P. v. Loaiza

Filed 1/9/09 P. v. Loaiza CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed, as modified, in part; reversed in part and remanded for resentencing.

Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant Loaiza.

Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant Reyes.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

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Ronald Anthony Loaiza and Hercules Bernardo Reyes appeal from judgments entered following a jury trial in which they were convicted of first degree murder, attempted murder, assault with a firearm, and possession of a firearm by a felon. They raise numerous contentions, including sufficiency of the evidence, and evidentiary, instructional, and sentencing error. We reverse the gang enhancement findings for insufficiency of evidence and remand for resentencing, but otherwise affirm.

FACTS

Early in the evening of November 1, 2005,^[1]Reyes fatally shot Robert Castro, and Loaiza shot Anthony Salas, who survived his wound. The shootings occurred in front of Salas house in La Puente.

Salas had lived in the house for about three years as of November 1. Salas cousins Christina and Gilbert Gonzalez had lived in the same house for at least three months before November 1. Castro, who was Christinas boyfriend and Salas friend, was released from prison on November 1. Castro had only been at the house for about ten minutes when the shooting occurred.

Salas, Castro, Reyes, and Loaiza all knew one another and appeared to be friends. They all belonged to the Puente gang, albeit to different cliques. On November 1, their cliques got along with one another. Loaiza and Castro belonged to the Tinflanes clique, while Reyes belonged to the Ballista Street clique. Salas had been jumped out of the Dial Boulevard clique a few months before the charged offenses. Prior to November 1, Salas considered both defendants to be his friends. He had experienced no problems with either defendant and had not heard of any problems between Castro and either of the defendants.

Salas cousin, Francine Ruiz, sometimes brought Reyes over to Salas house to visit. Ruiz and Reyes had visited Salas at the house just a week before November 1. Loaiza testified he had also visited with Salas and Christina at the house a week or two before November 1.

Salas testified he and Castro were outside the house, behind the garage, when Reyes and Loaiza arrived on November 1. Everyone shook hands, and Reyes hugged Castro. Reyes asked Castro how he had been, then everyone sat quietly. Reyes hugged Castro again. Salas asked Reyes how he had fit an inflatable bounce house into his trunk for a birthday party a few days earlier. Reyes complained that it broke his trunk and said, Come on, check it out. All four men went out to the street, where Reyes opened his car trunk to show them it would not stay open.

Reyes then said to Castro, Check out my car. Reyes got into the drivers seat and Castro got into the front passenger seat. Someone turned up the volume on the radio, then Salas heard a gunshot inside the car. He looked through the car window and saw Reyes holding the grip of a handgun and Castro holding its barrel, struggling with Reyes. Salas heard Castro say, What the fuck? Salas immediately looked at Loaiza, who was about 18 feet away from him.^[2] Loaiza lifted his sweater, pulled out a revolver, and pointed it at Salas head. Salas stood still, put his hands in the air, and said, No. Loaiza aimed a little lower and pulled the trigger. The shot struck Salas a little below his stomach and passed through his body. Salas ran to the back of the house. As he ran, he heard about four more shots from the vicinity of Reyes car.

Christina Gonzalez testified she was inside the house and heard gunshots, but did not see the shooting. She denied knowing defendants and seeing anyone arrive at the house after she brought Castro home. Gilbert Gonzalez testified he was inside the house when he heard a gunshot and his sister screaming. He did not see anyone arrive after Christina and Castro. Detective Marc Verlich testified that Gilbert admitted he was outside when defendants arrived and told Salas that Reyes was there.

The prosecution theorized the motive for defendants actions was revenge for the murder of their cousin, Gabriela Santini, on August 8, 2004.^[3] Detective Steven Kays testified he was involved in the investigation of Santinis murder. Castro was a suspect and was detained and interviewed in connection with that crime. Reyes mother testified Santini was her niece and defendant Reyes cousin. Upon learning of Santinis death, Reyes was hurt, but neither Reyes nor his mother had heard Castro might have been responsible. Loaiza testified Santini was also his first cousin, and they had an extremely close relationship. A few days after Santinis death, Loaiza got an In Memory of Gabby tattoo. Loaiza heard Castro may have killed Santini. Before the detectives showed him photographs, Loaiza did not know Santini had been shot in the head multiple times.

Loaiza testified, however, that Castro was also his cousin and his close friend, whom he loved. Castro was the leader of Loaizas clique and talked Loaiza into joining the gang. Castro was a high-ranking member of the gang. Salas was also his friend.

Loaiza testified that he and Reyes were also related, in that they were both related to Santinis parents. Before November 1, however, Loaiza had not seen Reyes for five or six years.

On the afternoon of November 1, Loaiza, along with his girlfriend, daughter, and brother, were at a house located about four blocks from Salas house. They planned to go from there to the home of Loaizas mother in Fullerton. Reyes arrived at that house just as Loaiza and his family were about to leave. As Reyes and Loaiza were talking, Christina Gonzalez drove past with Castro in the car. Castro waved and threw a gang sign. Loaiza was unaware Castro was out of prison. Loaiza anticipated that Gonzalez and Castro were headed for Salas house, where Gonzalez had been living. Loaiza had been to Salas house many times. At Loaizas suggestion, he and Reyes got in Reyes car and drove to Salas house to greet Castro. Loaizas girlfriend, daughter, and brother left in Loaizas car. On cross-examination, Loaiza testified he assumed Reyes would either drive him home to Alhambra or back to the house where they met.

