P. v. Acedo

Filed 11/20/07 P. v. Acedo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellants Richard Raul Acedo and Antonio Cisneros were jointly tried before a jury and convicted of multiple crimes arising from a "gangbanging" incident. Acedo was convicted of second degree murder (Pen. Code^[1],  187, subd. (a), 189), two counts of attempted premeditated murder ( 664, 187, subd. (a)), assault with a firearm ( 245, subd. (a)(2)), and possession of cocaine (Health & Saf. Code,  11350, subd. (a)). Acedo's codefendant, Antonio Cisneros, was convicted of first degree murder ( 187, subd. (a), 189), two counts of attempted premeditated murder, and assault with a firearm. The jury also found true firearm and gang enhancement allegations that were alleged as to each count. ( 186.22, subd. (b), 12022.53, subds. (b)-(e).) The trial court sentenced Acedo to a total term of 157 years to life in state prison, and Cisneros to a total term of 120 years to life. Appellants contend that the court (1) abused its discretion in admitting certain gang evidence; (2) violated its sua sponte duty to bifurcate the gang enhancement allegations; (3) erred in instructing the jury on self-defense, imperfect self-defense, and motive; and that (4) the evidence is insufficient to support the jury's findings that the crimes were committed for the benefit of a criminal street gang, as contemplated by section 186.22. Cisneros also claims he was sentenced to the upper term on the assault count and related enhancement in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], while Acedo also challenges the sufficiency of the evidence supporting the jury's finding that he personally inflicted great bodily injury in committing the assault with a firearm ( 12022.7) alleged in count 4. We affirm.

FACTS AND PROCEDURAL HISTORY

The Crimes

In the afternoon of February 10, 2002, Pedro Andrade pulled his Toyota truck into the driveway of a vacant lot next to Belen Rocha's house at 3428 Broadway Street in Huntington Park. Rocha, her daughter, and her boyfriend, Nelso Gonzalez, all got out of the truck, while Andrade and Salvador Ruelas stayed inside. After Rocha and her daughter went inside the house, Andrade saw Gonzalez walk quickly around the back of the truck and down the street toward three young males who were approaching him. Andrade got out of the truck and followed a few feet behind Gonzalez; Ruelas followed behind Andrade.

When Gonzalez reached the three men, one of them stepped backward and the other two spread out on each side of him. Andrade, believing that the men did not pose a threat, turned to walk back to his truck. As he did so, he was shot several times and fell to the ground. After he fell, he was shot again. Andrade saw Gonzalez run across the street and fall to the ground. As Gonzales lay, one of the men walked up and shot him at close range. Andrade also saw Ruelas being chased down the street by the man who had shot Andrade. Andrade subsequently identified appellants as the shooters from a photographic lineup, but was unable to identify either of them at trial.

Andrade testified at trial that he did not remember any verbal exchange between the two groups. In a police interview at the hospital, however, Andrade said that three men had approached and asked them what gang they were from, identified themselves as being from "TMC," then started shooting without any provocation. Andrade also said that Gonzalez may have said something like "[t]here goes Broadway" when they encountered the three males and may have pushed or swung at one of them. He admitted he was a member of the Loma Vista gang in the 1980's.

Fourteen-year-old Johan Matus testified that he was in the front yard of a nearby house when the gunfire broke out. Matus saw a man clutching his stomach as he ran toward them on the sidewalk, then saw two muzzle flashes and what appeared to be the shadow of another man. When Matus and his friend realized there was gunfire, they attempted to get out of the line of fire. Matus, however, was shot in the leg. Matus spent a month in the hospital, required knee surgery, and suffered permanent damage as a result of the injury.

Rocha testified that she came outside after hearing a horn and saw Andrade, Gonzalez and Ruelas and a group of three young males walking toward each other. The two groups met and appeared to be talking when one of the younger men suddenly pulled out a gun and started shooting. Rocha ran into the house, looked out the window, and saw Andrade and Gonzalez lying in the street. Ruelas and three young males were gone. A few days later, Rocha identified Cisneros from a photographic lineup as the shooter. She identified him again at the preliminary hearing and at trial.

Rocha told the police that Andrade and Ruelas had written "Loma Vista" on the side of Gonzalez's house, and that the three of them had "hit up" the three males who looked like "little kids." Rocha also said that the victims had tried to start a fight with the three males and had taken a swing at one of them.

