P. v. Fisher

Filed 7/22/10 P. v. Fisher CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jerry E. Johnson, Judge. Modified and, as so modified, affirmed.

John L. Staley, 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, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Ronald Fisher appeals from the judgment entered following a jury trial that resulted in his conviction for second degree robbery with use of a firearm. Fisher was sentenced to a prison term of 45 years to life.

Fisher contends: (1) the evidence was insufficient to establish the Penal Code section 186.22^[1]gang enhancement; (2) the trial court committed instructional error in regard to the gang enhancement; (3) his motion to bifurcate the gang allegations was improperly denied; (4) identification evidence should have been suppressed because a pretrial photographic lineup was unduly suggestive; (5) the evidence was insufficient to establish the great bodily injury allegation; (6) the trial court erred by refusing to instruct on the defense of accident; (7) the trial court erred by failing to conduct a hearing into purported juror misconduct and by denying Fishers new trial motion; and (8) the one-year section 667.5, subdivision (b) enhancement must be stricken. We order the one-year enhancement stricken. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The robbery.

On November 4, 2007, at approximately 10:15 p.m., Jose Cruz was pulling his pickup truck into his Los Angeles apartments parking lot. Fisher and co-defendant Solomon Windom approached Cruzs truck. Fisher was holding a small, chrome-plated pistol. Cruz put his truck in reverse and attempted to drive away, but was unable to exit the driveway. When Cruz stopped the truck, Fisher placed the gun to Cruzs head and ordered Cruz to give him the money or he would kill him. Fisher was approximately two feet away from Cruz. Cruz pushed the gun away, fearing that Fisher was about to shoot. Fisher shot Cruz in the right forearm. Cruz said,  Wait. Wait. I have the money.  Cruz gave Fisher his wallet. Fisher gave the wallet to Windom and told him to check it. Windom confirmed,  Yes, the moneys here.  Fisher said,  Lets go,  and the duo ran from the scene. The police were summoned.

Cruz identified Fisher in a pretrial photographic lineup, as well as at trial. Laquita Steele, who was at Cruzs apartment building at the time of the robbery, described the incident to police and identified Windom as the man who took the money.^[2] Jenifer Edwards, a resident in the apartment complex, heard the front gate slam, looked out her window, and observed Windom. Shortly thereafter, she observed Fisher holding a gun. She then heard a gunshot and saw a flash, and saw Windom take Cruzs wallet. Edwards identified Fisher as the shooter and Windom as the second man at trial and in a pretrial photographic lineup.

b. Gang evidence.

The parties stipulated that Fisher was a member of the Colden Avenue Boys, a criminal street gang within the meaning of section 186.22, subdivision (b). Officers Jose Reyes and Melvin Hernandez testified as gang experts, as follows. The Colden Avenue Boys gang had eight members and a distinctive hand sign, and was affiliated with the Crips. The gangs primary activities were robberies, narcotic sales, drive-by shootings, and the possession of illegal weapons. Fisher had a tattoo indicating his gang allegiance. Fishers gang moniker was Ron Ron.

The parties also stipulated that Windom was a member of Young Hustlers, a sub clique of the Eastside Hustlers, a criminal street gang within the meaning of section 186.22, subdivision (b). One of the gangs primary activities was the commission of robberies. The gang was affiliated with the Crips. The Eastside Hustlers had approximately 60 members, and the Young Hustlers sub clique had approximately 10 members.

The Cruz robbery occurred in territory claimed by the Eastside Hustlers gang. The Eastside Hustlers and the Colden Avenue Boys had become allies and their members had been seen and identified together. Because the Colden Avenue Boys had only eight members, they had formed an alliance with the Eastside Hustlers to protect themselves against a common rival, the Main Street Crips. Typically, gang members increase their status within the gang by committing crimes, such as robberies or drive-by shootings.

When given a hypothetical based upon the evidence and the prosecutions theory of the case, Reyes opined that the robbery was committed for the benefit of the Colden Avenue Boys. He explained that by virtue of the robbery, the gang member from the smaller gang is either trying to get initiated into the bigger gang[,] trying to impress the bigger gang and definitely benefiting his smaller gang by proving that he can put in work, street vernacular meaning youre going to go out, commit crimes. Youre not afraid to pull the trigger, [not] afraid to beat somebody down. Further, the member of the smaller gang is definitely benefiting his gang by gaining the respect as well as the alliance of the bigger gang. A shooting like the one in the instant case sends out a message and intimidates the community, letting them know that [i]ts no longer safe to come home at night. Finally, carrying a gun increases a gang members status within the gang. Reyes explained: If you are carrying the firearm, youre somebody in the gang. Not just anybody gets to carry a gun in a gang. Reyes also opined that the charged robbery was committed in association with another gang member.

