count
Diaz contends the evidence was insufficient to support his conviction of torture. The contention is without merit.
Section 206 provides: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain."
Diaz was prosecuted for torture under an aiding and abetting theory. One who aids and abets a crime is considered a principal in the crime and is guilty to the same extent as any other principal, including the actual perpetrator. (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) In order to sustain a conviction for aiding and abetting, the prosecution must prove the defendant (1) acted with the knowledge of the criminal purpose of the perpetrator, (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and (3) by act or advice aided, promoted, encouraged or instigated the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 560.) Under the natural and probable consequences doctrine, an aider and abettor is liable not only for the crime originally aided and abetted, but also for any other crime which is committed that is a natural and probable consequence of the target crime. (People v. Prettyman, supra, at pp. 260-262.) Thus, to predicate liability on the natural and probable consequences doctrine, the prosecution must prove, in addition to the above elements, that (4) a crime other than the target offense was committed and (5) the crime ultimately committed was a natural and probable consequence of the crime the defendant aided and abetted. (Id. at p. 262.)
"Whether a person has aided and abetted in the commission of a crime is a question of fact, and on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment." (In re Juan G. (2003) 112 Cal.App.4th 1, 5, fn. omitted.)
The beginning of Diaz's involvement in the crimes against Cohen was when Ruiz showed him a blindfolded Cohen locked in the closet. The sight startled Diaz. Nonetheless, Diaz, having learned that Ruiz was infuriated with Cohen for saying Ruiz had slept with his cousin, beat and kicked Cohen in concert with Ruiz and Morales. Later, Diaz kicked Cohen in the head. The jury reasonably could have found Diaz demonstrated his intent to help Ruiz in torturing Cohen. That the assault was likely to result in torture was apparent from the brutality of the assault, the fact that the victim was so overwhelmingly outnumbered, and Ruiz's obvious desire for revenge because of his perceived insult.
Although Diaz appears to argue no evidence demonstrated he intended to torture Cohen, we note that no such intent on his part was necessary under an aiding and abetting theory.
B. Torture Instruction
Diaz contends the trial court erred by modifying the standard jury instruction on torture and misdirecting the jury on aider and abettor liability. The contention is without merit.
The jury was instructed pursuant to CALCRIM No. 810, as follows:
"The defendants are charged in Count 1 with torture of RACHEL COHEN. [¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant inflicted great bodily injury on someone else; [¶] AND [¶] 2. When inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge or for any sadistic purpose.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
At issue is the following language, which was added at the prosecutor's request, immediately following the above-quoted CALCRIM No. 810:
"An aider or abettor of the crime of torture does not have to have personally inflicted great bodily injury upon the victim, so long as you find beyond a reasonable doubt that at least one principal in the commission of the crime did personally inflict great bodily injury and that, when inflicting the injury, said principal intended to cause cruel or extreme pain and suffering for the purpose of revenge or for any sadistic purpose...."
Diaz complains that this supplement to CALCRIM No. 810 "removed from the jury's consideration crucial elements of the offense." Diaz points out this instruction as given does not mention that "an aider and abettor must know of the perpetrator's intent to torture, specifically intend to aid in the torture, and did in fact aid the perpetrator in the commission of the torture."
However, the jury was also instructed under CALCRIM No. 400 as follows:
"A person may be guilty of a crime in two ways:
"1. he may have directed committed the crime; OR
"2. he may have aided and abetted another person who committed the crime. In these instructions, I will call that other person the 'perpetrator.' A person is equally guilty of the crime whether he committed it personally, or whether he aided and abetted the perpetrator who committed it." and under CALCRIM No. 401 as follows:
"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
"1. The perpetrator committed the crime:
"2. The defendant knew that the perpetrator intended to commit the crime;
"3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
"AND
"4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.
"If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider or abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider and abettor."
In reviewing a challenge to a given instruction we consider the instruction in the context of the entire charge to the jury, not in isolation. (People v. Johnson (1992) 3 Cal.4th 1183, 1250.) Shortly after the court gave CALCRIM No. 400 and CALCRIM No. 401, it moved on to the instructions on the specific charges, with the instruction on torture being first. CALCRIM No. 401 correctly states the law on aider and abettor liability and instructs the jury that an aider and abettor must know of the perpetrator's intent to commit the crime, specifically intend to aid in committing the offense, and did in fact aid the perpetrator in the commission of the crime. On appeal, we presume jurors are intelligent people capable of understanding, correlating, and following the instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.)
