Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. LBF13635A, Carol Ash, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Camilo Tapia, Jr., appeals from convictions for assault, vandalism, and participating in a criminal street gang. He contends that the trial court erred in denying his motion for a mistrial because of alleged juror misconduct. He also contends that the trial court erred in not excluding some of the trial testimony of a gang expert. For the following reasons, we affirm.
STATEMENT OF THE CASE
On August 21, 2008, the Merced County District Attorney filed an information charging appellant with, in count one, assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); in count two, participating in a criminal street gang (§ 186.22, subd. (a)); and in count three, misdemeanor vandalism, with damage of less than $400 (§ 594, subd. (b)(2)(A)). It also was specially alleged that the appellant committed the offenses in counts one and three for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)).
All further section citations are to the Penal Code, unless otherwise stated.
Following a jury trial, on November 19, 2008, the jury found appellant guilty on all counts and found the special allegation true.
On February 27, 2009, the trial court denied appellant’s motion for a new trial because of alleged juror misconduct.
On March 13, 2009, the trial court sentenced appellant to an aggregate term of six years and eight months in prison, calculated as follows: the mid-term of three years on count one, plus three years for the gang enhancement, the mid-term of two years on count two, to be served concurrently with count one; and eight months on count three. On that same date, appellant filed a notice of appeal.
On February 24, 2010, the trial court amended the abstract of judgment to reflect that appellant was entitled to 564 days credit.
FACTS
A. Vandalism
On June 1, 2008, 16-year old Delia Pimentel was spending the day at a house in the city of South Dos Palos owned by her aunt, Erminia Echavarria (the Echavarria house). Pimentel was not a gang member, but her former boyfriend, Marciel, had been in a Norteno gang called “DPG.”
Pimentel was watching television in the living room when she saw, through the open front door, approximately eight males approaching the porch. She heard the males talking loudly and calling her names, such as “bitch” and “ho,” among other things. When she walked to the door, she saw one of the males, whom she knew as Victor Ramirez, walk onto the porch. He told Pimentel that he was looking for Marciel. Pimentel informed Ramirez that Marciel did not live there. Although she did not tell Victor, Marciel had been at the Echavarria house that night but had left about 30 minutes earlier. During this time, the others in the group continued to yell profanity at her and “then they threw stuff” at her and the house.
Pimentel recognized appellant and his brother as being part of the group. She was familiar with appellant and his brother because she had seen them around the neighborhood. Pimentel saw appellant throw a beer can at the front window and yell out, “Sur Trece,” while a guy with the nickname “Peacock” threw a beer can at Pimentel, hitting the door. Pimentel was aware that Peacock, later identified as Jose Salvador Ramirez, was a member of the TST gang. She identified appellant as being bald and wearing a white t-shirt, black glasses, and pants that were rolled up with white high socks underneath.
When Pimentel announced that she was going to call the police, several persons in the group again yelled at her and called her names. The group then ran off. Echavarria paid $300 to repair the window that was broken by appellant.
Appellant was later arrested by the police for an assault. During the subsequent interview with Merced County Deputy Sheriff Mike Ruiz, appellant claimed that a man named Downer threw a rock at the window of the Echavarria house. He told the deputy that he thought a guy named Daniel lived at the Echavarria house. According to appellant, Daniel used to be a Sureno, but he was now a Norteno.
After Deputy Ruiz finished interviewing appellant, Deputy Ruiz went to the Echavarria house and spoke with Pimentel. The following day, Deputy Ruiz showed Pimentel a photo lineup. She identified a photograph of appellant and indicated that he had thrown the beer can at the window.
Appellant testified on his own behalf at trial. His defense was primarily based on misidentification. Appellant admitted that he had been to the Echavarria residence on prior occasions when Pimentel was there. According to appellant, on June 1, 2008, he and several other males, including Victor and Downer, had driven from his niece’s birthday party to Chics Market and then walked until they came to the house where a guy named Daniel lived, which turned out to be the Echavarria house. Appellant saw Victor approach the house, while appellant waited on the road next to Downer. Appellant then saw a rock get thrown at one of the windows. The rock left a big hole in the window, but the window was not shattered. Everyone then ran away towards Lexington Avenue, with Downer in the lead.
B. Assault
On the evening of June 1, 2008, 16-year-old Herman Ortiz and his friends Ismael Escalante and Jacob Salazar were walking on Lexington Avenue to Chics Market when they saw five guys who appeared to be picking up rocks. The group started to walk towards Ortiz and Escalante at a fast pace. Two males in the group, one of whom Ortiz later identified as appellant, yelled out “TST territory” and “Sur Trece” at Ortiz, Salazar, and Escalante.