Amado Garcia testified that he was washing his car in the driveway of his house at 3424 Broadway when he heard approximately eight gunshots. Garcia ran inside his house and looked out the window. He saw a male in a dark hooded jacket, whom he identified at trial as Acedo, coming down the sidewalk as he appeared to be loading or unloading a semiautomatic handgun. After Acedo was out of sight, Garcia heard approximately six more gunshots. He also saw a man who appeared to be following Acedo throw something at Andrade's truck.

Patricia Henriquez testified that she was in the driveway of her aunt's house across the street from Rocha's when she saw two groups of three men on the sidewalk arguing with each other. Henriquez told the police it appeared that one of the groups was "hitting up" the other, although she was unable to tell which group was the aggressor. Henriquez also said that as the men in each group were standing shoulder to shoulder, a man from one group stepped forward and pushed a man in the other group, who pushed back. She was unsure who had pushed first, but she believed it was the driver of the truck. A thin bald male wearing a dark blue t-shirt and a man from the same group in a white t-shirt pulled out guns and started firing. Henriquez tentatively identified Cisneros from a photographic lineup as the man in the white t-shirt, although she was unable to identify him at trial. Ten to twenty minutes after the shootings, Henriquez saw one of the men from the truck return with blood on his shirt who was carrying what appeared to be a black handgun. The man parked Andrade's truck on the street, then walked between two houses.

Birtha Velasquez, Gabriela Rodriguez, and Myra Cisneros were attending a party in the backyard of Velasquez's house at 3377 Broadway when they heard the gunshots. All three saw a man who was bleeding and clutching his side as he ran up Velasquez's driveway and up the stairs to the rear apartment. Myra also saw another man in a dark hooded sweater who was chasing the first man and fired at least one shot at him. After the first man ran up the driveway, the second man got into a car down the street and the car drove away. Velasquez saw a man in a white t-shirt who was looking for the first man, then saw him drive away in a white car. Rodriguez also saw a white car drive away, although she did not see anyone in it. She later saw the wounded man leave without making any attempt to contact the police when they arrived.

Gonzalez died of multiple gunshot wounds, including two shots in the back and one fired at close range into his neck. Andrade was shot in the back, buttocks, back of the leg, and testicles, suffering a total of six gunshot wounds. Ruelas suffered a through-and-through bullet wound to his chest.

The Investigation

Sixteen shell casings were recovered from the scene of the shooting. Bullets and bullet fragments were also recovered from Andrade, Gonzalez, and Matus.

On February 21, 2002, a search warrant was executed at two residences at 3358 Broadway where appellants resided with Cisneros's mother and half-brother, Maria Espinoza and Jose Osegueda. The police recovered, among other things, a gun safe containing components of an AK-47 assault rifle, an SKS rifle, documents with TMC gang writing, a surveillance camera, a police scanner, brass knuckles, knives, registration papers and receipts for gun purchases, and boxes of ammunition for a 7.62-millimeter rifle and 9-millimeter, .30-caliber and .38-caliber firearms. In Espinoza's closet, the police found a purse containing a business card for a public storage facility in Montebello. In a car registered to her, they also found a receipt identifying a locker number and several business envelopes addressed to the storage facility.

Later that day, the storage locker in Montebello was searched. A total of 76 firearms were recovered, including a Walther handgun, a handgun registered to Acedo, approximately 50,000 rounds of ammunition, an explosive device, silencers, ammunition magazines and clips, speed loaders, bullet proof vests, and a gas mask. TMC gang graffiti was on the walls. It was subsequently determined that one of the bullets that struck Andrade, as well as another bullet and five casings recovered from the scene of the shooting, had been fired from the Walther handgun.^[2] The manager of the storage facility subsequently identified Espinoza from a photographic lineup as the person who had always come in to pay for the locker rental.

On February 26, 2002, Acedo was contacted by the police in Espinoza's driveway. When asked to identify himself, he gave a false name. A patdown search revealed crack cocaine and a crack pipe, and Acedo was arrested. Acedo also had a wallet containing documents with "TMC" written on them that purportedly belonged to Osegueda.