When they arrived at Salas house, Castro, Salas, and Christina were standing together in the area between the front door and the garage. Loaiza and Reyes joined them. Loaiza hugged Castro and shook Salas hand. Everyone had a friendly conversation. Salas walked toward the street and everyone walked along with him while talking. Although Loaiza was leery of Castro due to the rumors about his involvement in Santinis death and Castros authority in the neighborhood, Loaiza did not keep an eye on Castro before the shot was fired. He did not see Castro get into Reyes car. Loaiza and Salas were standing no more than three feet apart, talking about Halloween. Loaiza was surprised to hear a gunshot. He wondered where it came from and whether someone was shooting at him, but did not look to see whether Castro was shooting. Loaiza pulled out his revolver, extended his arm, and aimed at Salas head. Salas raised his hands and took a step toward Loaiza. Loaiza did not see a gun in Salas possession. Nonetheless, Loaiza lowered his aim and pulled the trigger about twice from a distance of no more than three feet. Loaiza denied he intended to shoot Salas, and insisted he was trying to shoot at Salas feet to scare him to prevent him from coming forward. Without knowing whether either of his shots struck Salas, Loaiza turned and ran. He discarded his gun in a gutter as he ran, then called his girlfriend to pick him up.

Loaiza denied he and Reyes ever discussed killing Castro. Reyes never said he was going to take out Castro. Loaiza also denied he was angry with Castro, planned to ask Castro about Santini,^[4]ever thought about attempting to kill or injure Salas, or did anything to assist Reyes in shooting Castro. Loaiza was carrying a .38 caliber revolver at the time for self-protection and to protect his family. He explained his family was fearful because no one knew who murdered Santini. Also, he grew accustomed to carrying a gun as a gang member. Loaiza did not know whether Reyes was armed.

In a November 4 interrogation, Loaiza said the word on the street was that Castro killed Santini or they got caught in crossfire. The police implied Castro killed Santini. Loaiza said, I wish I could say I did shoot him, but I didnt shoot him. At trial, Loaiza explained he said that because the police were showing him gory photographs of Santini and telling him Castro had killed her. At that moment he felt that way, but he did not shoot Castro or plan to help Reyes kill him.

Loaiza and Reyes were tried together, with a single jury. The jury convicted each defendant of first degree murder, attempted murder, possession of a firearm by a felon, and assault with a firearm. With respect to each defendant, the jury found the attempted murder was willful, deliberate, and premeditated, and the murder, attempted murder, and assault with a firearm were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (Pen. Code, 186.22, subd. (b)(1)).^[5] The jury further found that, in the commission of the attempted murder, Loaiza personally and intentionally fired a gun, causing Salas great bodily injury; personally and intentionally fired a gun; and personally used a gun. ( 12022.53, subds. (b), (c), and (d).) It found, with respect to Loaiza, that in the commission of the murder, a principal personally and intentionally fired a gun, causing Castros death; personally and intentionally fired a gun; and personally used a gun. ( 12022.53, subds. (b), (c), (d), and (e)(1).) The jury also found that in the commission of the assault with a firearm, Loaiza personally used a gun ( 12022.5, subd. (a)), and personally inflicted great bodily injury on Salas ( 12022.7, subd. (a)). The jury found that in the commission of the murder, Reyes personally and intentionally fired a gun, causing Castros death; personally and intentionally fired a gun; and personally used a gun. ( 12022.53, subds. (b), (c), and (d).) With respect to Reyes, the jury found that in the commission of the attempted murder, a principal personally and intentionally fired a gun, causing Salas great bodily injury; personally and intentionally fired a gun; and personally used a gun. ( 12022.53, subds. (b), (c), (d), and (e)(1).)

Each defendant waived a jury trial on prior conviction and prior prison sentence allegations. The court found Loaiza had one prior serious or violent felony conviction within the scope of the Three Strikes Law ( 667, subds. (b)-(j), 1170.12) and one prior serious felony conviction within the scope of section 667, subdivision (a)(1). The court further found Loaiza served a prior prison term within the scope of section 667.5, subdivision (b). The court found Reyes had two prior serious or violent felony convictions within the scope of the Three Strikes Law and one prior serious felony conviction within the scope of section 667, subdivision (a)(1), and that he served a prior prison term within the scope of section 667.5, subdivision (b).

The trial court sentenced Loaiza to 136 years and 4 months to life in prison. For murder (count 1), the court imposed a second strike term of 50 years to life, plus 25 years to life ( 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(5)), plus 5 years ( 667, subd. (a)(1)), for a total of 80 years to life. For attempted murder (count 2), the court imposed a second strike consecutive term of 30 years to life, plus 25 years to life ( 12022.53, subd. (d)), for a total of 55 years to life. For possession of a firearm by a felon (count 3), the court sentenced Loaiza to a consecutive 16-month term, also as a second strike. The court stayed, pursuant to section 654, a 23-year, second strike term for assault with a firearm (count 5).