Escalante, who was wearing a red shirt, indicated that a guy wearing a blue LA Dodger cap then came up to him and asked him what gang he was in. Appellant and the other guys in the group approached Escalante from behind. Escalante said, “I don’t claim.” As Escalante was complying with an order to take off his red shirt, appellant asked Escalante why he was wearing a red shirt. Escalante noticed that appellant had a “1” and “3” tattooed on the inner part of his shoulders.
When the individual wearing the blue cap grabbed Escalante’s red shirt, Escalante testified that appellant threw a rock at Escalante and hit him in his right bicep. Escalante swung his arm and hit the male wearing the blue baseball cap, causing him to fall backwards. Appellant and another individual then approached Escalante from the left, while another guy flung a rock towards Escalante, hitting him squarely between his shoulders. The blows from the rocks resulted in marks and bruises on Escalante’s body. The assault ended when Escalante heard somebody yell out, “roller,” which is code for a law enforcement vehicle in the area. The group then became aware that Deputy Ruiz was nearby on Lexington, and the males ran off in different directions.
Appellant took the stand and testified on his own behalf. He mainly blamed Downer for the vandalism and assault incidents. According to appellant, on June 1, 2008, he was at his niece’s birthday party. Over the course of three hours at the party, appellant consumed a six-pack of beer. A “mad and disappointed” guy, who appellant had told Deputy Ruiz was Downer, then drove up in a green car and asked appellant and others sitting near the bounce house if they wanted to go retaliate against someone who had thrown rocks at his car. Appellant got into the car with some other males, and Victor drove them east onto Lexington and parked in the back of the alley near the Chics Market store. Appellant denied that his brother was part of the group of males.
The group then got out of the car and walked until they eventually came to the Echavarria house. Appellant saw Victor approach the house, while appellant waited on the road next to Downer. Appellant told Deputy Ruiz that Downer threw a rock at one of the windows. The rock left a big hole in the window, but the window was not shattered. Everyone then ran towards Lexington, with Downer in the lead. Victor broke off from the group and went towards his car. After Victor left, five persons remained in the group.
After the group got to Lexington, appellant saw Downer break off from the group and confront a guy on the street who was wearing a red shirt. The person in the red shirt was with two other young men. Downer twice asked the person wearing the red shirt if he “banged.” The male wearing the red shirt replied, “No, I don’t bang.” Downer asked the person to remove his shirt, and then threw two rocks at the guy while he was removing his shirt. The guy punched Downer, and the two started to fight. Appellant approached in an effort to get Downer to leave the guy alone. However, for his efforts, he fell down to the ground. He stated, “I don’t know if it was Jonathan or Ismael, the one that fell with me to the ground.” After this, appellant heard someone yell out “rollers.” Appellant then got up and started running.
Appellant testified that, on that night, he was wearing blue jeans, black Nikes, and a white t-shirt. He denied that he was wearing long white athletic socks, but claimed that he was wearing ankle socks. Appellant claimed that Downer was wearing a blue shirt and a blue cap. By the time the rock throwing incident took place, however, Downer had taken off his blue shirt and was wearing only a white tank top, a blue cap, and some pants.
Appellant noted that Downer has a “3” tattooed on his left shoulder and a “1” tattooed on his right shoulder. Lopez also had three dots under his left eye and “TST” on his stomach. Although appellant admitted that he had gang-related tattoos of “1” and “3” on his chest, he testified that he also had other non-gang related tattoos. He later had the tattoos of three dots on his hand tattooed over with tattoos of musical notes. He stated that he did this after he decided to leave the gang life for his family.
C. Gang Expert Testimony
Deputy Sheriff John Mathis of the Merced County Sheriff’s Office, an expert on criminal street gangs, testified about the culture and habits of criminal street gangs. He explained that the Mexican Mafia is a large Hispanic prison gang from Southern California, which has the number 13, representing the letter M, for its symbol. Deputy Mathis noted that Nuestra Familia is a rival Hispanic prison gang, which uses the number 14 as its symbol for N, the fourteenth letter in the alphabet.
Deputy Mathis was very familiar with Norteno gang members, who align themselves with Nuestra Familia, as well as Sureno gang members, who align themselves with the Mexican Mafia, as a result of working as a school resources officer at two different high schools and patrolling Merced County as a patrol deputy. In addition, he had substantial contact with both Norteno and Sureno gang members in his current assignment as a gang detective.
Deputy Mathis indicated that in his experience investigating over 100 gang crimes, he has come across situations where gang members attempt to leave the gang, and then are subjected to repercussions and violence from persons within the gang. He explained that, in order to join a gang, one had to “put in work” by committing crimes for the gang or committing assaults on rival gang members. Depending on how much work the individual puts in, the gang accepts the person by either “jumping” him in or voting him into the gang. Deputy Mathis noted that once you are in the gang, “respect is everything.” A gang member may not tolerate disrespect from anyone, including fellow gang members, the general public, or rival gangs.