C. Gang Enhancements
Diaz contends there was no substantial evidence to support the jury's findings that in committing the torture of Cohen and the felony false imprisonments of Cohen and Angelica he acted "for the benefit of, at the direction of, in association with" a criminal street gang, as required by section 186.22, subdivision (b). We disagree.
Viewing the evidence in the light most favorable to the jury finding, we conclude there was substantial evidence that Diaz participated in the torture and false imprisonment of Cohen and the false imprisonment of Angelica in association with a criminal street gang. Diaz, as well as Morales, were members of a mixed gang car theft crew, which was led by Ruiz. Junior members of a gang are expected to back up fellow gang members, especially senior members, to maintain their status with the gang. Failure to do so puts a junior member at risk of being beaten up, ostracized and losing the trust and respect of the gang. Ruiz solicited Diaz and Morales to join him in torturing Cohen when he demanded Cohen to "[t]ell my two homies what kind of sick fuck you think I am." Riuz's crimes against Cohen and Angelica became gang related when Diaz and Morales decided to back up Ruiz. (People v. Hill, supra, 142 Cal.App.4th at p. 774.)
Diaz argues the violent crimes against the two women were not gang related but rather "a reaction to a personal problem Ruiz had with Rachel, " which was "irrational" and "fueled by the daily ingestion of methamphetamine." In support, Diaz points to Detective Speyrer's testimony that Hispanic gang culture frowns upon violence against women, especially rape. However, Speyrer also testified that respect is very important in gang culture. Speyrer opined the torture and false imprisonment crimes were gang related, but the rape charge was not. The jury was free to accept Speyrer's expert opinion. As a reviewing court, we do not reweigh the evidence.
For the first time in his reply brief, Diaz claims there was not substantial evidence he had the requisite specific intent to promote, further or assist in the criminal gang conduct, and suggests that expert gang testimony by itself is not sufficient for a gang enhancement finding. "Normally, a contention may not be raised for the first time in a reply brief." (People v. Peevy (1998) 17 Cal.4th 1184, 1206.) By waiting until his reply brief to raise arguments, Diaz has forfeited the issues. (People v. Bonilla (2007) 41 Cal.4th 313, 349-350.) In any event, Diaz's claims fail on their merits.
Section 186.22, subdivision (b)(1) does not require a showing of intent to promote the gang's activities beyond the crimes charged. (People v. Hill, supra, 142 Cal.App.4th at p. 774.) By participating in the torture of Cohen and the false imprisonment of her and Angelica following Ruiz's solicitation, Diaz displayed the requisite specific intent to " 'to promote, further or assist in "any criminal conduct by gang members." ' " (Ibid.) Here, there was substantial evidence Diaz (1) intended to commit the torture and false imprisonments, (2) intended to commit these crimes in association with Ruiz and Morales, and (3) knew Ruiz and Morales were members of his mixed gang crew.
Diaz points to a number of cases that have reversed jury findings on gang enhancements where the expert's opinion provided the only substantial evidence to support the enhancement. These cases are not applicable here. People v. Albarran (2007) 149 Cal.App.4th 214 was not a case dealing with the sufficiency of the evidence to support a gang enhancement, as does this case. The issue in Albarran was whether gang evidence should have been introduced by the prosecution to show motive and intent for the charged offenses. (Id. at pp. 226-227.)
In re Frank S. (2006) 141 Cal.App.4th 1192 is distinguishable from this case. The minor in Frank S., who once listed himself as an affiliate of a gang, was arrested when he was bicycling alone, with a small bindle of methamphetamine, a concealed knife and a red bandana, and gave the officer a false name. (Id. at p. 1195.) The expert opined that the minor was an active gang member and his possession of a dirk or dagger benefitted a gang. (Ibid.) The expert also opined the minor possessed the knife to protect himself, which is what a gang member would do, as well as to use it to attack rival gang members, both of which benefitted his gang. (Id. at pp. 1195-1196.) The appellate court concluded that "nothing besides weak inferences and hypotheticals show the minor had a gang-related purpose for the knife. [¶]... [T]he prosecut[or] presented no evidence other than the expert's opinion regarding gangs in general and the expert's improper opinion on the ultimate issue.... The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Id. at p. 1199.) Here, in addition to the testimony of the two experts, there was evidence about the mixed gang auto theft crew, Ruiz showing the torture victim to his "homies, " and the intercepted jail letters that were filled with gang references.
