Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA069404, Richard R. Romero, Judge.
Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
PROCEDURAL BACKGROUND
On January 22, 2007, a second amended information was filed charging appellant Derrick Adams Willie and Daniel Christopher Brown with attempted robbery in counts one through three (Pen. Code, §§ 211, 664). The information alleged under all three counts that they had personally used a rifle (§ 12022.53, subd. (b)) and that a principal had been armed with a semi-automatic weapon (§ 12022, subd. (a)(1)). In addition, the information charged appellant in count 4 with possession of a firearm as a felon (§ 12021, subd. (a)(1)), in count 5 with unlawful distribution of an assault weapon (§ 12280, subd. (a)(1)), in count 6 with possession of ammunition as a felon (§ 12316, subd. (b)(1)), and in count 7 with possession of marijuana for sale (Health & Saf. Code, § 11359). The information also alleged that appellant’s offenses had been committed in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)), and that he had suffered five prior felony convictions or juvenile adjudications (§§ 667, subd. (a)(1), subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5).
All further statutory citations are to the Penal Code, unless otherwise indicated.
Trial by jury of appellant and Brown began on January 22, 2007. On February 5, 2007, a jury found appellant guilty of three counts of attempted robbery, as well as possession of a firearm and ammunition as a felon, possession of an assault weapon, and possession of marijuana for sale. In addition, the jury also found the gun use and gang allegations to be true, with the exception of the allegations that appellant had personally used a firearm in connection with the three attempted robberies, and that his distribution of an assault weapon, possession of ammunition as a felon, and possession of marijuana for sale were gang-related. After the jury found that appellant had suffered five prior felony convictions and served two prior prison terms, the trial court imposed an aggregate sentence of seven consecutive terms of 25 years to life, plus a determinate term of 90 years.
The jury also found co-defendant Brown guilty as charged and found the special allegations against him to be true. Brown is not a party to this appeal. In an unpublished opinion, this court resolved Brown’s appeal following the judgment against him (People v. Brown (Jan. 29, 2008, B197571) [2008 Cal.App.4th Unpub. Lexis 775]). To the extent that appellant raises similar contentions on identical facts, we recite the pertinent facts as stated in that opinion.
FACTS
A. Prosecution Evidence
At 1:00 a.m. on March 3, 2006, Roque Santos was driving home in his red Astro van. When he left the van to open a gate, an African-American man pointed a gun at him, told him to walk away, and took the van.
At approximately 8:00 a.m. on March 3, 2006, an A.T. Systems armored car carrying more than $30 million arrived at a branch office of the Farmers & Merchant Bank in Long Beach. Gabriel Perez drove the armored car, which also contained Jaime Arrieta. Accompanying the armored car was a marked A.T. Systems “chase” truck driven by Antonio Del Valle. Del Valle was assigned to protect Arrieta, who acted as a “hopper,” that is, transported money to and from the armored car when it made stops.
It was raining as Perez backed the armored car up to within a few feet of the bank door. Del Valle parked his truck nearby. After the bank manager unlocked the bank door, Arrieta and Del Valle moved money from the armored car into the bank. In accordance with A.T. Systems procedure, Perez remained in the armored car. Inside the bank, Arrieta and Del Valle collected money they were to transport elsewhere, and Arrieta pushed a cart bearing the money outside to the armored car.
Arrieta testified as follows: While Del Valle stood inside the bank and held the door open for him, Arrieta moved the cart to the rear of the armored car. A man wearing a mask -- who was identified by other witnesses as Brown -- approached Arrieta, pointed a rifle at his chest, and said, “‘Give me the money.’” A second masked man also appeared and pointed a rifle at Arrieta. Del Valle emerged from the bank and fired his gun at the two men, hitting Brown three times in the stomach. Brown fell to the ground while his accomplice ran to a red or burgundy van, accompanied by a third man. The two men entered the van and drove away. The armored car also left.
Del Valle testified that after he opened the bank door for Arrieta’s cart, he retreated momentarily into the bank to retrieve his umbrella. From within the bank he looked through the door -- which had remained open -- and saw three armed men confront Arrieta. He fired his gun at the three men. The man closest to Arrieta fell down, and the other two men fled in a red van.
Perez, the driver of the armored car, testified that after Arrieta left the car, he remained in the driver’s seat looking over paperwork. He noticed three men dressed in black running toward the armored car, and shouted an alarm to Arrieta. He soon heard Arrieta scream, “‘Take whatever you want,’” followed by shots. When he saw two of the men running from the armored car, he surmised that the third man had entered the open rear door of the armored car. Perez drove the armored car away from the bank to find help and to “bounce [the third man] around until he was out of [the armored car].” Perez saw the two fleeing men enter a red van, which he unsuccessfully tried to intercept. He then returned to the bank.
Susan Stencil, who operated a business near the bank, testified as follows: While she was standing across the street from the bank, she saw the armored car, and noticed a red or “maroonish” van drive slowly by the front of the bank. The van soon returned and stopped in the middle of the street. A black man wearing a mask and carrying a rifle left the van and walked quickly toward the armored car, followed by two more men from the van. She took cover behind a truck and heard shots.
Outside the bank, investigating officers found Brown, who was injured, and two loaded rifles. One of the rifles contained a nine millimeter Fiocchi bullet in its chamber. They also discovered Santos’s red van in an alleyway in Long Beach. The van contained a handgun and a bloodstained carpet. The handgun’s magazine was attached with transparent tape. Appellant’s fingerprints matched a print found on the tape, and DNA testing identified him as a probable source of genetic material on the gun. DNA testing on the blood stains led the investigating officers to arrest Darrell Slack as appellant’s and Brown’s accomplice.