The deputy also testified that a gang member has a high regard for his reputation, and the gang member builds his reputation by committing violent crimes. He testified that Sureno gang members have a philosophy that if they do their “work” and get respect, when a particular gang member goes to jail or prison, that person will be taken care of by other members of the gang. Deputy Mathis explained that neighborhood gangs often pay “taxes” to the Mexican Mafia so that their members will be taken care of while in prison.
The deputy indicated that TST, which stands for Territorial Sur Trece, is one of many gangs in Merced that are under the umbrella of the Sureno gang philosophy. He noted that there are several Norteno gangs or subsets in Merced, including Loughborough Locs, Nortenos For Life and Vario Planet X. He explained that the gang subsets are territorial, and the TST Sureno gang claims territory on the west side of the country, including Los Banos and Dos Palos area. The expert noted that Nortenos in Merced often wear their hair longer, while Surenos commonly shave their head. Gang members identify themselves to members of a rival gang by their clothes, hand signs, or words they might yell out during an encounter.
Deputy Mathis indicated that Nortenos wear red, and Surenos wear blue. Nortenos use the word “scrap” as an insult to Surenos and Surenos use the word “buster” to disrespect a Norteno. If a person wears a rival color, such as red, in Sureno territory, the Surenos will view that as disrespectful, and the act might well trigger a violent assault. Deputy Mathis observed that if a Sureno was with other gang members and did not assault the person wearing the rival color, that individual Sureno would be in trouble with his own gang for not engaging in violence against the person disrespecting the Sureno gang. Deputy Mathis also noted that common tattoos among Surenos include “1” and “3,” three dots, the number 3 by itself, and the word “Sur,” while Nortenos would have tattoos of 14, 4, four dots and the north star.
Deputy Mathis also testified that the Sureno gang was a criminal street gang. He indicated that the primary activities of Sureno gang members include graffiti, vandalism, assaults, homicides, stealing cars, drug sales, grand theft, attempted murder, carrying concealed weapons, narcotic sales, and criminal threats. The prosecutor also used Deputy Mathis to establish the predicate offenses of the Sureno street gang. Deputy Mathis stated that he was personally familiar with Jesus Osegueda, a self-admitted Sureno gang member, with several gang tattoos. The trial court admitted an abstract of judgment reflecting Osegueda’s conviction for possession of a controlled substance. The deputy was also acquainted with Ismael Lizarraga, another self-admitted Sureno gang member. The trial court admitted an abstract of judgment reflecting Lizarraga’s conviction for assault with a deadly weapon. The trial court also admitted Sureno gang member David Hampton’s conviction for grand theft, Sureno gang member Eric Ramirez’s convictions for assault with force likely to cause great bodily injury and carrying a concealed weapon, Sureno gang member Aldo Lopez’s conviction for assault with a deadly weapon, and Sureno gang member Aldo Espinoza’s conviction for attempted murder.
In Deputy Mathis’s opinion, appellant is an active Sureno gang member. The deputy noted that, in several jail reports, appellant admitted that he was a Sureno and a member of a Salinas Sureno gang. The three tattooed dots on appellant’s hand and number 13 on his chest also confirmed his gang membership. Deputy Mathis observed that a more recent photograph of appellant’s hands indicated that he had covered up the three dots with tattoos of musical notes. However, a treble clef sign in the form of an “S” was significant to Deputy Mathis as indicating appellant was still showing his loyalty to the Sureno gang. Deputy Mathis further noted that appellant’s last name, which was tattooed in Old English lettering on his back, was also the type of tattoo typically used by Surenos.
Deputy Mathis also noted that, on May 8, 2007, appellant informed Deputy Thomas that he used to be a Sureno, but he had quit “claiming” the gang, which meant that he was saying that he was no longer “looking out for the benefit of his gang.” However, appellant advised Deputy Thomas that he still associated with Sureno gang members on a regular basis and appellant had gang-related tattoos. Deputy Mathis expressed his opinion that appellant had said that he quit claiming to try to deceive law enforcement about his gang membership.
Deputy Mathis noted that a couple of months prior to that encounter, on March 18, 2007, Deputy Landrum contacted appellant. Appellant was wearing a blue shirt and blue jeans. He admitted to Deputy Landrum that he was an East Lower Drive gang member and a Sureno gang member out of Salinas. Appellant also admitted his gang membership to Correctional Officer Kidd on February 15, 2006.