Expert Gang Testimony

Los Angeles Police Officer Adrian Parga testified as a gang expert on behalf of the prosecution. Officer Parga testified that TMC, also known as The Mob Crew, is an active Hispanic gang with 120 documented members that started in the 1980's in the Pico Aliso housing project. The gang was displaced when the housing development was demolished in 1999, and gradually sought to establish new territory in the Huntington Park area where the shootings occurred. The officer identified various TMC hand signs and graffiti, some of which was found in the immediate vicinity of the shooting only a month before trial. Officer Parga explained that there was no gang graffiti when the shootings occurred in 2002 because the gang had not yet succeeded in taking control of the new territory. He also testified that only TMC members would be allowed to put up the gang's graffiti or use its "TMC" symbol, and that the TMC graffiti in Espinoza's home and the Montebello storage locker were clear signs of gang affiliation. The officer also hypothesized that the storage locker was "a safe house or stash location for weapons for TMC."

Officer Parga testified that TMC's members sold drugs and had committed robbery, burglary, assault and murder. When presented with a hypothetical question based on the facts of the case, the officer opined that appellants were not only TMC members, but were "trusted enough to the point where they are going to allow them to know where this storage container is with all the guns, the stash for the whole gang of TMC." He also opined that the shootings were committed to benefit the gang and to boost their own reputations within the gang and the community at large. His opinion was the same even if the victims initiated the confrontation, because the gang would consider that action "the ultimate sign of disrespect, and it would be something that they would have to respond to immediately."

DISCUSSION

I.

Gang Evidence

Appellants contend the trial court abused its discretion in admitting various forms of evidence that was offered to prove that appellants were members of a criminal street gang and that their crimes had been committed for the benefit of the gang, as contemplated by section 186.22. As we shall explain, appellants fail to demonstrate that the court abused its discretion in admitting any of the challenged evidence.

A.

The Evidence, Objections and Rulings

i.

Photographs

Prior to trial, appellants moved in limine to exclude or limit evidence regarding the TMC gang in its opening statement on the ground that the evidence was either irrelevant or unduly prejudicial under Evidence Code section 352. Specifically, appellants took issue with photographs depicting TMC gang graffiti, including one example stating "fuck the police" and several others depicting TMC graffiti on the interior walls of the storage locker where the cache of weapons was found, as well as photographs of other TMC members holding guns and flashing gang signs. Some of the photographs were taken several years earlier in East Los Angeles, while photographs depicting TMC graffiti at the scene of the shootings were taken shortly before trial in 2005. The graffiti was not present when the crimes occurred in 2002.

In offering the evidence, the prosecution argued: "If these are things which a gang expert could rightfully describe in court and demonstrate to the jury, what better evidence is there than photographs of live gang members demonstrating for the camera how to do the signs and symbols that are unique to this gang. [] The graffiti [is] the same thing. . . . If this was an organization that did not put up graffiti, did not have hand signs, then it would be pretty hard to show that this was a criminal street gang. [] TMC is a gang that is not from Huntington Park which is where the crime occurred. The gang originated in East L.A., . . . not Huntington Park. The date is not relevant. This gang has been around since the '80s for about two decades. The symbols have remained unchanged. The signs have remained unchanged. [] In addition to the signs and symbols, the People must show that this is a criminal organization that engages primarily in all kinds of nefarious conduct, including assaults, weapons violations, et cetera. [] And so, yes, it's prejudicial. Any evidence which tends to show the elements the People must prove is prejudicial to the defense. But these are things which hit the nail on the head in terms of what the People must prove, the common sign or symbol, the TMC signs."

The court ruled that the prosecutor could show the photographs during his opening statement, except for those depicting TMC graffiti at the scene of the shooting. The court noted that the jury would be instructed that opening statements are not evidence, and that the prosecutor bore the risk of stating things in his opening that he would be unable to prove at trial.

The prosecutor subsequently showed the photographs to the jury during his opening statement, and Officer Parga identified them as depicting TMC graffiti during his testimony. In his opening statement, the prosecutor told the jury: "[I]n this case you are going to hear about a criminal street gang called the Mob Crew. They call themselves TMC for short. [] Now this is a gang that originated from the housing projects of East Los Angeles back in the '80s. And the graffiti they like to put up is the initials TMC for

. . . their gang. [] Criminal, a typical criminal street gang, very anti-establishment, very anti-law enforcement, as you can see from the graffiti on the left where is says 'fuck the police.'"

The court also allowed the prosecutor to use the photographs of TMC graffiti at the scene of the shooting during Officer Parga's testimony, on the ground that they were relevant to prove that TMC was in the process of establishing its control over the area when the shootings occurred. Although the court considered the connection tenuous and believed the prosecution might be "overdoing it," it overruled appellants' objection.