The trial court sentenced Reyes to 201 years to life. For murder (count 1), the court imposed a third strike term of 75 years to life, plus 25 years to life ( 12022.53, subd. (d)), plus 5 years ( 667, subd. (a)(1)), plus 1 year ( 667.5, subd. (b)), for a total of 106 years to life. For attempted murder (count 2), the court imposed a third strike consecutive term of 45 years to life, plus 25 years to life ( 12022.53, subds. (d), (e)(1)), for a total of 70 years to life. For possession of a firearm by a felon (count 4), the court imposed a third strike consecutive term of 25 years to life. The court stayed, pursuant to section 654, a 35-year, third strike term for assault with a firearm (count 5).

DISCUSSION

1. Sufficiency of evidence

Defendants contend the evidence was insufficient to support their convictions for murder and attempted murder; the finding the attempted murder was willful, deliberate, and premeditated; and the findings presumably with respect to counts 1, 2, and 5 that the crimes were committed 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.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the convictions and findings, so that a reasonable jury could find guilt beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment the jury could reasonably deduce from the evidence. (Peoplev.Barnes (1986) 42 Cal.3d 284, 303.)

a. Murder

Defendants argue there was insufficient evidence of premeditation and deliberation to support their first degree murder convictions.^[6]

Premeditation requires that the act be considered beforehand. Deliberation requires careful thought and weighing of considerations for and against the act. (Peoplev.Mayfield (1997) 14 Cal.4th 668, 767.) The extent of the reflection, not the length of time, is the true test. (Ibid.) These processes can occur very rapidly, even after an altercation or transaction is under way. (Ibid.; Peoplev.Sanchez (1995) 12 Cal.4th 1, 34 (Sanchez).)

Three types of evidence that typically support a finding of premeditation and deliberation are planning activity, a prior relationship with the victim or conduct from which a motive could be inferred, and a manner of killing from which a preconceived plan could be inferred. (Peoplev.Anderson (1968) 70 Cal.2d 15, 26-27.) However, these categories are not prerequisites, they are simply guidelines to assist reviewing courts in assessing whether the evidence supports an inference that the killing (or attempted killing) resulted from pre-existing reflection and weighing of considerations, rather than an unconsidered or rash impulse. (Sanchez, supra, 12 Cal.4th at pp. 32-33.)

The record includes ample circumstantial evidence of planning-type activity by defendants. They went together to Salas house, and each was armed with a loaded gun. Salas and Loaiza both testified that defendants and the victims had a pleasant, even fond, meeting and conversation. Nothing indicates that Castro, Salas, or anyone else did or said anything to create hostility or provoke a violent attack. Nonetheless, defendants engaged in coordinated conduct, without additional communication between themselves, that ended in two shootings. First, defendants lured Castro away from the house, in which there were several other people, including Christina and Gilbert Gonzalez and at least two of Christinas children. Reyes then isolated Castro and made him more vulnerable and harder to observe by inducing him to get into the car. This increased Castros vulnerability by restricting his freedom of movement, placing him in very close quarters with Reyes, and reducing the ability of those in the house or neighborhood to see or prevent what Reyes was about to do. The jury could also reasonably infer that it was Reyes who turned up the volume on the car stereo just before shooting Castro, and that this was done to attempt to mask the sound of the gunshot. Salas testimony demonstrates that Loaiza was not surprised when Reyes shot Castro, but immediately drew his own gun and aimed it straight at his friend Salas. Loaiza did not express surprise or confusion or look around to see where the shot came from. He aimed at and shot his friend who was unarmed and had not provoked any violent reaction. The jury could reasonably infer that the shooting was planned by Loaiza and Reyes, and Loaiza was performing his role in the plan.

The manner of the shooting also reflects planning. After Reyes lured Castro into a position of vulnerability, he shot Castro at very close quarters, which created a high likelihood of inflicting a mortal wound.

Finally, the record includes evidence of a strong motive capable of uniting defendants to act against Castro: revenge for Santinis murder. Santini was a cousin to both defendants and both were upset by her murder. Loaiza admitted he was extremely close to Santini and had heard Castro may have been responsible for her murder.

Defendants base their arguments, in part, upon imperfections in their plan and alternative explanations for various points, such as the reason they carried guns. However, the sufficiency of the evidence issue must be resolved by viewing the evidence in the light most, not least, favorable to the judgment.

Loaiza also contends there was insufficient evidence to support his liability as an aider and abettor because he did not commit any act that assisted Reyes in murdering Castro.

A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating or encouraging commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime. (Peoplev.Prettyman (1996) 14 Cal.4th 248, 259; Peoplev.Beeman (1984) 35 Cal.3d 547, 561.) The same criminal liability attaches whether a defendant directly perpetrates an offense or aids and abets the perpetrator. (Pen. Code, 31; Peoplev.Montoya (1994) 7 Cal.4th 1027, 1038-1039.)

Loaiza carried a concealed and loaded weapon and accompanied Reyes to Salas house. He moved to the street area with Reyes and the intended victims, and stood near the car, watching Salas, while Reyes shot Castro. Loaiza then immediately aimed his loaded gun at Salas and shot him. Reasonable jurors could infer Loaiza assisted Reyes in the commission of Castros murder by (1) providing armed back-up to overcome potential resistance by Castro and/or any witness who might attempt to interfere with the plan or defendants safe escape from the scene, and (2) intimidating or harming witnesses to the crime who might identify defendants and testify against them.