Deputy Mathis confirmed that both of the crimes in this case occurred on Sureno gang territory. Deputy Mathis opined, based upon a hypothetical question, that the vandalism by appellant and his cohorts at the Echavarria house was committed for the benefit of the Sureno gang and to promote criminal gang activity because appellant, an admitted Sureno gang member, and others, who also claimed the gang, went together to confront a rival gang member. Appellant’s throwing of the beer can in an attempt to hit Pimentel and the breaking of the windows as his cohorts yelled, “Sur Trece,” conveyed a warning that persons who were not Surenos had better not mess with the Sureno gang. The act was done to intimidate those not in the gang and to enhance the gang’s reputation for being ruthless and violent.
Similarly, Deputy Mathis opined that the group assault on Escalante, who had been wearing a red shirt, was committed at the direction of, in association with, and for the benefit of the Sureno street gang. The deputy noted that such a group assault on an individual who was disrespecting the gang by wearing a rival gang color, was exactly in line with the Sureno code of behavior. He observed that the group called Escalante “buster,” a derogatory term for a Norteno. They then confronted and violently assaulted him “out of respect for their gang.”
DISCUSSION
A. Whether Gang Expert’s Testimony Speculated About Appellant’s Intent
Appellant first contends that the trial court prejudicially erred by permitting the prosecution’s gang expert to opine that: 1) all Surenos in a Sureno group will attack someone in red in Sureno territory and that no Sureno would try to protect the person in red; 2) appellant was lying when he said that he quit claiming membership as a Sureno; and 3) the crimes were committed with specific intent to promote criminal gang activity. According to appellant, the gang expert’s opinions were speculations about appellant’s mental state, and, thus, the opinions exceed the bounds of admissible expert testimony. We disagree.
As an initial matter, we conclude that, by failing to raise a timely objection during trial, appellant has forfeited his objections to Deputy Mathis’s testimony about the behavior of Surenos when confronting someone wearing a red shirt in Sureno territory and to Deputy Mathis’s opinion that appellant was still a Sureno even though he had told an officer that he had quit claiming. (People v. Clark (1992) 3 Cal.4th 41, 125-126.)
Appellant contends that, if the failure to raise a timely objection resulted in forfeiture of his claims in this case, he was denied effective assistance of counsel. However, in order to prevail on a claim of ineffective assistance of counsel, appellant must show that he was prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687-694.) Here, there was no prejudice because the trial court properly admitted the portions of Deputy Mathis’s testimony that are challenged on appeal.
A trial court’s admission of evidence, including expert testimony, is reviewed for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547.) In People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), the California Supreme Court held that “[t]he subject matter of the culture and habits of criminal street gangs” is a proper subject of expert testimony. (Id. at p. 617.) In Gardeley, the Supreme Court also held that a police officer’s expert testimony about the primary purpose of a gang and whether a crime was gang-related were admissible to establish that a gang met the statutory definition of a criminal street gang under section 186.22. (Id. at p. 654.) In People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), this court concluded that a police officer could not testify about the “subjective knowledge and intent” of each gang member during an incident. (Id. at p. 652.) However, the officer could testify about “the expectations of gang members in general when confronted with a specific action.” (Killebrew, supra, 103 Cal.App.4th at p. 658.) This court also referenced expert testimony that had been found admissible by other courts, such as “an individual defendant’s membership in, or association with, a gang,” “motivation for a particular crime, generally retaliation or intimidation,” and “whether and how a crime was committed to benefit or promote a gang.” (Id. at p. 657.) This court noted that, in Gardeley, supra, 14 Cal.4th 605, the Supreme Court admitted the testimony by a police gang expert about the common practices of a gang member. The expert in that case testified that: “‘It is common practice for several gang members acting in concert to assault a person in full view of residents of an area where the gang sells drugs. Such attacks serve to intimidate the residents and to dissuade them from reporting the gang’s drug-dealing activities to police. Gang members typically view a dispute or argument with someone who is not a member of the gang as a “challenge” to the gang’s authority, and they respond by trying to “dominate” the person physically, that is, they might “beat the person senseless, throw rocks over his head, kick him” and do this “where a lot of people can witness it.”’” (Id. at p. 654, fn. 8.)
In this case, the challenged testimony was admissible. First, all of the challenged testimony is relevant to the case because the prosecutor specially alleged that the assault and vandalism were committed for the benefit of a criminal street gang. Second, each challenged testimony was the proper subject matter for expert testimony.