At the conclusion of the trial, the prosecution moved to admit all of the photographs into evidence. The court denied the motion with regard to the photographs depicting TMC graffiti at other locations and those of other TMC gang members holding guns and flashing gang signs. The photographs depicting TMC graffiti on the walls of the storage locker, as well as those of TMC gang graffiti subsequently taken at the scene of the shootings, were admitted.

ii.

Weapons Display

Appellants also moved in limine to exclude evidence regarding the items seized from the storage locker in Montebello that was rented by Cisneros's mother. The court concluded that the evidence was admissible to show that TMC was a criminal street gang, and that appellants were members or associates of that gang because (1) the handgun Acedo used in the shooting and another gun registered to him were found in the locker; and (2) the locker was rented by Cisneros's mother and his brother had access to it.

During the trial, the prosecutor announced his intention to display all of the weapons and ammunition to the jury in an adjacent courtroom, on the ground that it would be more efficient and expeditious for the jury to view all of the firearms at once instead of going through 76 individual photographs. Appellants objected to the display as well as the photographs on the ground that 75 of the firearms (i.e., all except the Walther handgun used in the shootings) and the ammunition found in the locker were irrelevant or should be excluded under Evidence Code section 352. The court overruled the objection, reasoning: "[O]ne element of 352 presents no problem. There is not going to be an undue time consumption. I have already explored that. We are going to do this in 15 minutes. . . . [] The other one, quite frankly, is the serious one, does the prejudicial value, and it is prejudicial but so is all adverse testimony, does it outweigh the probative value of this evidence. [] [I]f that murder gun was not in the stock, in the stash, then I would be inclined to think that the prejudicial value outweighs the probative. But the probative value is there. [] And if I balance it, it has a slight edge so the probative value of this evidence with the murder gun involved with the gang allegations would have to be proved, tied in, leads me to the determination that I am going to allow it." Appellants subsequently renewed their objection, contending that the display was "museum-like" in that each item had its own identification placard. The court overruled the objection, and indicated that the jurors would merely be passing by the display and would not be given the opportunity to "linger."

After the display was conducted, defense counsel described the procedure as follows: The jurors were ushered into the adjacent courtroom. Five deputy sheriffs were sitting throughout the audience. Appellants sat at the counsel table, surrounded by three more officers. Detectives Bassett and Curiel were standing in the jury room, where the items were displayed. According to counsel, this show of police presence compounded the prejudicial effect of the display. The prosecutor responded that the entire process was brief, and the jurors were promptly returned to the courtroom. As soon as the jurors returned, the court admonished them that the evidence they had just observed should not be considered by them to infer criminal disposition on the part of appellants. The court added that the evidence was relevant only to prove the gang enhancement allegations, and that the jury would be more fully instructed later.

At the conclusion of the trial, the jury was instructed on the limited use of the gang evidence.^[3] The court also reiterated its admonition that the weapons display was relevant only to prove the gang allegations, and that it would not be considered as evincing a predisposition to commit the crimes with which appellants were charged.

B.

Analysis

Acedo essentially concedes in his opening brief that the challenged photographs and items found in the storage locker were at least minimally relevant to prove either that TMC was a criminal street gang as contemplated by section 186.22, or that appellants' crimes were committed for the benefit of that TMC gang. While Cisneros argues that the evidence was irrelevant, he bases his argument on the erroneous premise that there was no evidence connecting Cisneros to the TMC gang. As we shall explain, there was sufficient evidence supporting the jury's contrary finding. Appellants also argue that the court abused its discretion in failing to exclude the evidence under Evidence Code section 352.^[4] We disagree.

Gang evidence is admissible in a criminal trial if it is relevant to a material issue in the case and is not more prejudicial than probative. (People v. Carter (2003) 30 Cal.4th 1166, 1194; Evid. Code, 351, 352.) The court's admission of such evidence is reviewed for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.) The court cannot be said to have abused its discretion in this regard unless its decision "exceeds the bounds of reason." (People v. Funes (1994) 23 Cal.App.4th 1506, 1519.)