In April 2006, Long Beach Police Officer Donald Collier, accompanied by other officers, arrested appellant for the attempted robbery of the armored car, and searched his apartment. They found approximately two pounds of marijuana, a digital weight scale, and numerous empty “Ziploc” baggies in appellant’s bedroom, and a box of nine-millimeter Fiocchi bullets and an Intratec nine-millimeter assault handgun in his closet.
On April 26, 2006, Los Angeles Police Detective John Mercado and Long Beach Police Detective Steven Prell interviewed appellant, who stated that he was a member of the East Coast Crips Q102 gang. Los Angeles Police Department Officer Ben Perez, a gang expert, testified that the Q102 gang is a “set” or faction of the East Coast Crips. Perez opined that appellant belonged to the Q102 East Coast Crips, that Slack was also an East Coast Crip, and that the attempted robbery of the armored car had been committed for the benefit of a criminal street gang, namely, the East Coast Crips. (§ 186.22, subd. (b)(1)(A).)
During the interview, appellant admitted that he owned the marijuana, scale, and baggies in his bedroom, but denied ownership of the ammunition and assault weapon in his closet.
B. Defense Evidence
Long Beach Police Officer Asif Khan testified that he and his partner arrived at the bank at approximately 8:30 a.m. on March 3, 2006. According to Khan, the scene was “very chaotic.” The officers found Brown, who was wounded, as well as numerous shell casings and two long-barreled rifles. Khan interviewed Perez and Arrieta, each of whom said that the three perpetrators had long-barreled guns.
Kahn was offered as a witness on behalf of appellant.
Long Beach Police Detective Steven Prell testified that when he arrived at the bank on the date of the crime, he directed a technician to place numbers on shell casings found at the site. Approximately 48 Long Beach police officers and three FBI agents were present when he arrived.
Prell was offered as a witness on behalf of Brown.
The prosecutor presented brief rebuttal testimony from Perez and Del Valle. Perez testified that when the robbers ran past him, he saw only their shadows, and no weapons; he also denied telling investigating officers that each perpetrator had a long-barreled gun. Del Valle reaffirmed that he saw two long-barreled guns, and stated that no one had asked him for money.
DISCUSSION
Appellant contends: (1) there was error in the selection of the jury; (2) the evidence was insufficient to support his convictions for the attempted robberies and the possession of a handgun as a felon; (3) the trial court improperly admitted gang evidence; (4) he was improperly convicted of illegal activity regarding an assault weapon; and (5) his sentence constitutes cruel and unusual punishment.
A. Error in Jury Selection
Appellant contends that the trial court erred in denying his motion for a new jury panel under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, rejected on another ground in Johnson v. California (2005) 545 U.S. 162. He argues that the prosecutor failed to show she had genuine nondiscriminatory motives for exercising a peremptory challenge to a prospective African-American female juror. We disagree.
1. Governing Principles
Generally, “[t]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution [citation] as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. [Citation.] . . . [¶] ‘A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenges at issue.” (People v. Burgener (2003) 29 Cal.4th 833, 863-864, quoting People v. Jenkins (2000) 22 Cal.4th 900, 993.)
To carry this burden, the prosecutor “need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 136.) Thus, justification for a challenge may be properly found in “‘“bare looks and gestures”’” that may alienate a party (People v. Wheeler[, supra,] 22 Cal.3d [at p.] 276), and a challenge “based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.” (People v. Turner (1994) 8 Cal.4th 137, 165, rejected on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
“The trial court’s ruling on this issue is reviewed for substantial evidence[, provided that] . . . ‘the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror.’ [Citations.]” (People v. McDermott (2002) 28 Cal.4th 946, 971, quoting People v. Silva (2001) 25 Cal.4th 345, 386.)
2. Underlying Proceedings
During voir dire, prospective Juror No. 9 stated that she was a physical therapist. She was divorced, and had four minor children. Her ex-husband, who had been a paramedic, died “in the line of duty” in 2005. She explained that his death was “related to fire and smoke inhalation.” Her first cousin and a neighbor were Los Angeles County deputy sheriffs. Another first cousin “basically was a career criminal” who had “been arrested for armed robbery and three strikes and been placed in prison.” According to Juror No. 9, the armed robbery involved an elderly person, rather than a bank. She also had a cousin who had been arrested for vehicular manslaughter, incarcerated, and released.
Prospective Juror No. 9 was initially designated as “Juror No. 18” during voir dire.
Juror No. 9 had been a juror in a murder case in which the jury had hung. When she was asked whether the jurors had “acted reasonably and honestly and did their best to reach a verdict,” she answered, “I did.” She also indicated that in the previous year someone had vandalized her car by knocking out the back window.
Juror No. 9 worked in a trauma center where her patients had included gang members. When asked whether she had encountered problems with these patients, she answered, “Not particularly, no. Just the contact.” The prosecutor conducted the following examination on this matter:
“[Prosecutor]: No. [9], in the trauma center did you treat any Crips?
“[Juror No. 9]: Yes.
“[Prosecutor]: How did you know they were Crips?
“[Juror No. 9]: Um, they don’t mind telling you that they are affiliated with a gang.
“[Prosecutor]: Did you see any tattoos?
“[Juror No. 9]: Yes.”
When the prosecutor asked Juror No. 9 for her opinion about gangs, she answered: “[T]hey do a lot that’s wrong and disrupt our society.”