2. Procedure.

Trial was by jury. Fisher was convicted of second degree robbery ( 211). The jury further found Fisher personally used, and personally and intentionally discharged, a handgun during commission of the offense, proximately causing great bodily injury to Cruz ( 12022.53, subds. (b), (c), (d)); that a principal was armed during commission of the offense ( 12022, subd. (a)(1)); and Fisher committed the offense for the benefit of, at the direction of, or in association with, a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members ( 186.22, subd. (b) & 12022.53, subd. (e)). Fisher admitted suffering one serious or violent felony ( 667, subds. (a)(1), (b)-(i) & 1170.12, subds. (a)-(d)) and serving a prior prison term within the meaning of section 667.5, subdivision (b). The trial court denied Fishers motion for a new trial, brought on the ground of juror misconduct. It sentenced Fisher to a prison term of 45 years to life. It imposed a restitution fine, a suspended parole restitution fine, a court security assessment, and a criminal conviction assessment. Fisher appeals.

DISCUSSION

1. Issues related to the criminal street gang enhancement.

Fisher makes several contentions aimed at reversal of the criminal street gang enhancement, including that (1) the evidence was insufficient to prove he committed the crime to benefit a criminal street gang; (2) the evidence was insufficient to show he committed the crime with the intent to promote other criminal activity by gang members; and (3) the trial court misinstructed the jury on the gang enhancement. He also contends that the trial court erred by denying the defense motion to bifurcate the trial of the gang enhancement, an error he asserts requires reversal of his conviction as well as the enhancements. We address these contentions seriatim.

a. The evidence was sufficient to support the criminal street gang enhancement.

(i) Standard of review.

When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine  whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Carrington (2009) 47 Cal.4th 145, 186-187.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal for insufficient evidence is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.) Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] [Citation.] (People v. Zamudio, supra, at pp. 357-358; People v. Kraft, supra, at pp. 1053-1054.)

(ii) The evidence was sufficient to prove the crime was committed in association with a criminal street gang.

Section 186.22, subdivision (b)(1) provides in pertinent part: [A]ny person who is 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 shall be subject to additional punishment as further defined in section 186.22, subdivision (b). ( 186.22, subd. (b)(1); see also People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Martinez (2008) 158 Cal.App.4th 1324, 1329; People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Not all crimes committed by gang members fall within the ambit of section 186.22, subdivision (b), however. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 661-663 & fn. 7; People v. Ramon (2009) 175 Cal.App.4th 843, 853; In re Frank S. (2006) 141 Cal.App.4th 1192, 1195.)

It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. (In re Frank S., supra, 141 Cal.App.4th at p. 1196; People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) However, a gang experts testimony alone is insufficient to find an offense gang related. (People v. Ochoa, supra, 179 Cal.App.4th at p. 657; People v. Ferraez, supra, at p. 931.) [T]he record must provide some evidentiary support, other than merely the defendants record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] (People v. Ochoa, supra, at p. 657; People v. Martinez (2004) 116 Cal.App.4th 753, 762.)

Here, it is questionable whether the evidence was sufficient to prove the robbery was committed for the benefit of a criminal street gang. It is true that the crime occurred in gang territory, Fisher and Windom were gang members, and robbery was one of the primary activities of both the Colden Avenue Boys and the Eastside Hustlers. However, nothing about the crime itself suggested it was committed for the benefit of a criminal street gang. Neither robber referenced the gang, threw gang signs, or issued gang challenges. Neither robber was dressed in gang attire. The crime was not committed against a rival gang member. No evidence suggested the money received was to be given to or used by either defendants gang. There was no evidence Cruz was targeted because either gang had a dispute with him. There was no evidence either robber wished to retaliate against or intimidate Cruz on behalf of the gang. There was no evidence that either defendant bragged about the crime or used it to intimidate residents in the neighborhood. There was no evidence either defendant had gained stature in the gang by virtue of the robbery. (See generally People v. Ochoa, supra, 179 Cal.App.4th at p. 662.) Moreover, this was not the type of seemingly random or mindless crime that can be explained only by reference to a gang-related motive; robberies are often committed by non-gang members simply for pecuniary gain.

As noted, the gang expert testified that a member of a smaller gang who commits a crime with a gang member from a larger gang is either trying to get initiated into the bigger gang [or] trying to impress the bigger gang and definitely benefiting his smaller gang by proving that he can put in work, street vernacular meaning youre going to go out, commit crimes. However, the expert offered no evidentiary support for his supposition. No facts were presented to show this particular robbery was carried out as an initiation, or to cement the alliance between the two gangs. Without evidentiary support, the experts testimony was purely speculative. While the [expert] testified that the [crime] could benefit defendants gang in a number of ways, he had no specific evidentiary support for making such inferences. (People v. Ochoa, supra, 179 Cal.App.4th at p. 662.) An appellate court cannot affirm a conviction based on speculation, conjecture, guesswork, or supposition. (Id. at p. 663; People v. Ramon, supra, 175 Cal.App.4th at p 851.) Without evidentiary support for his conclusions, the expert merely informed the jury of how he felt the case should be resolved. (People v. Ramon, supra, at p. 851.) Under similar circumstances, appellate courts have found the evidence insufficient to support a finding a crime benefited a gang. (See, e.g., id. at
pp. 851-853; People v .Ochoa, supra, at pp. 661-665; People v. Albarran (2007) 149 Cal.App.4th 214, 227; In re Frank S., supra, 141 Cal.App.4th at pp. 1196-1999.)