Although Loaiza does not expressly challenge the evidence of his intent, we note the evidence of planning to support a finding of premeditation and deliberation also demonstrates that defendants developed and executed a plan to kill Castro. Loaizas participation in that plan amply demonstrates his intent to facilitate Castros murder.

Accordingly, we conclude substantial evidence supports defendants first degree murder convictions.

b. Attempted murder

Reyes challenges the sufficiency of the evidence to establish his liability as an aider and abettor in the attempted murder of Salas. He argues the attempted murder was not a reasonably foreseeable consequence of a plan to shoot Castro as a matter of internal gang discipline.

An aider and abettor is guilty not only of the offense he or she intended to facilitate or encourage (the target crime), but also of any other crime committed by the person he or she aids and abets that is the natural and probable consequence of the target crime. (People v. Prettyman, supra, 14 Cal.4th at p. 261.) An aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed and need not have the specific intent otherwise required for the offense committed. (Ibid., Peoplev.Croy (1985) 41 Cal.3d 1, 12, fn. 5.)

A particular criminal act is a natural and probable consequence of another criminal act if, under all of the circumstances presented, a reasonable person in the defendants position would or should have known the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (Peoplev.Nguyen (1993) 21 Cal.App.4th 518, 531.) Whether the act committed was the natural and probable consequence of the act encouraged and the extent of defendants knowledge are questions of fact for the jury. (Peoplev.Durham (1969) 70 Cal.2d 171, 181.)

Reyes and Loaiza both knew Salas and others lived at the house. Each defendant had visited Salas and Christina Gonzalez at the house within the two weeks before November 1. The crimes occurred in the early evening hours. It was therefore reasonably foreseeable Salas and other people would be at the house and in the neighborhood. The neighborhood was claimed by the Puente gang, of which Castro, just released from prison, was a high-ranking member. Salas testified everyone knew Castros release date, and the jury could disbelieve Loaizas denial he knew it. Accordingly, it was reasonably foreseeable Salas, other residents of the house, neighbors, and perhaps other members of the gang would be present to welcome Castro home from prison. Given the gang connections, it was also reasonably foreseeable some of those present would be in possession of, or have ready access to, firearms. It was thus reasonably foreseeable people other than Castro would be around to witness the murder and some of them might use their own guns to attempt to protect Castro, retaliate against Reyes, or prevent Reyes and Loaiza from escaping. It appears at least part of Loaizas role in the plan was to deal with witnesses, and he carried a loaded weapon to do so. Under all of these circumstances, a reasonable person in Reyes position would or should have known that shooting a witness, such as Salas, was a reasonably foreseeable consequence of Loaizas participation in the plan to shoot Castro at Salas house. Reyes was not required to foresee the shooting of Salas, as opposed to any other person who witnessed the crime.

Moreover, the same evidence that supports an inference defendants both acted pursuant to a pre-existing plan makes Reyes liable as an aider and abettor without resort to the natural and probable consequences doctrine.

Accordingly, substantial evidence supports Reyes liability as an aider and abettor for the attempted murder of Salas.

c. Finding attempted murder was willful, deliberate, and premeditated

Defendants argue there was insufficient evidence of premeditation and deliberation with respect to the attempted murder of Salas. Reyes argues a premeditated attempt to kill Salas was not a reasonably foreseeable consequence of a plan to kill Castro, and the evidence was therefore insufficient to establish his liability as an aider and abettor.

As with the murder, the record includes substantial circumstantial evidence supporting the finding the attempted murder was willful, deliberate, and premeditated. Defendants coordinated conduct without additional communication between themselves after they arrived at Salas house and the immediacy and certainty of Loaizas action after Reyes shot Castro constitute ample circumstantial evidence that defendants planned to shoot witnesses. In particular, Loaiza expressed no surprise, uncertainty, or hesitancy before aiming and firing his gun directly at his unarmed, unresisting, unmoving friend Salas, who raised his hands, as if surrendering.

The manner of the shooting also reflects premeditation and deliberation. Loaiza modified his aim from Salas head to his torso, which presented a larger and easier target, especially at a distance of about 18 feet.

The evidence also presented a clear motive for killing Salas or any other witness, i.e., to prevent them from identifying defendants and testifying against them. With respect to Salas, in particular, the motive was even stronger. Detective Kays testified a former member who left the gang, as Salas had, would be viewed as a weak person. In addition, Salas knew defendants well and could readily identify them.

Viewing the evidence in the light most favorable to the judgment, substantial evidence supported a reasonable conclusion that an aspect of defendants plan to shoot Castro was that Loaiza would carry a loaded gun and, if necessary, fire it at witnesses to prevent them from foiling the plan, retaliating, blocking defendants escape, or being able to identify defendants and testify against them. This supported the jurys findings that the attempted murder of Salas was willful, deliberate, and premeditated.

d. Gang enhancement findings

Penal Code section 186.22, subdivision (b), provides a sentence enhancement for anyone 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. Subdivision (f) of section 186.22 defines criminal street gang as an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in  subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. Section 186.22, subdivision (e) lists numerous crimes, including homicide, assault with a deadly weapon, burglary, shooting at an inhabited dwelling, and sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture, controlled substances. The attempted commission of such offenses also falls within subdivision (e) of section 186.22.