The prosecutor initially accepted jury panels containing Juror No. 9, but eventually exercised a peremptory challenge to her. Appellant’s counsel raised an objection under Wheeler, contending that the prosecutor had exercised the challenge because Juror No. 9 was a black female. Appellant’s counsel argued that the prosecutor had previously exercised a peremptory challenge against a black male, and that there were no blacks on the current panel; she also observed that only one remaining member of the juror pool was black. Noting that Juror No. 9 “appeared [to be] a very strong D.A. juror,” the trial court found that this constituted a prima facie showing of discrimination, and asked the prosecutor to explain her peremptory challenge.
The prosecutor responded: “I will never keep a juror who has hung a serious case and states they hung . . . . This juror hung. No matter what color she is, she hung. And she answered your question in a way that she was hung, and it was a [murder case], a very serious case.” She added: “And she has two different cousins who have been convicted of serious crimes, including robbery that was armed -- that’s what this [case] is about -- and . . . some kind of manslaughter. [¶] Not only that, she serves and helps Crips. The hung jury and serving and helping Crips -- it is her obligation morally to treat Crips and help them . . . .” The prosecutor further explained that she had accepted another juror (No. 14) who had served on a hung jury in a case involving a violent felony -- shooting at an inhabited dwelling -- only because the juror indicated he was not responsible for the deadlock.
After questioning the prosecutor about her grounds for excusing Juror No. 9, the trial court denied the Wheeler motion, stating: “It’s a facially valid reason for excusing a juror that he served on a prior case where the jury was deadlocked, and a reasonable and competent D.A. can use that as -- and would use it, in my opinion, as a basis for excusing a juror regardless of race.”
3. Analysis
At the threshold, appellant argues that the trial court did not make a “sincere and reasoned attempt to evaluate each stated reason” for the peremptory challenge (People v. Silva, supra, 25 Cal.4th at p. 386). The record does not support this contention. The trial court did not accept the prosecutor’s asserted reasons at face value, but questioned her about each reason, and elicited a clarification from her as to why she had not excused another juror who had served on a hung jury. Because the trial court made the requisite sincere and reasoned evaluation (see People v. Williams (1997) 16 Cal.4th 153, 189), we review its determinations for the existence of substantial evidence. Under that standard, we find no error.
Appellant contends that the prosecutor’s asserted grounds for exercising the peremptory challenge were pretextual because Juror No. 9 never indicated she was responsible for hanging the jury in the murder trial, and she otherwise stated that gangs engage in wrongful and disruptive conduct. We disagree. That Juror No. 9 had served on a hung jury in a case involving a serious felony is itself an adequate race-neutral basis for the peremptory challenge, regardless of whether she was known to be responsible for the deadlock. (See People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1108, 1114.) In addition, her incarcerated relatives constituted an adequate race-neutral basis (ibid.), as did her occupational relationships with members of the Crips, in view of the gang-related allegations against Willie (see People v. Landry (1996) 49 Cal.App.4th 785, 789-790; People v. Perez (1996) 48 Cal.App.4th 1310, 1314-1315).
Pointing to People v. Hutchins (2007) 147 Cal.App.4th 992, appellant contends that dismissing a prospective juror because she sat on a hung jury may constitute Batson-Wheeler error. There, the prosecutor excused a prospective juror who been on a hung jury in an unspecified trial. (Id. at p. 996.) Following a Wheeler motion, the prosecutor told the trial court, “‘I don’t keep jurors who are on hung jur[ies].’” (Ibid.) After the trial court overruled the motion on the ground that the defendant had not provided “clear and convincing evidence” of racial discrimination, the appellate court reversed and remanded the matter, reasoning that the trial court had imposed an erroneously stringent evidentiary burden on the defendant. (Id. at pp. 996-999.) Because the appellate court did not describe the nature of the case in which the prior jury had hung or the other evidence before the trial court, Hutchins does not establish the presence of Batson-Wheeler error here.
Appellant notes that the prosecutor initially accepted prospective Juror No. 1, who had also served on a hung jury, before exercising a peremptory challenge against him. During voir dire, prospective Juror No. 1 stated that he had previously served on several juries, each of which had reached a decision, with the exception of a jury in a shoplifting case. Because shoplifting is a considerably less serious offense than those charged in the underlying case, the record establishes that the prospective juror fell outside the prosecutor’s stated concerns about prior jury performance. Moreover, the prosecutor ultimately excused Juror No. 1.
We note as well that the prosecutor repeatedly declined to exercise a peremptory challenge against Juror No. 9 before excusing her, raising the reasonable inference that the prosecutor properly exercised her challenge in response to the dynamics of the jury selection process, not on the basis of racial bias. As our Supreme Court explained in People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221: “[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyer’s position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors. However, if one or more of the supposed favorable or strong jurors is excused either for cause or peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain. These same considerations apply when considering the . . . experience of the prospective jurors.” That the prosecutor repeatedly accepted Juror No. 9 before excusing her indicates that the prosecutor was concerned about the role that Juror No. 9 would play on the jury, as its composition evolved, rather than racial bias.