There was no abuse of discretion here. With regard to the photographs, those depicting other TMC members and TMC graffiti at locations other than the scene of the shooting were ultimately excluded from trial. Although these photographs were utilized during the prosecutor's opening statement, the jury was instructed that opening statements are not evidence. Officer Parga also relied on them in his testimony, but the jury was instructed that the evidence pertaining to the gang enhancement allegation "only applies if you first find beyond a reasonable doubt that either of these defendants is guilty of any of the offenses charged; namely, murder, attempted murder, et cetera. You must consider this evidence from this expert for the limited purpose of determining the existence of the special street gang allegations alleged in this case." We assume the jury heeded these instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)

The court also properly exercised its discretion in admitting the photographs of TMC graffiti at the scene of the shootings. The evidence was plainly relevant to support Officer Parga's testimony that it is "common for gang members who are displaced to go into an area and establish control of that area, and three years is more than enough to take and control and claim that area as their own." While appellants were apparently prepared to concede that TMC qualified as a criminal street gang for purposes of section 186.22, that concession would have had no bearing on the determination whether the gang was seeking to establish its territoriality over Broadway Street when the shootings occurred. Moreover, appellants were free to argue to the jury that the connection the prosecution sought to establish was, as the trial court characterized it, too "tenuous" to establish proof beyond a reasonable doubt that appellants committed the crimes for the benefit of the TMC gang.

The display of the items found in the storage locker was also proper. One of the weapons was used in the shootings, another was registered to Acedo, and the locker was rented by Cisneros's mother. The fact that the weapons belonged to the TMC gang was demonstrated by the copious TMC graffiti on the walls, and the volume and nature of the items foundwhich included, among other things, 76 firearms, 50,000 rounds of ammunition, an explosive device, silencers, bullet proof vests, and a gas maskwere admissible to prove that the gang was an active and thriving criminal enterprise. While we do not doubt that the display profoundly affected the jury, "[t]he prejudice which exclusion of evidence under Evidence Code 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 Evidence Code 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."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.) Moreover, the display was expeditious and consumed less time than it would have taken to present the evidence photographically to the jury in a piecemeal fashion. The jury was also expressly admonished regarding the limited purpose of the evidence, and we assume the jury heeded that admonition.

In any event, any error in admitting the challenged evidence is harmless. While appellants claim the alleged evidentiary errors amount to a due process violation, "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]" (Partida, supra, at p. 439, citing People v.Watson (1956) 46 Cal.2d 818, 836.) Appellants make neither showing here. One of the men in appellants' group identified them as TMC gang members, and TMC gang writing was recovered from appellants' residence. The gun Acedo used in the shooting was found in a storage locker rented by Cisneros's mother, and the locker's walls were covered with TMC graffiti. In light of this evidence, it is not reasonably probable that the jury would have rejected the gang enhancement allegations had the challenged evidence been excluded.

II.

Bifurcation

Appellants contend the court had a sua sponte duty to bifurcate the trial on the substantive offenses from the gang enhancement allegation. They cite no authority, however, for the proposition that the court ever has a duty to bifurcate gang allegations absent a request to do so, nor are we aware of any such authority. On the contrary, our Supreme Court has suggested that no such duty exists. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1050.) In any event, the court would not have abused its discretion in denying bifurcation even if appellants had requested it.

Bifurcation of gang enhancement allegations may be appropriate where the evidence supporting the allegations is not intertwined with the evidence of the charged offenses and is highly inflammatory. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) The court cannot be said to have abused its discretion in denying bifurcation unless the gang evidence is "so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Ibid.)

None of the evidence offered to prove the gang allegation in this case compels such a finding here. "[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) Much of the gang evidence in this case was relevant to the charged offenses. According to one of the victims, appellants identified themselves as TMC gang members. Other evidence also identified appellants as members of the gang. The gang enhancement was "inextricably intertwined" with the charged offenses in that it assisted in establishing appellants' identity, a motive for their crimes, and that they possessed the requisite intent to commit those crimes. (Id., at p. 1048.) None of the evidence offered to prove the gang allegation was "so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants' actual guilt." (Id., at p. 1051.) Moreover, the jury was instructed on the limited use of the evidence offered solely to prove the gang allegation, and we have no reason to believe the jury failed to heed those instructions.
In any event, the overwhelming evidence of appellants' guilt would render harmless any error in failing to bifurcate trial of the gang enhancement. (See Chapman v. California (1967) 386 U.S. 18, 23-24 & fn. 7; People v. Watson, supra, 46 Cal.2d at p. 836.) Appellants were positively identified as the shooters by various individuals, and one of the weapons used in the crime was directly connected to them. This undisputed evidence establishing appellants' culpability on the charged offenses compels the conclusion that they were not prejudiced by the joint trial of those offenses with the gang enhancement.

III.