Deputy Mathis’s testimony that all Surenos in a Sureno group will attack someone wearing red in Sureno territory and that no Sureno would try to protect the person in red is admissible because that testimony does not concern the subjective knowledge and intent of each gang member involved in the assault. Rather, the testimony is akin to the testimony permitted in Gardeley, supra, 14 Cal.4th 605, which was testimony about the expected behaviors of gang members. Appellant argues that Deputy Mathis went too far in his testimony when he asserted that “every gang member in the group would join in the attack and that none would try to protect the person in a rival color.” However, Deputy Mathis did not testify that this was the subjective knowledge and intent of appellant. Rather, Deputy Mathis was asked, “So if more than one gang -- more than one Sureno is in a Sureno area and sees an individual in red, are all of them expected to attack the person in red?” He answered, “Yes.” Deputy Mathis was then asked, “And if one of them doesn’t attack the person in red, you’re saying that person is likely to be assaulted?” He also answered “Yes.” Thus, Deputy Mathis did not impermissibly testify about appellant’s subjective knowledge and intent.
Deputy Mathis’s expert opinion that a gang member who says he quits claiming is trying to avoid “acknowledgement that he’s in the gang” and trying to “lure” law enforcement off of his membership is also admissible as a proper subject matter for expert testimony because it explains the customary behavior of gang members. We agree that it would be problematic for Deputy Mathis to testify that appellant was lying when he stated that he quit claiming. However, Deputy Mathis never testified that appellant was lying. Rather, his testimony created an inference that appellant was lying because this particular testimony was elicited during questioning about whether Deputy Mathis had an opinion on whether appellant was still a Sureno.
Deputy Mathis had testified that appellant had told law enforcement that he quit claiming. The prosecutor then asked Deputy Mathis to explain what quit claiming is and what does a gang member mean when he says he quits claiming. The prosecutor asked, “And what -- what does it mean when you quit -- when a gang member quits claiming?” Deputy Mathis answered, “He’s trying to say that he is no longer looking out for the benefit of his gang.” The prosecutor then asked, “Okay. So does that mean he would -- he would commit any more crimes for that gang?” Deputy Mathis, “No.” The prosecutor then asked, “What does it mean?” Deputy Mathis responded, “To me it means that he is trying to avoid law enforcement, um, acknowledgement that he’s in the gang.” The prosecutor then asked, “So it’s some -- in your opinion, and in your experience, it is somewhat deceptive?” Deputy Mathis, “Yes. He’s trying to lure us off his membership.” Thus, the record indicates that Deputy Mathis was testifying about a “generic” gang member who quits claiming. The prosecutor’s question was what does it mean when a gang member quits claiming and asks Deputy Mathis to draw upon his experience dealing with gang members who quit claiming. Appellant’s name was not mentioned, and appellant did not say that he quit claiming to Deputy Mathis. Thus, the record indicates that Deputy Mathis was testifying about the general behavior and customs of gang members and not specifically asserting that appellant was lying to law enforcement officers.
Finally, Deputy Mathis’s testimony that the assault and vandalism were done for the benefit of a criminal street gang is admissible because that testimony is a proper subject matter of expert testimony. Here, Deputy Mathis was presented with a hypothetical that was similar to the factual circumstances in this case. Based upon that hypothetical, Deputy Mathis opined that the crime was committed for the benefit of a street gang. This type of testimony has been repeatedly admitted by our courts. (See, e.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 1367 [expert witness could testify that a crime was committed for the benefit of a gang]). Moreover, in this case, there is substantial evidence other than Deputy Mathis’s testimony that supports a finding that the crimes were committed for the benefit of a criminal street gang. For example, during the commission of the assault and vandalism, appellant and other perpetrators “labeled” the crimes as gang-related by shouting such gang-related phrases as “Sur Trece” during the vandalism and “Puro Sur Trece” during the assault.
B. Whether Gang Expert’s Testimony Violated Confrontation Clause
Appellant next contends that Deputy Mathis’s testimony that several persons admitted to him that they were Sureno gang members violated the Confrontation Clause of the Sixth Amendment of the federal Constitution because he was not given an opportunity to confront these alleged gang members. We disagree.
As an initial matter, we conclude that appellant has forfeited this claim by failing to timely object during trial. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1220.) In any case, the claim fails on its merits.
Deputy Mathis’s testimony about certain persons admitting to him that they were Surenos was part of the prosecution’s attempt to prove the predicate offenses required for the gang enhancements and the offense of active participation in a street gang. We conclude that there is no confrontation clause issue involved with Deputy Mathis’s testimony because Deputy Mathis could rely upon hearsay to reach his conclusion that predicate offenses were committed by members of a criminal street gang. (See, e.g., Gardeley, supra, 14 Cal.4th at pp. 618-619 [expert could rely on hearsay in reaching his opinion].) There was no confrontation clause issue because the gang expert was subject to the cross-examination and the use of hearsay relied upon by the gang expert was not the use of testimonial hearsay which was condemned by the U.S. Supreme Court in Crawford v. Washington (2004) 541 U.S. 36. (See People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.) We note that Deputy Mathis only stated that certain persons told him that they were Sureno gang members. Those members were not on trial. There was no testimony that those persons told Deputy Mathis that appellant was a Sureno gang member or that appellant participated in any of the predicate offenses.