Defendants contend, inter alia, the evidence did not establish that the offenses in this case were committed for the benefit of, at the direction of, or in association with a criminal street gang. We agree.

The only evidence arguably supporting the gang enhancement consisted of the gang membership of defendants and the victims and Detective Kays responses to the prosecutors lengthy and detailed hypothetical questions:

Q. Now, if you had a member from the Tinflanes clique of Puente and a member of the Ballista clique of Puente go together to a location, and one of them shoots another member of the Tinflanes gang and kills him, and that location is in Tinflanes territory, do you have any opinion as to whether or not that crime is done in association with or for the benefit of the Puente gang?

A. Yes.

Q. What is your opinion?

[Counsel for Reyes]: Objection. Lack of foundation.

The Court: Overruled.

The Witness: My opinion, as you stated, that youve got three gang members, one from Tinflanes, one from Ballista, who are allies, that shoot and kill a Tinflanes gang member in the middle of the area, my opinion is that theyre sending a very strong message to the rest of the gang that, number one, where it occurred, it occurred in their neighborhood, where theres a certain amount of safety expected.

Maybe they were righting a wrong; thats speculation on my part. They felt that they had to carry out this assault or what they call regulate. Regulate is something that they will put members of their gang in check. If theyve done something wrong, if theyve committed a crime thats brought negative light on the gang, if theyve done something for any reason that brings negative light on the gang, the gang is going to turn on that member. The regulation can range anywhere from a simple battery or a beating, to murder.

[] []

Q. Okay. Stay with that same scenario of the Tinflanes and Ballista guys going over to that location in Tinflanes territory, one of them shoots and kills the other Tinflanes member, Tinflanes victim, and thats actually the Ballista clique member shoots and kills the Tinflanes member, and then the Tinflanes suspect shoots and hits someone who had previously been from the Dial Street clique but who a couple of months beforehand had been jumped out of the gang.

Does that add any helpful information to you as to whether or not this was done to benefit the gang?

A. Yes. The fact that theres another individual there from Dial who is kind of an on again/off again alliance with Tinflanes and Ballista, if that individual has been jumped out with the gang culture --

If theres an individual present when this occurred that had been jumped out, theyve got no standing from the gang, theyve got no respect from the gang, and they are actually looked at as somebody, depending on the individual, but they could be viewed as being weak, that they didnt -- they werent down for the gang anymore. They wont be down for the lifestyle, they chose to get out, so they are going to have no free pass on something like this.

If they witnessing [sic] this occurring, they are not looked at as a gang member anymore. They are looked at as somebody less than even somebody from the public, somebody that got jumped out.

Q. So even if we were to assume that the Tinflanes victim, the one that was shot and killed, was the original target, and the other person, the ex-Dial Street member, just happened to be there, wrong place, wrong time, the act of shooting him would still be done, in your opinion, to benefit the gang for what reasons?

A. It would be the same reasons for shooting and killing the first individual. Its to send a message that were -- weve got no problem with killing one of our own.

And my opinion also is that they dont want to leave a witness. They dont want to leave someone there thats going to be able to identify who did the actual murder. So with them being jumped out, not being looked at as a fellow gang member, hes being looked at as someone less favorable. And obviously they dont want to leave someone there that can identify them.

Q. In your experience, how do these type of acts impact the surrounding community, including people that are not affiliated with any gang?

A. It makes it very difficult to investigate. Obviously we do have people that live in fear in these neighborhoods. They witness these things occurring. They know the individuals. They see them on a daily basis. We go and talk to them, investigate these crimes, and theyre scared to death. They dont want to talk to us. They will elect to keep the information to themselves rather than provide it to us so we can identify the individual and hopefully make an arrest.

On redirect examination, the prosecutor asked a more comprehensive version of his hypothetical questions:

Q. Let me ask you another hypothetical question with a few more details. [] Assuming that a Ballista member armed with a gun and a Tinflanes member armed with a gun go to a residence in the Tinflanes territory, and they go there to target another Tinflanes member who has just gotten out of prison that day. The Ballista member armed with a gun invites the Tinflanes member into his car. The Ballista member seated in the drivers seat, Tinflanes victim seated in the passenger seat, and outside the car in the area is the other Tinflanes suspect who came armed with a gun and a person would [sic] had just been jumped out a couple months earlier from the Dial Street gang.

Inside the car, the Ballista member pulls out a gun and shoots the Tinflanes member seated in the passenger seat. After that theres a struggle over the gun. Immediately the Tinflanes member who is outside the car then pulls out a gun from his waistband and shoots the person who had recently been jumped out of the Dial Street gang.

With those facts, do you have an opinion as to whether or not that crime would be for the benefit of the Puente gang?

A. Yes.

Q. How so?

A. The fact that they both arrive there together, both armed with handguns. It appears from that scenario there may have been a plan to set up that way to get the intended victim into the car. The other individual standing outside shooting the individual who had just been jumped out who has no -- is not in good standing with the gang is a potential witness that could identify them in the crime. My opinion would be that it would be for the benefit of their reputation and the reputation of their gang, that that would be a form of righting a wrong or regulating that Tinflanes gang member who was actually shot in the car.