Section 186.22 Enhancements

Appellants contend the evidence is insufficient to support the jury's finding that the crimes were gang related, as contemplated by section 186.22. We disagree.

To obtain a true finding on a gang enhancement allegation, the prosecution had to prove that the crimes of conviction were "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." ( 186.22, subd. (b)(1).) "In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period. ( 186.22, subds. (e) and (f).)" (People v. Gardeley (1996) 14 Cal.4th 605, 617.) We review the jury's true finding on the gang enhancement allegation for substantial evidence. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) In performing this task, "[o]ur role is limited: We must review the record in the light most favorable to the judgment and draw all inferences from the evidence which support the finding. [Citations.]" (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) "Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt." (People v. Millwee (1998) 18 Cal.4th 96, 132.)

The evidence presented in this case is plainly sufficient to support the jury's finding that the crimes were committed for the benefit of the TMC gang. As Cisneros correctly states in his opening brief, "[o]ne classic example of a gang related offense is where gang members confront individuals, demand to know where they are from and then assault them." (See, e.g., People v. Roquemore (2005) 131 Cal.App.4th 11, 17.) Detective Bassett testified that Andrade told him that appellants and another individual approached him, Gonzalez and Ruelas, asked them what gang they were from, identified themselves as being from "TMC," and then began shooting at them. This evidence is sufficient by itself to support the finding that the crimes were committed for the benefit of the gang.

Cisneros also ignores all of the other evidence, including expert testimony, which supports the finding. While he argues that "[t]he offenses could easily have been found lesser included offenses of the crimes of which appellant was convicted, in which he over-responded to a show of force and intimidation by older men," the possibility that the jury could have found him guilty of lesser offenses is irrelevant in assessing the sufficiency of the evidence. Moreover, this is not, as Cisneros claims, a case in which the evidence gives equal support to competing inferences, such that neither is established beyond a reasonable doubt. (See, e.g., People v. Brown (1989) 216 Cal.App.3d 596, 600.) The evidence, viewed in the light most favorable to the judgment, is more than sufficient to prove that the crimes were committed for the benefit of the TMC gang.^[5]

IV.

CALJIC No. 5.17^[6]

At the conclusion of the trial, the court instructed the jury on imperfect self-defense pursuant to CALJIC No. 5.17, as follows: "A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter. [] As used in this instruction, an 'imminent' peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary's use of force." (Italics added.)

Appellants contend that the italicized portion of the instruction, which was added as part of a 1996 revision, is erroneously "cast in objective terms and takes no account of the defendant's subjective belief as to the situation," and thereby "purports to disqualify imperfect self-defense for the defendant who makes a mistake of fact as well as for the defendant who either violates the law knowingly or who makes a mistake of law unknowingly." We agree with the People that appellants waived this claim by failing to challenge the standardized jury instruction below because they essentially complain that the instruction was incomplete, not incorrect. (See People v. Daya (1994) 29 Cal.App.4th 697, 714 [A "defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions"].) In any event, the claim lacks merit.

CALJIC No. 5.17 is a nearly-verbatim reiteration of a passage from In re Christian S. (1994) 7 Cal.4th 768, 773, footnote 1, which states: "It is well established that the ordinary self-defense doctrine-applicable when a defendant reasonably believes that his safety is endangered-may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense." This language has subsequently been cited with approval. (See People v. Randle(2005) 35 Cal.4th 987, 1001; People v. Seaton (2001) 26 Cal.4th 598, 664 ["Because, however, defendant's testimony showed him to be the initial aggressor and the victim's response legally justified, defendant could not rely on unreasonable self-defense as a ground for voluntary manslaughter"]; People v. Hardin (2000) 85 Cal.App.4th 625, 630 & fn. 2, 634 [concluding that the "wrongful conduct" language is "legally correct"].)

We have no authority to deviate from the Supreme Court's pronouncements on this issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellants nevertheless assert that the "unlawful or wrongful conduct" language is inconsistent with People v. Barton(1995) 12 Cal.4th 186 and People v. Flannel (1979) 25 Cal.3d 668, superseded by statute on another point as stated by In re Christian S., supra, 7 Cal.4th at page 773. While appellants correctly note that the defendants in those cases engaged in numerous illegal or wrongful acts (Barton, supra, at pp. 202-203; Flannel, supra, at pp. 673-674), neither opinion addresses whether CALJIC No. 5.17 is a correct or complete statement of the law. "It is axiomatic that cases are not authority for propositions not considered." (People v. Gilbert (1969) 1 Cal.3d 475, 481-482, fn. 7.)