C. CALCRIM No. 1400
Appellant also contends that the trial court erred in instructing the jury on the definition of a criminal street gang pursuant to CALCRIM No. 1400. Specifically, he contends that the trial court erred in its inclusion of graffiti, vandalism, assault, carrying a concealed weapon, and attempted murder as predicate crimes for the jury’s determination of the “primary activities” prong of the gang enhancement charges. We reject appellant’s claim and conclude that there was no prejudicial error.
Initially, we note that appellant has forfeited his claim of instructional error by failing to timely object. (People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
CALCRIM No. 1400 provides that a criminal street gang has, as one or more of its primary activities, the commission of one or more crimes listed in section 186.22, subdivisions (e)(1) - (25). CALCRIM No. 1400 also provides that, “[i]n order to qualify as a primary activity, the crime must be one of the group’s chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group.” (See People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith), [“The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.”].) It is undisputed that the trial court erred in including graffiti, carrying a concealed weapon, and vandalism as predicate crimes for the jury’s determination of the primary activities prong of the gang enhancement charge because those crimes are not listed in section 186.22, subdivision (e). Thus, there was instructional error. However, we conclude that the instructional error was harmless beyond a reasonable doubt.
The California Supreme Court has held that the “primary activities” element might be satisfied by expert testimony that the defendant’s gang “was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.]” (Sengpadychith, supra, 26 Cal.4th at p. 324.) Here, Deputy Mathis testified that the primary activities of Sureno gangs included graffiti, vandalism, assaults, homicides, stealing cars, drug sales, grand theft, attempted murder, carrying concealed weapons, narcotic sales, and criminal threats. Assault and grand theft are enumerated crimes pursuant to section 186.22, subdivision (e). The jury found that appellant was guilty of assault by means of force likely to cause great bodily harm, which is an enumerated offense under section 186.22, subdivision (e)(4). Several other enumerated offenses that can constitute a primary activity of a criminal street gang were established by Deputy Mathis’s testimony and by prior court records, including convictions of Sureno gang members for assault with a deadly weapon, assault with force likely to cause great bodily injury, and grand theft. (See § 186.22, subds. (e)(1), (e)(4), (e)(9).) Thus, any instructional error on the primary activities of a criminal street gang was harmless. (Cf. People v. Bragg (2008) 161 Cal.App.4th 1385, 1401.)
D. Jury Instruction on Defense of Another
Appellant next contends that the trial court erred in denying trial counsel’s request to instruct the jury on defense of another. According to appellant, the evidence indicated that he attempted to intervene in the confrontation between Downer and Escalante in an attempt to stop the fight. We disagree that there was any instructional error.
It is settled law that a trial court must instruct on any defense that is supported by substantial evidence when requested by the defense. (People v. Elize (1999) 71 Cal.App.4th 605, 615.) “Evidence is substantial if a reasonable jury could find the existence of the particular facts underlying the instruction.” (People v. Lee (2005) 131 Cal.App.4th 1413, 1426.)
In this case, defense counsel had asked the trial court to include the defense of another as part of the jury instruction on the charged offense of assault by means of force likely to produce great bodily injury or with a deadly weapon. Defense of another is an affirmative defense that excuses an assault. If the charged offense is the rock throwing, appellant cannot assert the defense of another claim because his acts of defense occurred after the initial assault. Appellant argues that he may have been convicted of assault by the jury because of the physical interaction that occurred when he intervened between Downer and Escalante, instead of the rock throwing. However, appellant does not provide any evidence to support this assumption except for a question by the jury on whether appellant could still be convicted of assault if he did not throw a rock at Escalante. The answer is yes, because appellant could be convicted of assault for aiding and abetting Downer’s rock throwing. Here, there is no indication that the assault charge was based upon the subsequent physical interaction between appellant and Escalante. The evidence elicited at trial focused on who threw the rocks at Escalante and on the injuries to Escalante from the thrown rocks, not on any injury from the subsequent intervention by appellant. In final argument, the prosecutor asserted that the act constituting assault was the throwing of a rock. Thus, we conclude that appellant was convicted either for throwing a rock at Escalante or for aiding and abetting Downer in throwing a rock at Escalante. In either case, appellant cannot assert a defense of another claim because his acts of defense occurred after the initial assault and because he participated in the initial wrongdoing. Therefore, appellant has not shown why he was entitled to a defense of another jury instruction.
E. Juror Misconduct
Appellant further contends that the trial court erred in denying his motion for a mistrial because of juror misconduct. We disagree.