Finally, appellant suggests that a comparative analysis of the prosecutor’s peremptory challenges by this court establishes that the prosecutor impermissibly exercised her challenge against Juror No. 9. We disagree. Generally, comparative analysis involves “side-by-side comparisons of . . . black venire panelists who were struck and white panelists allowed to serve.” (Miller-El v. Dretke (2005) 545 U.S. 231, 241.) As our Supreme Court recently explained, when, as here, a comparative analysis is requested for the first time on appeal, “[t]he reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment.” (People v. Lenix (2008) 44 Cal.4th 602, 624. Appellant’s claim thus relies exclusively on Juror No. 1 who, like Juror 9, was ultimately excused by the prosecutor; moreover, as explained above, a side-by-side comparison of Juror Nos. 1 and 9 betrays no discriminatory conduct by the prosecutor. In sum, the trial court properly denied appellant’s Batson-Wheeler motion.
B. Substantial Evidence
Appellant contends that his convictions for attempted robbery and possession of a firearm as a felon fail for want of substantial evidence.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
1. Attempted Robbery of Perez and Del Valle
Appellant was convicted of three counts of attempted robbery, each based on the A.T. Systems employee involved in the incident. He contends that his convictions for the attempted robbery of Del Valle (count 1) and Perez (count 3) fail for want of substantial evidence. The crux of his contention is that there is no evidence that appellant and his accomplices exercised force against Del Valle and Perez or tried to instill fear in them. For the reasons explained below, this contention fails.
“Robbery is the taking of personal property in the possession of another from his person or immediate presence, against his will, accomplished by means of force or fear. (§ 211.) Robbery is both assaultive and larcenous and is a crime against property and persons. [Citation.]” (People v. Bonner (2000) 80 Cal.App.4th 759, 763-764 (Bonner).) Under these principles, when the property taken is jointly held by two or more individuals, a defendant may be convicted of the robbery of each individual subjected to force or fear. (People v. Ramos (1982) 30 Cal.3d 553, 589.) As the court explained in Bonner: “Property may be in the joint possession of several persons. Thus, while a robbery may involve a single act, a conviction of robbery is proper for each person in possession of the property against whom force or fear is applied to accomplish the taking. [Citations].” (Bonner, supra, 80 Cal.App.4th at pp. 763-764.)
In the case before us, appellant was charged with attempted robbery, rather than robbery. “The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. (§ 21a.) ‘“An attempt connotes the intent to accomplish its object, both in law . . . and in ordinary language.” [Citation.]’ [Citation.] The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. [Citation.] Where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]” (Bonner, supra, 80 Cal.App.4th at p. 764.)
Because a defendant can commit attempted robbery without satisfying the elements of robbery, he or she may be properly convicted of the attempted robbery of a person against whom no force or fear was actually applied. In Bonner, the defendant planned to rob a hotel manager who took cash and checks to a bank each week, usually accompanied by his assistant. (Bonner, supra, 80 Cal.App.4th at pp. 761-762.) The defendant armed himself and waited in the hotel garage for the manager and his assistant to drive to the bank. (Ibid.) Before they appeared, two other hotel employees discovered the defendant, and he fled. (Ibid.) The defendant was convicted of two counts of attempted robbery, one count based on the attempted robbery of the manager, and the other on the attempted robbery of the assistant. (Id. at p. 763.) On appeal, the defendant contended that he had been improperly convicted of two counts of attempted robbery because he never was in close proximity to either intended victim and he made no demand upon them. (Ibid.) In addition, he argued that the evidence of his intent to rob the manager and the assistant was insufficient to support the two convictions because his intentions or the number of his victims might have changed before he actually encountered his victims. (Id. at p. 765.)
The court in Bonner rejected these contentions, reasoning that multiple convictions for attempted robbery are permissible even when an attempted robbery is interrupted before the perpetrator is in the presence of the victims, provided that the number and identities of the intended victims can be determined. (Bonner, supra, 80 Cal.App.4th at pp. 764-765.) It stated: “Appellant was guilty of attempted robbery at the moment his acts in the furtherance of his intent went beyond mere preparation, i.e., when appellant performed acts placing his plan in operation. [¶] It is clear at the moment appellant entered the garage, he intended to rob both the manager and assistant manager. Any later event that interrupted those crimes was irrelevant to appellant’s liability for two counts of attempted robbery. The possibility that only one of the intended victims would go to the bank that day is as irrelevant to determining the proper number of counts as the possibility no one would go [to] the bank that day is irrelevant to determining whether an attempt occurred at all. [¶] The evidence clearly showed appellant’s intent to rob both the manager and assistant manager. Appellant did not merely prepare to rob the two, he engaged in acts that would ordinarily result in the commission of the crime but for an interruption.” (Id. at p. 765.)
In our view, Bonner is dispositive of the question before us. There is ample evidence that Arrieta, Perez, and Del Valle jointly possessed all money transported in the armored car. (See 2 Witkin & Epstein, Cal. Criminal Law (3d. ed. 2000) Crimes Against Property, § 93, pp. 122-123.) Moreover, the record establishes that appellant and his accomplices intended to subject all three men to force or fear.
At trial, undisputed evidence was presented that the armored car arrived at the bank each morning at 8:00 a.m., or shortly thereafter, and that appellant and his accomplices prepared for the robbery by arming themselves, stealing Santos’s van, and donning masks. In addition, the evidence supports the reasonable inference that appellant and his accomplices were aware of the presence of Arrieta, Perez, and Del Valle before they left Santos’s van. According to Susan Stencil, the van drove slowly past the armored car once before it returned. In so doing, appellant and his accomplices would have had a view of Perez, who was seated in the armored car, as well as Del Valle’s marked chase truck. In addition, Stencil testified that she saw more than one A.T. Systems employee working near the rear of the armored car when the robbers left the van. Although she mistakenly believed that she saw three employees, her testimony indicates that both Arrieta and Del Valle were visible as appellant and his accomplices ran toward the armored car.