Appellants also correctly note that the challenged portion of the instruction is not included in CALCRIM No. 571, the new standard instruction on imperfect self-defense. The fact that this language was omitted, however, does not compel the conclusion that it was an incorrect statement of the law. The language of the new instruction is different in other regards as well. In redrafting the instruction, the Committee on Standard Jury Instructions did not include any comments indicating that the prior instruction was incorrect or incomplete. Moreover, "jury instructions . . . are not themselves the law, and are not authority to establish legal propositions or precedent. . . . At most, when they are accurate, . . . they restate the law." (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7; People v. Salcido (2007) 149 Cal.App.4th 356, 366.)

In any event, any error in giving the instruction was plainly harmless. This type of instructional error is akin to error in failing to instruct on a lesser included offense. (See People v. Blakeley (2000) 23 Cal.4th 82, 93.) In noncapital cases, such error is subject to the standard of review enunciated in People v. Watson, supra, 46 Cal.2d at page 836. As we have already explained, the evidence adduced at trial did not support appellants' claims of perfect or imperfect self-defense. It is therefore not reasonably probable that the result would have been more favorable to appellants had the jury not been given CALJIC No. 5.17.

V.

CALJIC No. 5.55

Appellants also claim that the court erred in giving CALJIC No. 5.55, which provides that "[t]he right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense" because the instruction did not apply. Appellants contend the instruction was essentially an "invitation to the jurors to indulge a temptation to deny the right of self-defense, or even the mitigation of imperfect self-defense, to gangsters, whose very regimen and principles, if [gang expert] Adrian Parga is correct, impel them to seek out violent and volatile confrontations." We disagree.

The trial court had a duty to instruct the jury on legal principles that applied to the evidence presented in the case (see People v. Anderson (1989) 210 Cal.App.3d 414, 422), and there was substantial evidence from which the jury could find that appellants confronted their victims with the intent to create a need to defend themselves (People v. Welch (1982) 137 Cal.App.3d 834, 841). The jury was also instructed to "[d]isregard any instruction which applies to facts determined by you not to exist." Appellants identify nothing indicating that the jury did not follow this instruction and instead "indulge[d] a temptation" to categorically reject self-defense simply because appellants were gangsters. (People v. Avila(2006) 38 Cal.4th 491, 574 ["We presume the jury followed the court's instructions"].)

VI.

CALJIC No. 2.51

Appellants also argue that the court erred in instructing the jury on motive by giving CALJIC No. 2.51, which provides: "Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty." They assert that the jury may have applied this instruction in determining the truth of the gang enhancement allegations, and that in doing so failed to hold the prosecution to its burden of proving the truth of those allegations beyond a reasonable doubt. According to appellants, "[t]he phrase 'for the benefit of' [in section 186.22] seems to suggest the broader considerations that come within the concept of 'motive'; on the other hand, the language of the statute expressly uses the term 'specific intent,' while such phrases as 'at the direction of' and 'in association with' seem mechanical and colorless, tending more toward the concept of intent rather than motive."

This contention is meritless. The challenged instruction expressly refers to the "the crime charged," and the jury was instructed to determine the truth of the gang enhancement beyond a reasonable doubt. (CALJIC No. 17.24.2.) There is nothing in the record suggesting that the language of the challenged instruction somehow led the jury to disregard the plainly stated burden of proof, or to confuse motive with intent.

Appellants' citation to People v. Maurer (1995) 32 Cal.App.4th 1121, is unavailing. In Maurer, the defendant was convicted of misdemeanor child annoyance under section 647.6. To prove the mental state element of that offense, the prosecution had to show that the defendant's conduct was motivated by an unnatural or abnormal sexual interest. (Id., at pp. 1126-1127.) The jurors were told by one instruction that the conduct must be "motivated" by an unnatural or abnormal sexual interest, while they were also instructed pursuant to CALJIC No. 2.51 that "motive" was not an element of the charged crime and need not be proven in order to find the defendant guilty. (Ibid.) The Court of Appeal reversed on the ground that the conflicting instructions effectively removed the issue of the required mental state from the jury's deliberations. (Ibid.) Here, motive was not an essential element of the gang enhancement allegation. The jury was instructed it had to find that appellants' crimes were "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." ( 186.22, subd. (b)(1), italics added.) The jury was further instructed that each element of the enhancement allegation had to be proven beyond a reasonable doubt. Because "the instructions as a whole did not refer to motive and intent interchangeably[,] [w]e find no reasonable likelihood that the jury understood those terms to be synonymous. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1135 [distinguishing Maurer where intent to rape was an express element of the charged offense, while motive was not].)