“The trial court is vested with broad discretion to act upon a motion for new trial. [Citation.] When the motion is based upon juror misconduct, the reviewing court should accept the trial court’s factual findings and credibility determinations if they are supported by substantial evidence, but must exercise its independent judgment to determine whether any misconduct was prejudicial. [Citations.] A juror’s receipt or discussion of evidence not submitted at trial constitutes misconduct. [Citation.] Juror misconduct raises a rebuttable presumption of prejudice; a trial court presented with competent evidence of juror misconduct must consider whether the evidence suggests a substantial likelihood that one or more jurors were biased by the misconduct. [Citation.] [¶]... The trial court’s decision whether to conduct an evidentiary hearing on the issue of juror misconduct will be reversed only if the defendant can demonstrate an abuse of discretion. [Citations.]” (People v. Dykes (2009) 46 Cal.4th 731, 809.)
Here, in support of the motion for a new trial, appellant submitted a declaration by a juror. In pertinent parts, the juror stated:
“Juror #2 took a ‘guilty/throw ‘em away’ attitude from the beginning of our deliberations regarding Mr. Tapia. She threw an emotional crying fit when we were not agreeing with her. She verbally attacked me when I made a comment that Tapia might actually have been trying to go clean as he testified. She went off on all her insights and definite beliefs about prison. As a nurse at the prison she claimed she was aware of different wings or units where those with different gang affiliations were housed and how the ‘safe’ unit is infiltrated by opposing gang members and acts or [sic] violence/retribution are still able to be carried out and that they don’t really want to break away. She was informing us as an expert on prison activity and gangs. I felt that her comments as the juries [sic] ‘expert witness’ influenced us in our further discussion. Some jurors privately commented that I did not deserve being treated like she did. I felt like she was definitely pre-judging Mr. Tapia.”
The juror also declared that “[t]owards the end of deliberations I remember someone saying that since he’d been in custody since the June 1st incident he’d probably be getting out soon based on all the time he’d already served!”
Appellant contends that this declaration revealed that the jury was provided with evidence outside of the evidence received in court. According to appellant, “[t]he jurors were told that the supposedly gang-free custody units are in fact infiltrated by gang members seeking revenge, casting doubt upon Tapia’s testimony that he had rejected his gang affiliation prior to the crime and sought to be housed in the special unit for that reason. They were also told that, even if convicted, appellant would soon be free, as a result of the time he had already served, an assurance likely to alleviate any anxiety about a wrongful conviction.”
We conclude that appellant has not shown prejudicial juror misconduct in this case. In the case involving Juror #2, the declaration states that Juror #2 rejected appellant’s assertion that he had quit claiming because, in her experience working as a prison nurse, she knew that appellant would not be safe from gang members in prison, and, thus, appellant did not really want to break away from the gang. Juror #2’s rejection of appellant’s testimony is merely her determination of his credibility which was based upon her life experiences. In People v. Steele (2002) 27 Cal.4th 1230 (Steele), the California Supreme Court stated that “[a] juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, but if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely one’s background from one’s analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations.” (Id. at p. 1266.) Under Steele, supra, Juror #2 did not commit misconduct. She did not assert an opinion that is different or contrary from the law on the charged offenses. Rather, she brought her background into the deliberations when she used her life experiences as a prison nurse to help determine appellant’s credibility. She then tried to persuade the jury about her credibility determination. Moreover, her statement does not significantly undermine appellant’s assertion that he quit claiming. First, Juror #2’s assertions are not necessarily accurate or correct. The assertions were based upon her individual experience; they were not based upon expert testimony from someone who has studied prison gangs. It also appears some of the other jurors did not like Juror #2, especially in her treatment of the juror who filed the declaration. Second, appellant’s assertion that he quit claiming may still be credible even if Juror #2’s assertions are true because appellant may not have been aware of the actual conditions in prison.
Similarly, the assertion by an unnamed juror that, since appellant had been in custody since the June 1, 2008 incident, appellant would probably be getting out soon based on all the time he had already served, does not constitute juror misconduct. In People v. Dykes, supra, 46 Cal.4th 731, the California Supreme Court held that “purported statements by jurors concerning the effect on them of the possibility of defendant’s release from prison and the probability of an execution constituted indications of juror mental processes that are made inadmissible by Evidence Code section 1150, subdivision (a). [Citation.] To the extent the comments reflected speculation concerning punishment, in People v. Steele, supra, 27 Cal.4th 1230, and other decisions, we have accepted similar discussions as an inevitable feature of the jury system. [Citations.]” (People v. Dykes, supra, 46 Cal.4th at p. 812.)