Stencil testified that she thought she saw three A.T. Systems employees behind the armored car when the men left the van: two employees were bringing out the money cart while another employee stood at the back of the armored car. She also stated that the event happened very fast, and that she did not “stand and count.”
Because the record discloses that appellant was aware of Arrieta, Perez, and Del Valle, and intended to apply force or fear against each of them in order to take the money in their possession, it contains sufficient evidence to support his convictions for attempted robbery. People v. Ramos, supra, 30 Cal.3d at pages 587-589 and People v. Marquez (2000) 78 Cal.App.4th 1302, 1306-1309, which appellant cites for the contrary position, discuss the elements of robbery, but do not address attempted robbery, and thus are inapposite. In sum, substantial evidence supports appellant’s convictions for attempted robbery.
Appellant argues that Bonner is distinguishable because the robbers displayed no intent to take money from Del Valle or Perez by force or fear. We disagree. As the court in Bonner explained, the intent to rob a particular victim is properly inferred from the perpetrator’s conduct in planning the robbery. (Bonner, supra, 80 Cal.App.4th at pp. 764-765.) Here, the evidence establishes that the plan involved three armed robbers who sought money they knew was possessed and protected by three A.T. Systems employees. Under Bonner, this evidence shows an intent to rob all three employees.
2. Appellant’s Participation in the Attempted Robberies
Appellant contends that there is insufficient evidence that he participated in the attempted robberies. He argues that no eye witness identified him as a perpetrator, and that the evidence linking him to the gun found in Santos’s van does not establish that he used the gun in the course of the attempted robberies. We disagree.
Appellant also suggests that his conviction for possession of a firearm as a felon (count 4) fails for want of evidence that he possessed the gun in question at the time of the attempted robberies. As we explain below, there is ample evidence that he did so.
According to Long Beach Detective Steven Prell, after Santos’s van was discovered, Prell removed the gun, unloaded it, and preserved pieces of transparent tape that held the magazine in the gun. Appellant’s fingerprints matched a print found on the sticky side of the tape. DNA testing on the gun revealed a mixture of DNA from at least four individuals, to which appellant was a possible contributor. Bryan Edmonds, a senior criminalist employed by the Los Angeles County Sheriff’s Department, opined that aside from Willie, only one out of 13,960 African-Americans could have contributed to the mixture.
On April 26, 2006, Detective Prell and Los Angeles Police Detective John Mercado interviewed appellant after his arrest. When Mercado told appellant that his fingerprints had been left at the scene of the robbery, appellant responded, “I don’t know how you found my fingerprints on a gun. I haven’t handled a gun since 1993.” Prell noted that Mercado had not mentioned a gun, and asked how appellant had guessed the location of his fingerprints. Appellant gave no response, and refused to answer further questions.
This evidence, together with other evidence presented at trial, is sufficient to establish that appellant participated in the attempted robberies. As we have explained, the robbers engaged in considerable preparation and planning for the crime: they stole a van, scouted the armored car, wore masks, and carried loaded rifles. The evidence of planning raises the reasonable inference that the robbers loaded the gun and secured the magazine in preparation for the crime. As appellant’s fingerprint was found on the sticky side of the tape holding the magazine, the jury could properly conclude that appellant readied the gun for use in the crime, and then participated in it. This conclusion is corroborated by the DNA testing and appellant’s awareness that a gun had been found in the van. In sum, there is sufficient evidence that appellant participated in the attempted robberies.
C. Gang Evidence
Appellant contends that gang evidence was improperly admitted over his objections pursuant to Evidence Code section 352 (section 352), which allows a trial judge to exclude evidence whose “probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice.” Generally, the trial court’s “exercise of discretion under [] section 352 will not be disturbed on appeal absent a clear abuse.” (People v. Karis (1988) 46 Cal.3d 612, 634 (Karis).) No error occurred here.
Appellant also contends that the admission of the gang evidence denied him due process. The record discloses that he never objected to the evidence or the gang allegation on this basis. Accordingly, appellant may raise only a very narrow due process contention on appeal, namely, that the erroneous admission of the gang evidence under Evidence Code section 352 rendered his trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 434-439.) As we explain below, the trial court made no such error, and thus appellant’s due process contention fails.
Section 186.22, subdivision (b)(1), provides a sentence enhancement for a defendant convicted “of a felony 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 . . . .” (§ 186.22, subd. (b)(1).) Here, a gang enhancement was alleged against appellant under all the counts against him.
A criminal street gang is “any ongoing organization, association, or group of three or more persons, whether formal or informal,” that has as “one of its primary activities” the commission of enumerated offenses, that has “a common name or common identifying sign or symbol,” and “whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
As our Supreme Court explained in People v. Hernandez (2004) 33 Cal.4th 1040, 1051 (Hernandez), when a gang enhancement has been alleged, the trial court may decline to bifurcate trial of the enhancement unless the defendant makes a clear showing of prejudice. In cases not involving a gang enhancement, evidence of gang membership is properly excluded if its probative value is minimal, due to the potential for prejudice to the defendant. (Id. at p. 1049.) Nonetheless, even in cases of this kind, gang evidence is often admissible as relevant to many issues, including identity, motive, and intent. (Ibid.) In contrast, when a gang enhancement is alleged, considerations of efficiency and the conservation of judicial resources weigh in favor of submitting gang evidence to the jury. Accordingly, in such cases, the trial court may properly deny bifurcation, absent a clear showing that a joint trial carries a substantial danger of undue prejudice, even though some evidence bearing on the enhancement would be inadmissible under section 352 in a separate trial of the underlying offense. (Id. at pp. 1049-1050.)