VII.

Alleged Cunningham Error

Cisneros contends that the trial court imposed the upper term on the assault with a firearm count and the related firearm enhancement in violation of Cunningham v. California, supra, 127 S.Ct. 856.^[7] We disagree.

We reject the People's claim that Cisneros forfeited this claim by failing to raise it in the trial court. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) The claim, however, lacks merit.

In Cunningham v. California, the United States Supreme Court, in reliance on principles established in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Blakely v. Washington (2004) 542 U.S. 296, concluded that California's Determinate Sentencing Law (DSL) violates the right to a jury trial because "under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." (Cunningham v. California, supra, 127 S.Ct. at pp. 863-864.) The court recognized that for purposes of the Sixth Amendment, the middle term under the DSL is the maximum term that may be imposed solely on the basis of the jury's verdict. (Id., at p. 868.) There are, however, two exceptions to this rule: "First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury's verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]" (People v. Sandoval, supra, 41 Cal.4th at pp. 836-837, italics added.)

The first exception applies here. In its sentencing memorandum, the prosecutor cited numerous aggravating factors warranting imposition of the upper term on all of the counts, including that the crimes involved great violence and that Cisneros had engaged in a pattern of violent conduct indicating a serious danger to society (Cal. Rules of Court, rules 4.421(a)(1) & (b)(1)). With regard to the assault on Johan Matus, the prosecutor noted that he was "an unarmed boy" who "was shot in the knee and suffered permanent bone damage. The gunshot wound permanently stunted his growth and prompted surgery to his uninjured knee to make it even with the injured knee." In response, Cisneros submitted his own sentencing memorandum in which he admitted that these circumstances in aggravation were present, while he objected to the other aggravating circumstances identified in the prosecution's memorandum. Cisneros went on to argue that "[a]pplying the California Rules of Court reveals that the Circumstances in Mitigation and Aggravation would seem to be equal," and he urged the court to impose concurrent sentences.

Because Cisneros admitted these facts in aggravation, his Sixth Amendment right to have a jury find those facts to be true was not implicated. Moreover,

"if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.'" (People v. Black (2007) 41 Cal.4th 799, 813, fn. omitted.) The court therefore did not violate the Sixth Amendment by sentencing Cisneros to the upper term on the assault count and the related enhancement.

VIII.

Section 12022.7 Enhancement

Acedo contends, and the People concede, that the evidence is insufficient to support the jury's true finding on the great bodily injury enhancement ( 12022.7) on his conviction for assaulting Matus with a deadly weapon because it is undisputed that Cisneros fired the shot that hit Matus. The trial court, however, struck the enhancement at sentencing, and it is not referred to in the abstract of judgment. Because the court effectively corrected the error, no modification of the judgment is necessary.

The judgments are affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

William Birney, Judge

Superior Court County of Los Angeles

______________________________

Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant Cisneros.

Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant Acedo.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1]Further statutory references are to the Penal Code, unless otherwise indicated.

^[2] It was also determined that the other 10 casings and the bullets recovered from Gonzalez and Matus were fired from a 9-millimeter Luger handgun that was never recovered.

^[3] The jury was instructed as follows: "Evidence has been introduced for the purpose of showing street gang activities, and of criminal acts by gang members, other than the crimes for which the defendants are on trial. [] Except as you will be instructed otherwise, this evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with the criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members. [] For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in this case. [] You are not permitted to consider such evidence for any other purpose."

^[4] Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

^[5] Because we reject all of Cisneros's claims of error, his cumulative error claim necessarily fails.

^[6]Three days after the jury rendered its verdicts in this case, the CALCRIM instructions became "the official instructions for use" in criminal trials. (Cal. Rules of Court, rule 2.1050(a), formerly rule 855.)

^[7] Cisneros does not take issue with the fact that the trial court failed to provide an express statement of its reasons for imposing the upper terms, as required by section 1170, subdivision (c). We therefore assume it is reasonably probable that the result would be no different if the court had been reminded to state its reasons on the record, i.e., that the court would have expressly based its decision on the aggravating circumstances identified in the probation report and the parties' sentencing memorandums. (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684, 1688; People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638-1640.)