However, under section 186.22, subdivision (b), it is not necessary to show the crime was committed to benefit the gang if it is shown that the crime was committed inassociation with the gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198; People v. Martinez, supra, 158 Cal.App.4th at pp. 1331-1332.) Morales is instructive. There, the defendant was convicted of robbery and attempted robbery with gang enhancements. He committed the crimes with two other gang members. Morales rejected the argument that the evidence was insufficient to satisfy section 186.22, subdivision (b). Morales explained: Defendant argues that reliance on evidence that one gang member committed a crime in association with other gang members is circular . . . . Not so. Arguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. Thus, the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members. (People v. Morales, supra, at p. 1198.)

Here, the evidence was undisputed that Fisher was a member of the Colden Avenue Boys and Windom was a member of the Eastside Hustlers, both criminal street gangs. Both gangs were affiliated with the Crips, and had become allies, banding together for protection from a common enemy, the Main Street Crips. The gang expert had spoken to several officers and determined that members of the two gangs had been stopped and identified together. Moreover, the robbery was committed in the territory of the Eastside Hustlers, and, as noted, robbery was a primary activity of both gangs. There was no evidence suggesting the duo was on a frolic unrelated to the gang. Thus, the evidence was sufficient to prove the crime was committed in association with a criminal street gang. (People v. Morales, supra, 112 Cal.App.4th at p. 1198; see also People v. Leon (2008) 161 Cal.App.4th 149, 163 [where evidence showed the defendant committed crimes in association with . . . a fellow gang member, there was sufficient evidence defendant committed the offenses in association with any criminal street gang ]; People v. Martinez, supra, 158 Cal.App.4th at p. 1332 [Defendant, who admitted membership in King Kobras, committed the crimes with Garcia, another admitted member].)

Fisher argues that the in association with language in section 186.22, subdivision (b) requires something more than simply two gang members committing a crime together. He posits that the phrase suggests there must be a relationship between the individuals that is rooted in their gang affiliation. But even if Fishers interpretation is correcta conclusion we do not necessarily acceptsuch a relationship existed here. As noted, the crime was committed in the territory of the Eastside Hustlers; robbery was a primary activity of both gangs; and the two gangs had become allies to strengthen their gangs. Under these circumstances, the evidence sufficiently demonstrated a relationship rooted in the defendants gang affiliation. In sum, the evidence was sufficient to establish Fisher committed the robbery in association with a gang.

(iii) The People were not required to prove that the robbery promoted other criminal activity by gang members.

Fisher next challenges the sufficiency of the evidence to prove the intent element of the gang enhancement. Relying on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 (Briceno), and the majority opinion in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), Fisher urges that the intent element was unproven because the crimes were not committed to facilitate criminal acts other than the robbery itself. In his view, evidence is insufficient to prove a gang enhancement unless the People establish the gang members intended to promote other criminal conduct by gang members, independent from the underlying crime. We disagree.

In Garcia, the defendant gang member robbed the victim in the heart of the gangs territory. (Garcia, supra, 395 F.3dat p. 1103.) During the robbery he identified himself by gang and moniker. A divided panel of the Ninth Circuit concluded this evidence was insufficient to support the gang enhancement. (Ibid.) Garcia explained, there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. (Ibid.) Neither the facts of the crime nor the experts testimony established what criminal activity of the gang was furthered or intended to be furthered by the robbery . . . . (Ibid.)

In Briceno, two gang members robbed four persons on Christmas day. Following the reasoning in Garcia, Briceno concluded the evidence was insufficient to prove the requisite intent to establish the gang enhancement. (Briceno, supra, 555 F.3d at p. 1082.) Briceno held the specific intent requirement requires some evidence, aside from a gang experts generic testimony and the fact of the defendants gang membership, supporting an inference the defendant committed the crime with the specific intent to facilitate other criminal conduct by the [gang]. (Id. at p. 1079.) Briceno acknowledged that Garcia had been rejected by People v. Hill (2006) 142 Cal.App.4th 770 and People v. Romero (2006) 140 Cal.App.4th 15. However, Briceno reasoned that the California Supreme Court has not yet ruled on the issue, and would likely follow the Ninth Circuits reasoning in Garcia rather than the reasoning of the California appellate cases. (Id. at pp. 1079-1082.)

People v. Vazquez (2009) 178 Cal.App.4th 347, explained why Briceno and Garcia are not persuasive. Vazquez reasoned that section 186.22, subdivision (b) refers not to other criminal activity, but to any criminal activity, a phrase broad enough to encompass the [charged crime] and the many other crimes regularly committed by the gangs members. (People v. Vazquez, supra, at p. 353.) While our Supreme Court has not yet reached this issue, numerous California Courts of Appeal have rejected the Ninth Circuits reasoning. As our colleagues noted in People v. Romero[, supra, 140 Cal.App.4th at p. 19]: By its plain language, the statute requires a showing of specific intent to promote, further, or assist in any criminal conduct by gang members, rather than other criminal conduct. [Citation.] Thus, if substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members. (People v. Vazquez, supra, at pp. 353-354.) Vazquez reject[ed] the Ninth Circuits attempt to write additional requirements into the statute. It provides an enhanced penalty where the defendant specifically intends to promote, further, or assist in any criminal conduct by gang members. [Citation.] There is no statutory requirement that this criminal conduct by gang members be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing. (Id. at p. 354.)