Kays testimony regarding righting a wrong and regulating was inherently and expressly speculative. The prosecutor did not include in his hypothetical any mention of the murder victim wronging the perpetrators or the nature of such a wrong. More importantly, the record does not demonstrate that Salas or Castro had done anything the gang would want to regulate. Had Castro testified against another gang member, for example, Kays testimony would have some support in the record. Nothing, however, supports Kays speculation that the gang would want to regulate Castro for his rumored involvement in Santinis murder. Rather, revenge for Santinis death was a wholly personal -- not gang-related -- motive for the defendants. Nor is there any indication in the record that the gang actually sanctioned any of the charged crimes. Notably, no members of the gang other than Santinis relatives participated in the charged offenses.

The circumstances of the crime also fail to support a finding the defendants acted for the benefit of, at the direction of, or in association with any criminal street gang. The crimes did not occur in rival gang territory. The victims were members of the defendants own gang, not of a rival gang. Although the four men belonged to three different cliques, the cliques were not hostile to one another. Moreover, the men had bonds of blood and friendship. Neither defendant made gang hand signs or proclaimed the name of his gang or clique before, during, or after the shootings. As far as the record reveals, neither the defendants nor any other member of their gang took credit for the shootings, either verbally or in graffiti. Unlike a typical gang shooting in which the gang defends its turf or strikes a blow against a rival gang, the charged offenses bestowed no plausible benefit to defendants gang. Indeed, Castros murder cost the gang one of its high-ranking members, which would appear to be an undesirable consequence from the gangs viewpoint.

In short, nothing except implausible inferences and hypotheticals based upon speculation supported the gang enhancements. Two gang members acting in concert do not inevitably act for the benefit of, at the direction of, or in association with their gang every time they commit a crime. Defendants were on a frolic and detour unrelated to the gang (People v. Morales (2003) 112 Cal.App.4th 1176, 1198), not acting for the benefit of, at the direction of, or in association with the gang when they committed the charged offenses. Accordingly, the gang enhancement findings with respect to counts 1, 2, and 5 must be reversed.

We further conclude the gang allegations may not be retried. In People v. Seel (2004) 34 Cal.4th 535, the California Supreme Court determined that when a sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. (Id. at pp. 546-547, quoting from Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 [120 S.Ct. 2348].) Relying on Apprendi, the Seel court barred retrial of a premeditation finding supported by insufficient evidence because premeditation is an element of the crime of attempted murder and not a mere sentencing enhancement. (People v. Seel, supra, 34 Cal.4th at p. 550.)

A defendant is entitled to a jury trial on the elements of an enhancement statute such as Penal Code section 186.22. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) By parity of reasoning with People v. Seel, supra, 34 Cal.4th 535, further adjudication on the gang allegations is therefore barred under the doctrine of double jeopardy, and on remand the allegations must be dismissed.

2. Denial of motion to bifurcate gang enhancement allegations

Reyes timely moved to bifurcate trial of the gang enhancement allegations. He argued that because the prosecutions theory was that the motive for Castros murder was some sort of family-related revenge for Santinis murder, the gang aspects were irrelevant to the trial of the charges. He further argued the evidence supporting the gang enhancements would be unduly prejudicial. Loaiza joined in the motion.

The prosecutor explained the gang evidence was crucial to trial of the charged offenses because Castros murder was not simply a matter of familial revenge, but was also a gang taking care of business in-house. The prosecutor explained if it were simply a family matter, Loaiza would have been the one to shoot Castro, but in fact Reyes shot him. Neither defendant informed the court Reyes was also related to Santini. The court denied the motion, stating it appeared the gang evidence would be relevant to motive and would assist the jury in understanding the facts of the case.

Defendants contend the trial court erred by denying the motion to bifurcate the gang enhancement allegations. They argue the court did not have an accurate view of the facts because it did not know Reyes was also related to Santini. They suggest wrongdoing by the prosecutor in arguing a theory he should have had reason to suspect was wrong. Alternatively, Reyes argues his attorney rendered ineffective assistance by failing to inform the court he was also related to Santini.

A gang enhancement allegation differs from a prior conviction allegation in that it is attached to the charged offense and is, by definition, inextricably intertwined with that offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) The need to bifurcate a gang enhancement allegation is therefore far less than for a prior conviction allegation, and the trial court has broader discretion in determining whether to bifurcate a gang enhancement allegation than in making the same determination regarding a prior conviction enhancement allegation. (Ibid.) A defendant must clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (Id. at p. 1051, quoting People v. Bean (1988) 46 Cal.3d 919, 938.) We review the ruling for abuse of discretion in light of the showing made to the trial court and the facts then known, not in light of what happened at trial. (Peoplev.Musselwhite (1998) 17 Cal.4th 1216, 1244, 1246.)

The evidence of defendants and Castros gang membership was relevant to assist in establishing a motive for Castros murder. Although revenge for Santinis murder was a component of the prosecutions theory of motive, the complete theory was that the murder was a matter of internal gang discipline ultimately based, at least in part, upon Santinis murder. The prosecutor was entitled to put his complete theory of motive before the jury. This was especially true at the time defendants sought bifurcation, as it appears all counsel then believed only Loaiza was related to Santini. The gang discipline theory was thus an important part of the case the prosecution intended to present, as it provided a motive for Reyess participation. The prosecutions ultimate failure to introduce substantial evidence in support of the gang-related motive did not invalidate the trial courts ruling on the motion to bifurcate.