Appellant did not seek to bifurcate trial of the gang enhancements. In view of Hernandez, we conclude that evidence relevant to the gang enhancement, but not to the underlying crimes charged against appellant, was admissible unless its potential for prejudice substantially outweighed its probative value in establishing the enhancement. Here, the prosecution gang expert, Los Angeles Police Department Officer Ben Perez, provided the bulk of the evidence regarding the factual predicates of the gang allegations.
Appellant’s reply brief contends that his trial counsel, Murray Meyer, requested bifurcation of trial. We disagree. Prior to trial, Meyer asserted a motion in limine under Evidence Code section 352 on the ground that no gang allegations had been asserted against co-defendant Brown. He contended that the disparity was illogical and intended to inflame the passions of the jury against appellant. The following colloquy then occurred:
Perez testified that the Q102 gang is a “set” or faction of the East Coast Crips. The Q102 claims a particular neighborhood, and has approximately 55 members who engage in a variety of crimes, including narcotic sales, burglaries, robberies, and witness intimidation. The Q102 and other sets of the East Coast Crips form “one big gang” spread out among numerous neighborhoods. Perez opined that appellant belonged to the Q102 East Coast Crips, and that Slack was also an East Coast Crip. According to Perez, members of the East Coast Crips other than appellant have been convicted in three separate cases of, respectively, murder, murder in the commission of robbery, and possession for sales of narcotics.
Regarding appellant’s gang membership, Perez testified that he was familiar with appellant, whom he had seen on the Q102’s claimed turf, and who had tattoos distinctive of Q102 members. Over appellant’s objection, the trial court ordered him to display his tattoos to the jury.
Perez also opined that the attempted robbery of the armored car had been committed for the benefit of a criminal street gang, namely, the East Coast Crips. (§ 186.22, subd. (b)(1)(A).) In explaining his opinion, he stated: “When sophisticated robberies such as this are committed, [members of the East Coast Crips] just don’t go out and drive around and look for somebody to rob. These things are preplanned. They use lay-off cars. They use other persons they can trust, people they know who have the ability to carry out some of the threats [] required in a robbery. [¶] A lot of times they’ll want somebody that’s experienced, that will not talk when the police confront them, so that if caught, [] they won’t expose the rest of the crew. They have to have people that they trust. In fact, sometimes it gets so sophisticated, they will pair up people -- they’ll combine people that never met each other. That way they’ll never know who to identify or who to tell the police about. . . . [¶] For that reason, for the number of weapons that were recovered and other persons that were present, the level of sophistication of this attempt[ed] robbery is only -- can only be done by persons that are career criminals and gang members.”
We see no error in the admission of this evidence. Courts have approved expert opinion on the subjects of Officer Perez’s testimony in connection with gang allegations. (People v. Duran (2002) 97 Cal.App.4th 1448, 1465 [gang’s primary criminal activities]; People v. Castenada (2000) 23 Cal.4th 743, 753 [defendant’s membership in gang]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1217-1218 [whether gang satisfies factual predicate required under statutory definition of “criminal street gang”]; People v. Gardeley (1996) 14 Cal.4th 605, 619-620 [whether crime had features marking it as performed by, and for the benefit of, a gang].)
Appellant contends that the gang evidence “was both irrelevant and unduly prejudicial overkill” because the evidence was not relevant to the underlying offenses. We disagree. The evidence was directly tailored to prove the elements of the gang allegations, “which was a legitimate purpose for the jury to consider it.” (Hernandez, supra, 33 Cal.4th at p. 1052.) As the prejudice that appellant asserts arose from the evidence admitted for this purpose, it does not establish error under section 352. Our Supreme Court has explained: “The prejudice which exclusion of evidence under [] section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in [] section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Karis, supra, 46 Cal.3d at p. 638, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) Under these circumstances, the fact that the evidence would not have been admissible in a separate trial of the underlying offense did not require its exclusion under section 352. (See Hernandez, supra, 33 Cal.4th at p. 1050.)
Appellant’s reliance on several cases is misplaced, as these cases did not involve a gang allegation, and thus are factually distinguishable. (People v. Cardenas (1982) 31 Cal.3d 897, 901, 903-907 [plur. opn. of Bird, J.]; People v. Luparello (1986) 187 Cal.App.3d 410, 418, 426; People v. Perez (1981) 114 Cal.App.3d 470, 473, 476-478; In re Wing Y. (1977) 67 Cal.App.3d 69, 72, 76-79.)
Appellant also contends that the evidence improperly suggested to the jury that he had a propensity to commit crimes. As appellant requested no limiting instructions on this matter, he has forfeited any such contention of err. (See Hernandez, supra, 33 Cal.4th at p. 1052.) In sum, the gang evidence was properly admitted.
D. Count 5: Assault Weapon Charge
Appellant contends that he was improperly convicted under count 5. Although the second amended information charged appellant in count 5 with illegal assault weapon activity, as defined in subdivision (a)(1) of section 12280 (subdivision (a)(1)), the jury found appellant guilt of a lesser offense, namely, possession of an assault weapon, as defined in subdivision (b)) of section 12280 (subdivision (b)). He argues that he received inadequate notice that he had been charged with the lesser offense, and that there is insufficient evidence to support a conviction for the greater offense. We conclude that appellant impliedly consented to the jury’s consideration of the lesser offense.