Fisher acknowledges that Briceno and Garcia have not been embraced by California courts, but urges us to adopt their reasoning nonetheless. We decline to do so. Garcia and Briceno, of course, are not binding on this court. (People v. Hill, supra, 142 Cal.App.4th at p. 774 [intermediate federal authority is not binding in matters involving state law].) We find the reasoning of the California appellate courts that have considered the question persuasive, and adopt it here. Because substantial evidence established that Fisher is a gang member, who intended to commit the robbery in association with Windom, an allied gang member, the jury fairly could infer he intended for his crime to promote, further or assist criminal conduct by gang members. (People v. Vazquez, supra, 178 Cal.App.4th at pp. 353-355; People v. Romero, supra, 140 Cal.App.4th at pp. 19-20; People v. Hill, supra, at p. 774 [intent requirement was satisfied by defendants own criminal threat, which qualified as the gang-related criminal activity]; see also People v. Ochoa, supra, 179 Cal.App.4th at p. 661, fn. 6.) The evidence was sufficient.

b. The trial courts instruction on the gang enhancement was not erroneous.

In a related argument, Fisher contends the trial court erred by failing to instruct the jury that, in order to find the gang enhancement true, it had to find Fisher intended his commission of the robbery would promote other criminal conduct by the gang. This omission, he posits, deprived him of his rights to due process and a jury determination of the facts. Fishers argument is premised on the notion, rejected in the preceding section, that such a finding is an element of the section 186.22, subdivision (b) enhancement. As we have concluded the People are not required to prove the defendants intent to promote other criminal conduct, we necessarily reject Fishers claim of instructional error for the reasons set forth ante.

c. The trial court did not abuse its discretion by denying Fishers motion to bifurcate the gang enhancement.

Prior to trial, the defendants moved to bifurcate trial of the gang allegations from the substantive charge. The record suggests that a portion of the parties arguments to the court and discussion of the issue transpired during an unreported conference. On the record, the trial court observed that the People had made an offer of proof that there would be testimony concerning an attempt to gain admission into whatever gang this involves. The prosecutor clarified: The evidence thats going to be coming out with respect to the gang expert of this particular gang, is that this is how they operate, this is how they do things. [] And through witness testimony, theyre going to be testifying . . . that Mr. Fisher was in that gangs territory immediately after this crime was committed, also hes been seen hanging out in that area before with the people that claim that area. The trial court found the gang evidence, though prejudicial, was probative on the issue of motive, and denied the motion.

In People v. Hernandez (2004) 33 Cal.4th 1040, our Supreme Court considered the propriety of bifurcating gang allegations. Hernandez first compared the issue to the bifurcation of prior conviction allegations. The court observed that because of the unique prejudice that may ensue if a jury learns of a defendants prior convictions, the value of bifurcating trial of those allegations has been recognized by the Legislature and the courts. (Id. at pp. 1048-1049.) On the other hand, the Legislature has given no indication of a similar concern regarding enhancements related to the charged offense, such as a street gang enhancement. Nothing in section 186.22 suggests the street gang enhancement should receive special treatment of the kind given [to] prior convictions. (People v. Hernandez, supra,at p. 1049.) Hernandez observed that the trial of gang enhancement allegations differs from that of prior conviction allegations. A prior conviction allegation relates to the defendants status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. (Id. at p. 1048.)

Hernandez clarified: This is not to say that a court should never bifurcate trial of the gang enhancement from trial of guilt. . . . The predicate offenses offered to establish a pattern of criminal gang activity ( 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendants actual guilt. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Where a gang enhancement is not at issue, evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal, unless, as is often the case, such evidence is relevant to prove identity, motive, modus operandi, specific intent, and the like. (Ibid.) When a gang enhancement is charged, a unitary trial is permitted even if some of the expert testimony would not have been admitted at a trial limited to guilt. (Id. at p. 1051.) Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itselffor example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is chargeda court may still deny bifurcation. (People v. Hernandez, supra, at p. 1050.) Hernandez left the decision whether to bifurcate gang enhancement allegations to the trial courts discretion, observing that the trial courts discretion to deny bifurcation is broader than its discretion to admit gang evidence when no gang enhancement is alleged. (Ibid.) The burden is on the defendant to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (Id. at p. 1051.)

Fisher contends the trial court abused its discretion and violated his due process rights by denying the motion to bifurcate. He argues that the gang evidence in the instant case was highly prejudicial, yet lacked probative value because the robbery could have been proven without evidence relating to his and Windoms gang membership. As discussed ante, during commission of the robbery, neither defendant referenced their gangs. Instead, the key issue at trial was the identity of the robbers.