Diaz's reliance on People v. Killebrew (2002) 103 Cal.App.4th 644 is also misplaced. Killebrew involved a conspiracy to possess a handgun among gang members who were traveling in three cars. There was conflicting testimony whether the defendant was in one of three vehicles at issue. A gang expert offered admissible testimony about gang culture and psychology, but also testified about the subjective knowledge and intent of each individual in the cars and said that when one gang member in a car possesses a gun, every other gang member in the car knows about it and constructively possesses it. Further, the expert testified the occupants of one of the cars, to which no gun was ever linked, would know of the guns in the other two vehicles and would mutually possess those guns. (Killebrew, supra, 103 Cal.App.4th at p. 652 & fn. 7.) The Court of Appeal held the expert's testimony about a specific defendant's subjective knowledge and intent was not the type of "culture and habit testimony" admissible in gang enhancement cases. (Id. at p. 654.)
"Moreover, this topic is not one for which expert testimony is necessary. Testimony that a gang would expect retaliation as a result of a shooting such as occurred [in this case], that gangs would travel in large groups if expecting trouble, that in a confrontation more than one gang member may share a gun in some identified circumstances, and that oftentimes gang members traveling together may know if one of their group is armed, would have been admissible. Beyond that, [the expert] simply informed the jury of his belief of the suspects' knowledge and intent on the night in question, issues properly reserved to the trier of fact. [The expert's] beliefs were irrelevant. [¶]... [¶] Since the erroneously admitted testimony provided the only evidence to support the conspiracy theory, reversal of the judgment is required." (Killebrew, supra, 103 Cal.App.4th at pp. 658-659.)
Our Supreme Court has read Killebrew as "merely 'prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.' " (People v. Gonzalez (2006) 38 Cal.4th 932, 946.)
Finally, Diaz refers to People v. Ferraez (2003) 112 Cal.App.4th 925. In Ferraez, the Court of Appeal held the trial court properly allowed the gang expert to opine that drugs in defendant's possession were intended to be sold for the benefit of or in association with the gang and that proceeds would be used to benefit the gang. (Id. at pp. 928, 930-931.) However, Diaz points to the appellate court's observation: "the expert's testimony alone would not have been sufficient to find the... offense was gang related." (Id. at p. 931.) We read this observation to be applicable to that case─not as a rule of law. Moreover, as pointed out above, the testimony by the two experts in this case was not the only gang evidence presented to the jury.
D. Evading an Officer with Reckless Driving Count and Unlawful Taking and Driving a Vehicle Count
Diaz contends that, because the evading an officer with reckless driving count and the unlawful taking and driving of the white 2000 Honda Civic count were part of an indivisible course of conduct, his sentence on the evasion count should have been stayed pursuant to section 654. The contention is without merit.
" 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.' " (People v. Latimer (1993) 5 Cal.4th 1203, 1208, italics omitted.) The trial court decides if the acts of which a defendant has been convicted constitute an indivisible course of conduct based on the defendant's intent and objective in committing the acts. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) The trial court's " 'determination will not be reversed on appeal unless unsupported by the evidence presented at trial.' " (Ibid.)
" 'The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant's driving or taking of a vehicle belonging to another person, without the owner's consent, and with specific intent to permanently or temporarily deprive the owner of title or possession.' " (People v. Green (1995) 34 Cal.App.4th 165, 180.) "Vehicle Code section 2800.2 prohibits fleeing or attempting to elude 'a pursuing peace officer in violation of Section 2800.1' where the pursued vehicle is driven recklessly. (Veh. Code, § 2800.2, subd. (a).) Section 2800.2 thus incorporates Vehicle Code section 2800.1, subdivision (a), which provides: '(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor....' " (People v. Mathews (1998) 64 Cal.App.4th 485, 488.)
The white 2000 Honda Civic was reported stolen on December 16. Diaz's evasion with reckless driving occurred shortly after 1:00 a.m. on December 18 when officer Warren noticed suspicious activity at a gas station. Even if the evidence presented at trial did not show that Diaz took the stolen Honda Civic, he was driving it─and he was doing this before Warren attempted to stop him. Therefore, Diaz had committed the unlawful driving of a vehicle before he began to commit the offense of felony evading. Moreover, the evidence supported a reasonable inference that at the time Warren observed Diaz and attempted to make a traffic stop, Diaz's objective had changed from depriving the rightful owner possession of the Honda Accord and he had formed a new and separate intent to evade the pursuing officers. Therefore, there was evidence to support the court's conclusion that the crimes of unlawful driving and reckless evasion were independent of each other.
DISPOSITION
As to Ruiz, the judgment is reversed as to counts 7 and 11. The trial court is directed to amend the abstract of judgment accordingly and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment against Ruiz is affirmed.
As to Diaz, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.