Subdivision (a)(1) of section 12280 provides: “Any person who, within this state, manufactures or causes to be manufactured, distributes, transports, or imports into the state, keeps for sale, or offers or exposes for sale, or who gives or lends any assault weapon or any .50 BMG rifle, except as provided by this chapter, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for four, six, or eight years.”
Generally, “[a] defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. [Citations.] The reason for this rule is settled. ‘“This reasoning rests upon a constitutional basis: “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ Citation.”’ Citation.The required notice is provided as to any charged offense and any lesser offense that is necessarily committed when the charged offense is committed. [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
As our Supreme Court explained in People v. Toro (1989) 47 Cal.3d 966, 973 (Toro), disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3, an exception to this rule arises when “a defendant expressly or impliedly consents to have the trier of fact consider a nonincluded offense.” There, the information charged the defendant with attempted murder and assault with a deadly weapon. (Toro, supra, at p. 972.) In addition to these offenses, the jury was instructed regarding the offense of battery with serious bodily injury, which the instructions and verdict forms erroneously described as a lesser included offense of attempted murder. (Id. at p. 973.) The defendant’s counsel raised no objection to the instructions and verdict form regarding battery with serious bodily injury, or to the jury’s consideration of the offense. (Id. at p. 977.) Our Supreme Court concluded that the defendant had impliedly consented to the submission of the charge to the jury, and had forfeited any contention of error. (Id. at pp. 976-977.)
Here, the second amended information charged appellant in count five with a violation of subdivision (a)(1), which prohibits the manufacturing, distribution, transportation, importation, and sales of assault weapons. At trial, the prosecutor presented evidence establishing only that appellant possessed the Intratec assault handgun found in his closet, and at the prosecutor’s request, the jury was instructed with respect to the elements of unlawful possession of an assault weapon. Although the jury found appellant guilty of “the crime of possession of an unlawful assault weapon,” the abstract of judgment reflects that appellant’s sentence on count 5 was imposed under subdivision (a)(1).
Contrary to respondent’s contention, possession of an assault weapon is not included within the offense charged in count 5 of the second amended information. Two tests are employed “in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]” (People v. Reed, supra, 38 Cal.4th at p. 1227.) Here, at least two activities proscribed in subdivision (a)(1) -- namely, transporting and offering an assault weapon for sale -- do not require possession of an assault weapon. (See People v. Thomas (1991) 231 Cal.App.3d 299, 305 [possession of cocaine is not an essential element of transportation of cocaine]; People v. Murphy (2007) 154 Cal.App.4th 979, 982-984 [possession of cocaine is not an essential element of selling cocaine].) Moreover, the second amended information lacks allegations that establish possession; count 5 is pleaded exclusively in terms of the language of subdivision (a)(1), and contains no factual allegations regarding possession. (See People v. Montoya (2004) 33 Cal.4th 1031, 1036; People v. Quintero (2006) 135 Cal.App.4th 1152, 1168-1169.)
Appellant’s contention nonetheless fails in light of Toro. During opening statements, appellant’s counsel asserted that the evidence would show that appellant did not possess the assault handgun. Later, in the course of the bench conferences on jury instructions, the prosecutor submitted an instruction for count 5 regarding the elements of unlawful possession of an assault weapon. When the trial court described count 5 as involving “possession of the assault weapon,” and invited objections from appellant’s counsel, he raised none. Because appellant never challenged his conviction on count 5 prior to his appeal, despite ample opportunity to do so, he has forfeited his contention of error. However, as the abstract of judgment improperly states that he was convicted under subdivision (a)(1), the abstract of judgment must be corrected to reflect that his conviction on count 5 was for a violation of subdivision (b).
Because the Three Strikes law dictates identical sentences for violations of subdivisions (a)(1) and (b) under appellant’s circumstances, this correction does not require any modification of appellant’s sentence.
E. Cruel and Unusual Punishment
Appellant contends that his sentence violates the federal and state constitutional prohibitions against cruel and unusual punishment. He argues that his sentence is disproportionate to his criminal history, to the risk he poses to society, and to his culpability.
Respondent contends that appellant has forfeited this objection by failing to raise it before the trial court. We agree. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Nonetheless, we address the contention on its merits to forestall any claim that appellant’s counsel rendered him ineffective assistance at trial.
Disproportionality claims under the Eighth Amendment of the United States Constitution are rarely successful in non-capital cases. (Harmelin v. Michigan (1991) 501 U.S. 957, 965-1001 [affirming a sentence of life without the possibility of parole for the possession of 672 grams of cocaine by a first offender]; Ewing v. California (2003) 538 U.S. 11, 18-20, 30-31 [affirming a sentence of 25 years to life under the Three Strikes law for a recidivist who had shoplifted golf clubs worth $1,200, and whose prior convictions were for theft, grand theft of an automobile, burglary, robbery, and battery]; Lockyer v. Andrade (2003) 538 U.S. 63, 66-69, 76 [ affirming sentence of two consecutive terms of 25 years to life for a recidivist who had stolen $150 worth of video tapes, and whose prior convictions were for shoplifting, burglary, and transportation of marijuana]; but cf. Solem v. Helm (1983) 463 U.S. 277, 281 [life without possibility of parole for writing one bad check for $100 prohibited by the Eighth Amendment].) In Rummel v. Estelle (1980) 445 U.S. 263, the United States Supreme Court rejected a proportionality challenge to a life sentence imposed pursuant to a recidivist statute when the defendant’s successive crimes consisted of $80 worth of fraudulent use of a credit card, passing a $28.36 forged check, and obtaining $120.75 by false pretenses, explaining in a footnote: “This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent . . . if a legislature made overtime parking a felony punishable by life imprisonment.” (Id. at p. 274, fn. 11.) This is not such a case.