Defendants attempts to blame the prosecutor or Reyes counsel for failing to inform the court Reyes was also related to Santini fail because the record does not demonstrate either attorney knew of the relationship between Reyes and Santini.

Even considering the additional information that Reyes and Santini were related, denial of bifurcation was not an abuse of discretion. The prosecutor was entitled to prove his complete motive theory, of which gang discipline was an important aspect. This would have required admission of defendants and Castros gang memberships and expert testimony about the internal discipline theory. The cross-admissibility of at least that much of the gang evidence weighed heavily against bifurcation of the enhancement allegations, and defendants failed to clearly show a substantial danger of prejudice. They simply argued the case was not gang-related, and offered no reply to the prosecutors explanation of the gang motivation. Moreover, the gang evidence also proved to be relevant to Loaizas defense, in that he testified and argued he carried a loaded gun to the crime scene not because he was part of any plan to kill Castro, but because he wanted it for self-protection and had grown accustomed to carrying a gun when he was an active gang member. Loaizas explanation also potentially benefitted Reyes, in that he explained gang members commonly carried guns to defend themselves against members of rival gangs. Given the cross-admissibility of the evidence, the denial of the motion to bifurcate was not an abuse of discretion.

3. Admission of gang experts testimony

Reyes filed a motion in limine to limit or exclude expert testimony regarding gangs to the extent it predicted behavior of a gang member; constituted profile evidence; or pertained to whether each defendant had a role to play, knew the other defendant was armed, aided and abetted the other defendant, or was an active participant in a gang. Loaiza joined in the motion. At the hearing, Reyes indicated he was specifically concerned with testimony regarding theories of motive and aiding and abetting. The prosecutor represented he would not ask his expert to come up with a theory, but would ask about how gang members work together. The court declined to exclude or limit the gang testimony.

a. Detailed hypothetical questions embracing ultimate issues of fact

Defendants first contend that Kays responded to overly detailed hypothetical questions from the prosecutor that mirrored the facts of this case, and thereby improperly testified to ultimate issues of fact, such as motive, intent, and a plan to kill Castro.^[7]

Defendants objected to neither the form of the prosecutors questions nor the content of Kays answers. They therefore forfeited these claims. (Peoplev.Williams (1997) 16 Cal.4th 153, 208 (Williams).)

Even assuming defendants claims were preserved for review, they lack merit. The courts admission of evidence is reviewed only for abuse of discretion. (Williams, supra, 16 Cal.4th at p. 197.) A trial court has wide discretion to admit or exclude expert testimony. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Where, as here, a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Ibid. quoting Evid. Code, 801, subd. (a).) The gang expert may testify to an opinion based upon facts shown by the evidence and restated in a hypothetical question asking the expert to assume the truth of those facts. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) An expert may not, however, opine the defendant had particular knowledge or a specific intent. (Ibid.; People v.Garcia (2007) 153 Cal.App.4th 1499, 1513.) Specificity and detail in a hypothetical question asked of an expert do not convert an otherwise proper answer into a prohibited opinion regarding a defendants subjective mental state. (People v. Ward (2005) 36 Cal.4th 186, 209-210.) [T]here is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read [People v. Killebrew (2002) 103 Cal.App.4th 644] as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. (Gonzalez, supra,38 Cal.4th at p. 946, fn. 3.)

Despite the great specificity in the prosecutors hypothetical questions to Kays, the prosecutor never asked about defendants mental states, e.g., whether either defendant had particular knowledge or intent, or what motivated either defendant. All of the questions addressed hypothetical actors. Kays never testified regarding either defendants intent, motive, or knowledge. He instead testified if the facts stated in the hypothetical were true, the hypothetical actors would be acting for the benefit of the gang by sending a message, possibly righting a wrong or regulating a fellow gang member, and eliminating a witness. Similarly, with respect to gang intimidation of witnesses, the prosecutor did not ask about the mental state or motivations of Christina and Gilbert Gonzales, and Kays did not purport to testify they denied knowledge of the crimes because they had been intimidated. Kays instead testified generally about the reluctance of gang crime witnesses to talk to the police.

Furthermore, opinion evidence is admissible even if it encompasses the ultimate issue in the case. (Evid. Code, 805; Valdez, supra, 58 Cal.App.4th at p. 506.) There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. (Valdez, supra, 58 Cal.App.4th at p. 507, quoting People v. Wilson (1944) 25 Cal.2d 341, 349.) The opinion must not, however, invade the province of the jury to decide a case. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183.) Expert opinion regarding whether and how a crime would have been committed for the benefit of a gang has repeatedly been deemed admissible, despite its coincidence with an issue to be determined by the jury. (See, e.g., Garcia, supra, 153 Cal.App.4th at pp. 1513-1514; Valdez, supra, 58 Cal.App.4th at p. 509.) Such an opinion was not tantamount to an opinion of guilt or, in this case, that the enhancement allegation was true, for there were other elements to the allegation that had to be proved. (Valdez, supra, 58 Cal.App.4th at p. 509.)