Admittedly, the prosecutors arguments that the evidence would show this is how they operate, this is how they do things, and that Fisher was seen in the gangs territory, were not particularly compelling. Evidence that the crime was committed so that Fisher, or the Colden Avenue Boys, could obtain admittance to the Eastside Hustlers gang would have been quite probative on the issue of motive; however, as we have discussed, the gang experts testimony in this regard amounted to little more than speculation. Nonetheless, while we consider the question to be close, we conclude there was no abuse of discretion and no violation of Fishers due process rights. Gang enhancements were charged on the crimes, found true by the jury, and supported by substantial evidence. Evidence that Fisher and Windom were members of two gangs that had recently allied was at least somewhat probative on the issue of identity: the evidence explained why these two individuals would commit a crime together, and therefore bolstered the witness identifications. (See generally People v. Champion (1995) 9 Cal.4th 879, 922 [evidence that defendants were members of the same gang as other persons involved in the commission of the crimes in this case fortified the testimony of the persons who identified defendants as participants in the murders].)

Fisher did not establish any of the gang evidence was so extraordinarily prejudicial that it threatened to sway the jury to convict regardless of actual guilt. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) The gang evidence presented here, discussed ante, was not extraordinarily inflammatory. The predicate crimes were introduced by means of stipulation, and the underlying evidence related to those crimes was not detailed. Nothing suggests that the nature of the predicate crimes, or defendants own gang involvement, was so extraordinarily prejudicial that the trial courts denial of the bifurcation motion was arbitrary, capricious, or patently absurd. (See generally People v. Lewis (2009) 46 Cal.4th 1255, 1286.) We therefore discern no abuse of discretion in the trial courts decision. (People v. Hernandez, supra, at pp. 1050-1051.)

2. The pretrial photographic lineup was not unduly suggestive.

a. Additional facts.

Prior to trial, Fisher moved to suppress Cruzs out-of-court identification of him, as well as any subsequent in-court identification, on the grounds the six-pack photographic lineup Cruz viewed was unduly suggestive. The trial court conducted an Evidence Code section 402 hearing, at which the following testimony was adduced. Prior to being shown any photographs, Cruz described the shooter as a male Black, approximately 20 years old, with a thin build, wearing a white T-shirt and dark pants. He did not notice that the shooter had any physical oddities. The day after the robbery, an officer showed Cruz a six-pack photographic lineup, and gave Cruz the standard admonitions regarding photographic identifications. After viewing the photographs for approximately one minute, Cruz identified Fisher as the shooter.

At the Evidence Code section 402 hearing, defense counsel showed Cruz the six-pack lineup and asked whether he noticed anything odd about the subject in position No. 3, i.e., Fisher. The following exchange transpired:

[Cruz]: . . . It seems to me the hair.

[Defense counsel]: Okay. Anything else that seems odd to you?

[Cruz]: No.

[Defense counsel]: You dont notice anything strange about that photograph?

[Cruz]: No.

[Defense counsel]: Okay. What about his eyes?

[Cruz]: No. The eyes are the same.

[Defense counsel]: Does one eye look like it is lower than the other?

[Cruz]: Yes.

[Defense counsel]: And its very noticeable, isnt it?

[Cruz]: Yes. I did notice that.

[Defense counsel]: And does anybody else in the photograph have a defect like that?

[Cruz]: I--when he was pointing with the gun, pointing at me with the gun, I saw that defect. Cruz did not recall whether he told police the shooter had an eye defect. Defense counsel asked whether Cruz had mentioned the eye misalignment to the officer when he viewed the photographic lineup. Cruz stated, Yes. But I dont recall.

Defense counsel argued that in the photographic lineup, Fishers photograph stood out because his eyes were misaligned. Counsel opined that a fair lineup could not be conducted unless police found five other people with the same exact physical oddity. Otherwise its just a foregone conclusion that youre going to select the person with the abnormal birth defect. The prosecutor countered that the subject in position six also appeared to have misaligned eyes. Further, because Cruz never mentioned an eye defect, police would have had no reason to select photographs of other persons with eye problems.

The trial court denied the motion to exclude. It found Fisher had not shown, as a demonstrable reality, that the photographic lineup was unduly suggestive. The court observed that the photographs included six male Blacks with similar skin tones. Three wore white T-shirts, and three wore black T-shirts. The court observed that in addition to subject No. 6, the subject in photograph No. 1 might also have had something wrong with his right eye. The court observed that the officer who prepared the photographs had no basis to focus on misaligned eyes, because Cruz never mentioned this feature prior to being shown the photographs. Further, the court opined that Fishers eye issue was not particularly prominent or noticeable. Based on its observation of Fisher in the courtroom from a distance of approximately eight or nine feet, the court noted that it was difficult to discern any defect, explaining, Im hard pressed to say as I look at him right now that its noticeable that one eye is lower than the other. . . . If you asked me right now is one eye lower than the other Id say no. The court opined that one eye looked somewhat lower than the other in the photograph due to the tilt of Fishers head. It concluded the lineup was not unduly suggestive. In any event, the court concluded, the photographic lineup was reliable under the totality of the circumstances. Cruz had not indicated his identification of Fishers photograph was due to the appearance of the eyes.

b. Discussion.

Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable. (People v. Avila (2009) 46 Cal.4th 680, 698; People v. Yeoman (2003) 31 Cal.4th 93, 123; Manson v. Brathwaite (1977) 432 U.S. 98, 106-114; People v. Cunningham (2001) 25 Cal.4th 926, 989.) A pretrial identification procedure is unfair if it suggests in advance the identity of the person the police suspect of the crime. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) The question is not whether there were differences between the lineup participants, but whether anything caused defendant to stand out from the others in a way that would suggest the witness should select him. (People v. Avila, supra, at p. 698; People v. Carpenter (1997) 15 Cal.4th 312, 367, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106; People v. Yeoman, supra, at p. 124; People v. Cunningham, supra, at p. 990.) An identification procedure is sufficiently neutral where the subjects are  similar in age, complexion, physical features and build . . . [citation]. (People v. Leung (1992) 5 Cal.App.4th 482, 500; People v. Wimberly (1992) 5 Cal.App.4th 773, 789-790.) [T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspects photograph is much more distinguishable from the others in the lineup. (People v. Brandon, supra, at p. 1052; People v. Carpenter, supra, at
p. 367.)

The defendant bears the burden of demonstrating the identification procedure was unreliable. (People v. Gonzalez (2006) 38 Cal.4th 932, 942.) Unfairness must be proved as a demonstrable reality, not just speculation. (People v. Cook (2007) 40 Cal.4th 1334, 1355.) A due process violation occurs only when the identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Ibid.) We review the trial courts findings of fact deferentially, but independently review the trial courts ruling that a pretrial identification procedure was not unduly suggestive. (People v. Avila, supra, 46 Cal.4th at pp. 698-699; People v. Gonzalez, supra, at p. 943.)

People v. Gonzalez, supra, 38 Cal.4th 932, is instructive. There, the defendant claimed that a photographic lineup was unduly suggestive because (1) he was the only subject wearing gang-type clothing; (2) he had a droopy eye in the photograph; and (3) his photograph was discolored. (Id. at p. 943.) The California Supreme Court rejected his contentions, explaining nothing about any of the photographs suggested that the defendants picture should be picked over the others. Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to stand out from the others in a way that would suggest the witness should select him. [Citation.] Here, nothing in the lineup suggested that the witness should select defendant. . . . We cannot discern any significant distinctiveness about defendants eye. In any event, none of the witnesses described the gunman as having a distinctive eye, so any distinctiveness in the photograph would not suggest the witness should select that photograph. Moreover, it would be virtually impossible to find five others who had a similar eye and who also sufficiently resembled defendant in other respects. [Citation.] (Id. at p. 943; see also People v. Smith (1980) 109 Cal.App.3d 476, 487 [It is questionable whether the mere fact that the defendant was the only person in the photographs with a bad eye was improperly suggestive, as it represents only one of many physical characteristics of a face which could be readily identifiable].)

The same is true here. The photographic lineup was not unduly suggestive. It consists of photographs of six different men, including Fisher. All are Black, have similar complexions, and appear to be about the same age. Fishers photograph does not stand out as distinctively different than the other photographs. Nothing about Fishers photograph suggests he was the person police suspected of the crime. Cruz did not indicate he selected Fishers photograph because of the eye abnormality. In fact, at the Evidence Code section 402 hearing, Cruz did not discern anything unusual about the photograph until repeatedly lead to do so by defense counsel. The fact Fishers photograph accurately depicted his appearance, including his eyes, cannot, by itself, amount to unconstitutional suggestiveness. In any event, we do not discern anything particularly distinctive about Fishers eyes in the photograph. The trial court, observing Fisher in person, found it difficult to discern any misalignment. The trial courts observations, and Cruzs failure to see anything unusual in the photo until pressed by counsel, demonstrate the photo lineup was not unduly suggestive.

People v. Carlos (2006) 138 Cal.App.4th 907, cited by Fisher, is readily distinguishable. In Carlos, the photographic lineup was suggestive where the defendants name and identification number were placed directly under his photograph, but the same information was not included below the other photographs. The court concluded: The problem with the six-pack is obviousit is not just that Carloss name and an identification number are printed on the front of the form, it is that they are printed directly below his picture. . . . Although the name placement is not quite an arrow pointing to Carlos, it is plainly suggestive. (Id. at p. 912.) The instant matter is entirely unlike Carlos. Here, nothing was added to the photo array to point an arrow at Fisher, and nothing about the composition of the lineup draws special attention to Fishers photograph. The fact Fishers photograph accurately depicted his appearance, including his eyes, does not, on the facts presented here, amount to unconstitutional suggestiveness.

Because there was no constitutional defect in the photographic lineup, Cruzs in-court identification was not tainted and neither the pretrial nor the trial identifications of Fisher were required to be excluded. Because we conclude the photographic lineup was not unduly suggestive, we need not reach the question whether Cruzs identifications were nevertheless reliable. (People v. Gonzalez, supra, 38 Cal.4th at p. 942; People v. Yeoman, supra, 31 Cal.4th at p. 125.)