Citing People v. Carmony (2005) 127 Cal.App.4th 1066, Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, and Banyard v. Duncan (C.D.Cal. 2004) 342 F.Supp.2d 865, appellant contends that the Three Strikes law, as applied to his circumstances, resulted in a sentence that violates the ban on cruel and unusual punishment. We disagree. Each of these cases involved a defendant whose third “strike” was a nonviolent felony. (People v. Carmony, supra, 127 Cal.App.4th at pp. 1073-1074 [failure to register as a sex offender]; Reyes v. Brown, supra, 399 F.3d at p. 965 [perjury in applying for a driver’s license]; Ramirez v. Castro, supra, 365 F.3d at p. 756 [petty theft]; Banyard v. Duncan, supra, 342 F.Supp.2d at p. 868 [possession of less than a gram of rock cocaine].) In view of appellant’s convictions for armed robbery, his sentence falls outside the special circumstances addressed in these cases.
Under the California Constitution, the test is whether the punishment is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Appellant thus bears a heavy burden to demonstrate that his crime has been punished in an unconstitutional manner. In determining whether he has carried this burden, we consider (i) the degree of danger the offender or the offense pose to society; (ii) how the punishment compares with punishments for more serious crimes in the same jurisdiction; and (iii) how the punishment compares with punishment for the same offense in other jurisdictions. (Id. at pp. 425-427.)
With respect to factor (i), appellant’s present offenses arose from his participation in a violent armed robbery, and he had a lengthy criminal history. Aside from a juvenile adjudication in 1985 for assault with a deadly weapon (§ 245, subd. (a)(2)), he suffered a conviction in 1990 for assault with a firearm on a police officer (§ 245, subd. (d)(1)) and four convictions in 1994 for robbery (§ 211). As a result of the latter convictions, he was sentenced to a term of eight years in prison. The persistent recidivist may be punished severely for even nonviolent crimes without crossing the boundary of conscience and human dignity. (People v. Cooper (1996) 43 Cal.App.4th 815, 824.)
With respect to factors (ii) and (iii), appellant argues that his sentence is greater than the sentence a first-time offender would receive under California law for second degree murder and other violent crimes, and disproportionate to the sentence he would have received for the same crimes in other jurisdictions. However, because the commission of a single felony cannot be compared with the commission of multiple felonies by a recidivist (People v. Cooper, supra, 43 Cal.App.4th at p. 826), “it is proper to punish a repeat offender more severely than a first-time offender” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512 (Martinez)). Moreover, as the court explained in Martinez, the fact that California’s Three Strikes punishment scheme is among the most stringent in the nation does not establish that it is constitutionally infirm. (Ibid.)
We may not lightly encroach upon the Legislature’s power to define crime and determine punishment. (People v. Wingo (1975) 14 Cal.3d 169, 174.) Our role is simply to determine whether appellant’s sentence crosses the boundary of conscience and fundamental notions of human dignity. (Id. at p. 175, fn. 5.) We conclude that boundary has not been breached in this case. Appellant’s sentence is not disproportionate to his offense and does not constitute cruel and unusual punishment.
Respondent argues that the trial court erred in the imposition of appellant’s sentence. We disagree. Under section 1170.1, subdivision (a), the subordinate term of consecutive offenses “shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” As defined in section 1170.11, the term “specific enhancement” refers to an enhancement that “relate[s] to the circumstances of the crime,” and encompasses enhancements under sections 186.22 and 12022. Here, the trial court sentenced appellant to consecutive terms of 25 years to life on the seven counts pursuant to the Three Strikes law; in addition, it imposed additional and consecutive terms of three years on counts 1 through 4 for the gang enhancements (§ 186.22, subd. (b)(1)(A)), plus one year on counts 1 through 3 for an armed principal (§ 12022, subd. (a)(1)), plus 25 years on counts 1 through 3 for the five prior serious felony convictions (§ 667, subd. (a)(1)).
DISPOSITION
The judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment to reflect that appellant’s conviction in count 5 is for a violation of subdivision (b) of section 12280, and forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur EPSTEIN, P. J.,SUZUKAWA, J.
“The Court: You’re asking me to dismiss the allegations because the allegations can’t stand without evidence being presented in support of them. So, in essence, you’re asking me to dismiss the allegations, right?
“Mr. Meyer: In essence, I guess I’m asking you to dismiss them and, in the alternative, to exclude testimony and, in the alternative of that, at least to hold that in abeyance until the issue comes up.
“The Court: Are you moving to bifurcate?
“Mr. Meyer: The gang issue, until the People bring a gang expert.” (Italics added.)
The prosecutor explained that her gang expert had testified at the preliminary hearing in support of the gang allegations against appellant, but had not testified that Brown had gang affiliations.
Subdivision (b) of section 12280 provides: “Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison.”
Pointing to section 1170.1, subdivision (a), respondent suggests the trial court was obliged to impose one-third of the gang enhancement on counts 2 through 4, and one-third of the armed principal enhancement on counts 2 and 3, resulting in a total determinate term of 82 and two-thirds years, rather than 90 years. However, as the court explained in People v. Lyons (1999) 72 Cal.App.4th 1224, 1226-1227, section 1170.1 is inapplicable to indeterminate sentences under the Three Strikes law, and does not bar the imposition of full enhancements.