Here, an unknown juror, who did not hold himself out to be an expert on punishment or presentence custody credits, stated that appellant would be getting out soon. There is no indication that any other jurors verbally agreed with this assertion. It also turns out that the unnamed juror was factually incorrect. Nevertheless, there is no juror misconduct because the unknown juror was merely speculating about appellant’s possible punishment, which the California Supreme Court has accepted as an inevitable feature of the jury system and has found to not constitute juror misconduct.
Therefore, the trial court did not abuse its discretion in denying appellant’s motion or a new trial because of alleged juror misconduct.
F. Stay under Section 654
Finally, appellant contends that the punishment for count two, active participation in a criminal gang, should be stayed because there was no other evidence of any other activity engaged in by appellant to support the gang other than the two offenses for which he was convicted. We agree.
Section 654, subdivision (a), provides in relevant part that: “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.” “With respect to punishment imposed under statutes that define a criminal offense, it is well settled that ‘[s]ection 654 bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective.’ [Citation.]” (People v. Rodriguez (2009) Cal.4th 501, 507.) A trial court’s implied finding that appellant had a separate intent and objective for each charged offense will be upheld if it is supported by substantial evidence. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310 (Sanchez).)
Whether section 654 precludes multiple punishment for active participation in a criminal gang and for the underlying offense has not been clearly established in California. Recently, in Sanchez, supra, the appellate court held that section 654 precludes multiple punishment for both the crime of gang participation, which requires that the defendant have “willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of [the] gang,” and the underlying felony. (Sanchez, 179 Cal.App.4th at p. 1314.) To the appellate court, “the underlying robberies were the act that transformed mere gang membership--which, by itself, is not a crime--into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies.” Thus, where “the only way the jury could have found defendant guilty of gang participation was by finding that he committed the underlying robberies,” section 654 precludes multiple punishment. (Id. at p. 1316, fn. omitted.) We also note that it is not uncommon for a trial court to stay a punishment for the crime of gang participation where the defendant was sentenced for the underlying offenses. (See, e. g., People v. Castenada (2000) 23 Cal.4th 743, 746, fn. 2 [“The trial court sentenced defendant to state prison for three years on the robbery, one year and four months on the attempted robbery, and a total of six additional years for two enhancements (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a) [personal use of firearm]; and § 186.22, subd. (b)(1) [criminal street gang enhancement]). Pursuant to section 654, the court stayed imposition of sentence on the charge we address here, active participation in a criminal street gang (§ 186.22, subd. (a)).”].)
The appellate court in In re Jose P. (2003) 106 Cal.App.4th 458, however, reached a different conclusion. That court held that section 654 did not preclude multiple punishments for gang participation and the underlying offense, which was robbery in that case. According to the appellate court, “the record supports a finding that [defendant] harbored the separate intent and objective to participate in the gang.” (Id. at p. 471.) “Evidence of that intent was abundant. The minor had been actively involved in gangs since at least 1999. He was arrested along with a gang member for car theft. He was expelled from school for a gang fight. His brothers were gang members.” (Ibid.) “[Defendant’s] intent and objective in committing the robbery was to take the property located in the home. Application of the [gang] enhancement does not alter the fact that he must also have had the intent to take the property. While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery.” (Ibid.)
We conclude that the analysis of Sanchez, supra, 179 Cal.App.4th 1297, is more persuasive and applicable to this case. Here, appellant was charged with the crimes of assault and vandalism. Both offenses had a gang enhancement allegation, which meant that the prosecutor contended that the crimes were committed for the benefit of a criminal street gang. Appellant also was charged with the crime of active participation in a criminal street gang which required that he “willfully promoted, furthered or assisted in felonious criminal conduct by members of that gang.” By convicting appellant of the crimes of assault and vandalism, the jury found that appellant had a separate intent to commit assault and to commit vandalism. However, the only way the jury could have found defendant guilty of gang participation was by finding that he committed the underlying crimes. There was no other offense charged in the information. Evidence was presented that appellant had claimed Sureno membership, but no evidence was presented that appellant had committed other gang-related offenses. Thus, appellant can only be convicted of both assault and vandalism along with the respective gang enhancements or one of the underlying offenses and the offense of active participation in a criminal street gang. Here, the trial court sentenced appellant to an aggregate term of six years and eight months in prison with a concurrent term of two years on the offense of active participation in a criminal street gang. Under section 654, the concurrent term should have been stayed, or appellant’s aggregate prison term should have been reduced by at least eight months.
DISPOSITION
The convictions are affirmed. The case is remanded to the trial court for resentencing to either stay the concurrent term of two years for the second charged count or reduce appellant’s aggregate prison term by at least eight months.
WE CONCUR: Levy, J., Gomes, J.