3. The evidence was sufficient to establish the great bodily injury enhancement.

The jury found Fisher personally and intentionally discharged a firearm, proximately causing great bodily injury to Cruz, within the meaning of section 12022.53, subdivision (d). This finding was the basis for a 25-years-to-life sentence enhancement. Fisher contends the evidence was insufficient to establish that the gunshot wound he inflicted on Cruz constituted great bodily injury, and therefore the true finding must be reversed and the enhancement stricken. Applying the standard of review governing our analysis of a sufficiency of the evidence claim, set forth ante, we disagree.

Great bodily injury means a significant or substantial physical injury. [Citations.] (People v. Cross (2008) 45 Cal.4th 58, 63; see also People v. Escobar (1992) 3 Cal.4th 740, 749-750; People v. Miller (1977) 18 Cal.3d 873, 883, disapproved on other grounds in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.) The California Supreme Court has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. [Citations.] Where to draw that line is for the jury to decide. (People v. Cross, supra, at p. 64, italics added.) To be considered significant or substantial, the injury need not be so grave as to cause disfigurement, impairment, loss of bodily function, or permanent, prolonged, or protracted bodily damage. (People v. Escobar, supra, at p. 750.) The injury need not meet any particular standard of severity or duration, but need only be a substantial injury beyond that inherent in the offense itself[.] (People v. Le (2006) 137 Cal.App.4th 54, 59; People v. Escobar, supra, at pp. 746-747, 750.)

Here, Cruz was shot in the forearm. Cruz was treated by paramedics at the scene, who rush[ed] to get him to the hospital. The wound caused a lot of bleeding, so much so that Cruzs arm was covered in blood. Edwards related that neighbors called an ambulance for Cruz because he was  bleeding . . . real bad.  Cruz was treated at the hospital. The following day, Cruz was unable to write easily because of the pain. The bullet wound left a scar, which Cruz displayed for the jury. Under these circumstances, we conclude the evidence was sufficient. (See People v. Lopez (1982) 131 Cal.App.3d 565, 572-573; People v. Miller, supra, 18 Cal.3d at p. 883,)

Fisher advances several arguments in support of his argument to the contrary, none persuasive. He contends that Cruzs gunshot wound did not constitute great bodily injury because it appears [he] was grazed by the bullet. This mischaracterizes the record. As discussed, Cruz clearly testified he was shot in the arm, not merely grazed. Moreover, it seems unlikely paramedics would have rushed to get him to the hospital, had the bullet only grazed his arm. Fisher further argues the bullet wound did not amount to great bodily injury because a scar could result from a minor wound; blood loss could stem from a minor injury; and without a photograph of the injury, [t]here is no way this Court can determine the victim suffered great bodily injury based on this record. Fisher confuses the role of an appellate court with that of the jury. His argument amounts to a request that we reweigh the evidence on appeal. This is not the function of an appellate court. (Evid. Code, 312; People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Maury (2003) 30 Cal.4th 342, 403; People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) Finally, he argues that Cruzs gunshot wound was not as profound or as disabling as gunshot wounds found in other cases to constitute great bodily injury. (See, e.g., People v. Le, supra, 137 Cal.App.4th at pp. 57-58; People v. Mendias (1993) 17 Cal.App.4th 195, 201; People v. Lopez (1986) 176 Cal.App.3d 460, 465.) The fact more, different, or stronger evidence may have been present in other cases does not establish the evidence was insufficient here; each case must be considered on its own facts. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1010.)

4. The trial court did not prejudicially err by refusing to instruct on accident.

Fisher requested that the jury be instructed on the defense of accident. The relevant instruction, CALCRIM No. 3404, provides that the defendant is not guilty of a specified crime if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of [the specified crime] unless you are convinced beyond a reasonable doubt that he . . . acted with the required intent. (See People v. Villanueva (2008) 169 Cal.App.4th 41, 53.) Fisher argued that there was substantial evidence to support the instruction, because the gun might have fired accidentally when Cruz attempted to push the gun away. The trial court suggested that multiple inferences could be gleaned from Cruzs testimony, including that Fisher accidentally pulled the trigger while he and Cruz were jostling with the gun. Nonetheless, the court refused to give the instruction, concluding that the evidence was insufficient to support it. Fisher contends this was error. He posits that from the evidence, the jury could have concluded the gun fired accidentally, and therefore the defense of accident was applicable to the section 12022.53 firearm enhancements, though not the robbery charge. The omission of the instruction, he contends, requires reversal of the section 12022.53, subdivisions (c) and (d) enhancements.^[3]

A trial court must instruct the jury, upon request, on any theory of defense that is supported by substantial evidence. (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806; People v. Maury, supra, 30 Cal.4th at p. 424; People v. Salas (2006) 37 Cal.4th 967, 982.) In determining whether an instruction is required, we do not determine the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas, supra, at p. 982.) A court is not obliged to instruct on theories that lack substantial evidentiary support. (People v. Manriquez (2005) 37 Cal.4th 547, 587-588; People v. Bohana (2000) 84 Cal.App.4th 360, 370.) Substantial evidence is evidence that a reasonable jury could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102; People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) We independently review a trial courts alleged error in failing to instruct on a defense. (People v. Sisuphan, supra, at p. 806; People v. Oropeza, supra, at p. 78.)