The prosecutors hypothetical questions to Kays addressed a single element of the gang enhancement allegations, i.e., whether the crimes were committed in association with, or for the benefit of, the Puente gang. Kays did not provide an opinion on each element and did not testify that the enhancement allegation was true or that defendants were guilty of the charged offenses. The prosecutor was required to prove the remaining elements of the enhancement, as well as the elements of the charged offenses. The jury was permitted to draw its own inferences about defendants intent, motive, premeditation, deliberation, and the elements of the gang enhancement allegation. Furthermore, the jury was instructed it was not bound by an expert opinion, it could disregard any opinion it found to be unreasonable, the weight to be given an opinion was for the jury to decide, the facts of any hypothetical question were not necessarily true, and the prosecution had the burden of proving defendants guilty beyond a reasonable doubt. Under the circumstances, Kays opinion testimony did not infringe upon, much less usurp, the function of the jury.

b. Section 29

Defendants also contend Kays testimony violated section 29, which prohibits an expert witness who is testifying about a defendants mental illness, mental disorder, or mental defect from testifying as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged.

Defendants did not object on this ground in the trial court, and therefore forfeited any claim based upon section 29. Had they preserved the issue, however, it would have no merit, as Kays did not testify about either defendants mental illness, mental disorder, or mental defect.

c. Foundation

Defendants further contend Kays opinions lacked foundation. Defendants arguably preserved this claim with respect to Kays testimony in response to the prosecutors first hypothetical question.

In any event, the contention lacks merit. Kays testified he had been a gang investigator for the Sheriffs Department for 13 years, and he became aware of the Puente gang in the late 1980s when he was first assigned to the Sheriffs Industry substation. In the course of his work, he had become familiar with Puente members by detaining them, talking to them on the street, investigating crimes they committed, and arresting them. He estimated he had had contact with 100 to 150 Puente gang members, from various cliques. This training and experience constituted an adequate foundation for Kays expert testimony regarding gang culture, habits, attitudes, and behavior. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [officers investigations of gang cases, interviews with gang members and others, and review of police reports provided sufficient foundation for his expert testimony].)

d. Helpful to the jury

Defendants also contend Kays testimony was not helpful to the jury, which was capable of understanding the motives involved in the crime. Defendants did not object on this ground in the trial court, and therefore forfeited it. Even had the claim been preserved, it would lack merit. The culture, habits, and psychology of gangs are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Valdez, supra, 58 Cal.App.4th at p. 506, quoting Evid. Code, 801, subd. (a).) Although the jury could readily have understood the personal revenge motive for the crimes, the way in which the crimes purportedly benefitted the gang was far from obvious and was therefore a proper subject for expert testimony.

e. Predictive/profile evidence

Defendants further contend Kays testimony constituted improper predictive or profile evidence, i.e., testimony purporting to predict the defendants behavior based on matching behaviors. Although defendants raised this ground in their motion in limine, they did not object at trial and therefore forfeited their claim.

In any event, their claim has no merit. A profile ordinarily constitutes a set of circumstances -- some innocuous -- characteristic of certain crimes or criminals, said to comprise a typical pattern of behavior. Inprofile testimony, the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile. (People v. Prince (2007) 40 Cal.4th 1179, 1226.) Kays testimony did not refer to defendants, much less evaluate their behavior against a pattern or profile. He did not opine defendants were guilty of the charged offenses or the gang enhancements were true, either because defendants fit a profile or for any other reason.

f. Propensity evidence

Defendants contend Kays testimony regarding their gang membership, the gangs primary activities, and the predicate offenses was inadmissible propensity evidence. Defendants did not object on this ground in the trial court, and therefore forfeited it. Even if defendants preserved the claim, however, it would lack merit.

Although evidence of other offenses or misconduct is inadmissible to prove criminal propensity, it may be admitted to prove matters such as motive, intent, identity, etc. (Evid. Code, 1101, subds. (a), (b).) Here, Kays testimony regarding defendants gang membership, the primary activities and predicate offenses for the Puente gang, and his expert opinion testimony was relevant to attempt to prove the gang enhancement allegations. Moreover, Kays testimony regarding the primary activities and predicate offenses was not specific to either defendant and therefore had no tendency to imply they were predisposed to commit such crimes.

g. Evidence Code section 352

Defendants contend the gang evidence should have been excluded under Evidence Code section 352 because its slight probative value was substantially outweighed by the probability its admission would create a substantial danger of undue prejudice or jury confusion. Defendants did not raise this objection in the trial court, and therefore forfeited it. In any event, defendants claim has no merit.

Evidence Code section 352 provides the court with discretion to exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The type of prejudice Evidence Code section 352 seeks to avoid is not the damage to the defense that naturally results from relevant evidence, but the tendency to prejudge a person or cause on the basis of extraneous factors. (Peoplev.Zapien (1993) 4 Cal.4th 929, 958.) The gang evidence here was essential to attempt to prove the gang enhancement allegations and relevant to establish the prosecutions theory of motive. Its probative value was not substantially outweighed by its prejudicial potential. Jurors were instructed not to consider the gang evidence as proof defendants were persons of bad character or predisposed to commit crimes. Admission of the evidence was not an abuse of the trial courts discretion under Evidence Code section 352.

h. First Amendment

Defendants further contend Kays testimony violated their First Amendment rights because it permitted them to be put on trial for their association with gang members. They did not raise this claim in the trial court, and have therefore forfeited it. Even constitutional claims and objections must generally be raised in the trial court in order to preserve them for appeal. (People v