Under section 26, paragraph Five, no crime is committed where the person who committed the charged act or omission did so through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence. The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime. [Citation.] (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) The burden is on the defendant to establish the absence of evil design, intention and culpable negligence. (People v. Thurmond (1985) 175 Cal.App.3d 865, 871.)

The People argue that the instruction was inapplicable because there was no showing Fisher acted without an evil design. The People explain: Appellant argues that the accident and misfortune instruction should have applied to the gun enhancements. But the instruction does not apply if appellants underlying conduct (even without the enhancements) was criminal. In short, a robber who carries a loaded gun and places it on the victims head is not entitled to an accident [and] misfortune instruction when the gun fires. (Italics in original.)

The People cite no authority for their position, and People v. Jones (1991) 234 Cal.App.3d 1303, suggests the contrary. In Jones, the evidence showed the defendant armed himself with a shotgun and accompanied a friend to remove the power steering column from a supposedly abandoned car. En route, the duos car was pulled over by a deputy sheriff. When the sheriff repeatedly asked for Joness identification, Jones pulled the shotgun out and pointed it at the deputys head. The deputy attempted to knock the shotgun barrel away. At that moment, the gun discharged, striking the deputy in the arm, wrist, and chest. (Id. at pp. 1308-1309.) When arrested shortly thereafter, Jones said, I didnt mean to shoot him. (Ibid.) Jones also testified at trial that the shooting was an accident. (Id. at p. 1314.)

After his conviction for attempted murder and related firearm enhancements, Jones contended on appeal that the trial court had erred by failing to instruct, sua sponte, on the defense of accident and misfortune. Jones concluded there was sufficient evidence adduced at trial from which a juror could have concluded the firearm discharged by accident, and the trial court therefore erred by not giving an accident instruction. The error, however, was harmless. (People v. Jones, supra, 234 Cal.App.3d at p. 1314.) Jones did not expressly consider the question of the defendants evil design, but implicit in its holding is the proposition that accident is a potential defense even when a gun is unlawfully pointed at a victim, if there is evidence the gun discharged accidentally.

The People also argue, and the trial court found, that there was no substantial evidence to support an accident instruction. Indeed, the only evidence in the record was that Fisher pointed the gun at Cruz during the robbery and Cruz attempted to move the gun by pushing it away from his head. During cross examination, Cruz agreed that he reached up with his right hand and grabbed the gun, and there was a struggle for a bit. This evidence of accident was minimal at best. Unlike in Jones, Fisher did not testify that the shooting was an accident, and there was no evidence of any statement by Fisher suggesting the shot was accidental. Moreover, after the gun discharged, Fisher did not behave in a manner suggesting he was surprised or upset by the gunshot. Instead, he calmly continued with commission of the robbery.

Assuming arguendo that this evidence was substantial enough to warrant an inference that the shooting was an accident, we discern no prejudice under any standard. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 28; People v. Gonzales, supra, 74 Cal.App.4th at p. 391.) An accident instruction would have added little to the instructions already given. Both CALCRIM Nos. 3148 and 3149 informed jurors that in order to find the section 12022.53 subdivision (c) or (d) enhancements true, the People had to prove: 1. The defendant personally discharged a firearm during the commission or attempted commission of the crime; [] AND [] 2. The defendant intended to discharge the firearm. (Italics added.) CALCRIM No. 252 advised jurors that in order to find the enhancement allegations true, the defendant must not only commit the prohibited act . . . but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on
purpose . . . . (Italics added.) During closing argument, Fishers counsel urged that the jury could find Fisher personally used a gun, but accidentally fired it.^[4]

From the instructions given, highlighted by counsels argument, any reasonable juror would have understood that the section 12022.53, subdivisions (c) and (d) allegations could be found true only if the People proved Fisher shot intentionally, i.e., on purpose. The accidental firing of a gun is a readily understood, commonsense notion, and jurors would have fully understood from the instructions given that if the gun fired accidentally, the enhancements could not be found true. The jury made express findings on the firearm enhancements that Fisher personally and intentionally discharged a firearm, indicating it rejected the theory that the gun discharged accidentally. (See People v. Jones, supra, 234 Cal.App.4th at pp. 1314-1315 [failure to instruct on accident defense harmless where other proper instructions adequately guided the jury in reaching the relevant factual determination].)

Although Fisher argues that the failure to give an accident instruction prevented the jury from having any basis to evaluate that defense and thus deprived appellant of federal due process of law, this argument is without substance. It is unreasonable to assume the jury concluded Fisher had liability for the discharge of the gun merely because he was using it in the commission of a crime. The instructions given did not allow for any such inference. [W]e must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.] (People v. Richardson(2008) 43 Cal.4th 959, 1028.)

Martin v. Ohio(1987) 480 U.S. 228, cited by Fisher, likewise does not assist him. In Martin, the United States Supreme Court held that the burden of proving self-defense could be placed on the defendant. (Id. at p. 233.) The court noted [i]t would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt