P.
v. Mendez



















Filed
1/10/13 P. v. Mendez CA3











NOT
TO BE PUBLISHED







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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD APPELLATE DISTRICT

(San Joaquin)

----




>

THE PEOPLE, Plaintiff and Respondent, v. RAMON ENRIQUEZ MENDEZ, Defendant and Appellant.

C063386 (Super. Ct. No. SF106859B)

Defendant was convicted by a jury of
first degree murder (Pen. Code, §
187), attempted robbery (id. §
664/211), and active participation in a criminal street gang (>id. § 186.22, subd. (a)). (Further undesignated section references are
to the Penal Code.) The jury also found
the murder was committed during the attempted
robbery (§ 190.2, subd. (a)(17)(A)), both the murder and the attempted
robbery were committed for the benefit of a criminal street gang (§§ 186.22,
subd. (b), 190.2, subd. (a)(22)) and a principal in the offenses discharged a
firearm causing great bodily injury
(§ 12022.53, subds. (d) & (e)).

On the murder conviction, defendant
was sentenced to life without the possibility of parole (LWOP) plus consecutive
terms of 25 years to life and 10 years for the firearm discharge and gang
enhancements respectively. On the
attempted robbery, defendant received a consecutive, one-third middle term of
one year, plus enhancements of 25 years to life and 10 years for the firearm
discharge and gang enhancements, to run concurrently to the terms on the murder
charge. Finally, on the gang offense,
defendant received a concurrent middle term of two years.

Defendant appeals contending: (1) the trial court erred in denying his
motion for mistrial after a prosecution gang expert presented improper
testimony; (2) he received ineffective assistance of counsel when his attorney
elicited testimony from a witness suggesting, incorrectly, that another witness
had provided damaging testimony during the preliminary hearing; (3) there is
insufficient evidence to support the robbery special circumstance; (4) there is
insufficient evidence to support the gang charge and enhancements; (5) the jury
was not properly instructed on the gang special circumstance; (6) the jury was
not properly instructed on the firearm enhancement; (7) the LWOP sentence
constitutes cruel and unusual punishment; (8) the 10-year gang enhancements
were improperly imposed in addition to the 25-to-life firearm enhancements; and
(9) the court was required to stay the sentences on the attempted robbery and
gang charges.

We agree with defendant that the
gang special circumstance findings on the murder and attempted robbery offenses
must be reversed due to instructional error, the gang enhancements on those
offenses must be stricken because they cannot be imposed in addition to the
firearm use enhancements, and the separate punishments for the robbery and gang
charges must be stayed pursuant to section 654.
In all other respects, we affirm the judgment.

Facts and Proceedings

On the afternoon of December
9, 2007, defendant, Jose Cardenas, Martha M., and Carina G., along
with several others, attended a gathering at the home of Jose P. in Stockton. All of the attendees were members of the
Surenos criminal street gang. Defendant
and Cardenas were members of the Vickystown subset of the Surenos, while Martha
and Carina were members of the Playboys subset.


Cardenas, Martha M. and Carina G. arrived in a car driven
by Carina, who parked in an alley behind Jose P.’s home. Defendant arrived separately. At some point during the afternoon, defendant
and Cardenas stood among a group of men who were passing around a handgun. Defendant had the gun in his pocket or
waistband either before or after it was passed around.

Later in the afternoon, Cardenas, Martha and Carina got
into Carina’s car to leave and were waiting for defendant to join them. About that time, 19-year-old Francisco
Montejo walked passed them down the alley talking on a cell phone. Cardenas made a comment to the effect that he
liked the man’s phone and should take it from him. A couple of minutes later, Cardenas asked to
be let out of the car and walked to the back of it. Defendant joined him there and they talked
for a couple of minutes. The two then
walked up the alley in the direction of Montejo.

Defendant and Cardenas approached Montejo and announced
they were Surenos. Cardenas held Montejo
at gunpoint, while defendant attempted to search him. However, before defendant could take
anything, Cardenas shot Montejo in the chest.


Defendant and Cardenas fled and shortly thereafter were
picked up by Carina G. and left the area.
Montejo later died from the bullet wound.

Defendant and Cardenas were charged with murder, attempted
robbery and active participation in a criminal street gang, along with various
special circumstances and enhancements, as described above. They were tried together before separate
juries. Defendant was convicted as
charged and sentenced as previously indicated.


Discussion

I

Motion
for Mistrial

During cross-examination of the prosecution’s gang
expert, Officer James Ridenour, counsel for codefendant Cardenas asked how the
offenses charged in this matter could have benefited the Surenos gang in light
of the fact the defendants had not been wearing gang clothing, they did not
flash gang signs, and no graffiti was produced proclaiming responsibility. Ridenour answered:

“Since this crime has happened, all the way up Cinco de
Mayo, or actually it was May 3rd of this year, when I have talked to Norteno
gang members, especially on May 3rd, I actually stopped and talked to them on
the alley off Charter, okay, this alley that enters off MLK is actually a spot
I stopped and talked to this kid. We
were just talking and I was asking him what was going on with his gang, what’s
going on with the fighting, has he been shot at lately, has he been--what’s
going on with him, the Nortenos, with the Nortenos and Surenos. We talked for a while, and I said--.”

At that point, counsel for defendant objected on hearsay
grounds, and counsel for Cardenas objected that the answer was not responsive
to the question. The trial court
overruled the objections.

Ridenour continued:
“We talked for a while, and he said the Surenos are starting to step it
up. I asked him what he meant by
that.”

Counsel for Cardenas again objected, this time based on >Crawford v. Washington (2004) 541 U.S.
36 [158 L.Ed.2d 177] (Crawford). The trial court again overruled the
objection.

Ridenour then completed his answer: “And he said they are starting to step it up
and that they have been killing a lot of us lately. I said, what are you talking about, and he said
they killed their own people here in the alley a couple of years ago. During that same year, they were driving
around in a truck just shooting Nortenos like they were nothing, and then they
were talking about the homicide that happened at AM/PM, when they stabbed and
shot the guy at AM/PM. He said they’re
just stepping up. They’re not playing no
more with us, they’re trying to make a move.
That’s one way.

“I have also talked to citizens in that area, right after
this homicide happened, a couple of months, and since then going through that
area, asking them--I see people standing, mowing their yards and stuff like
that, I just ask them what the neighborhood is like, they tell me they’re
tense, they’re tense because of the shootings, they’re tense because--and they
say both Nortenos and Surenos, both Nortenos and Surenos seem like they are
getting more violent, they’re shooting people in the alley, they’re shooting
people in the streets.”

At that point, counsel for defendant objected that the
answer was not responsive and asked that it be stricken and to approach the
bench. After an unreported bench
conference, questioning moved on to other matters.

At the next break, counsel for defendant moved for a
mistrial. Counsel indicated that, while
the answer may have been responsive to the question, defendant “shouldn’t be
saddled with bad questions” asked by a co-defendant’s counsel. Cardenas’s counsel again asserted the
testimony violated Crawford.

The trial court denied the motion. The court explained the question was
legitimate and the answer was responsive, but “probably went too far.” The court indicated the answer did not
suggest that either defendant was involved in the other crimes described by the
officer but instead the reference was to Sureno crimes in general.

Defendant contends admission of the foregoing testimony
was so prejudicial as to render his trial fundamentally unfair, in violation of
state and federal due process. He argues
the trial court therefore erred in denying his motion for mistrial. Of course, implicit in this argument is that
the trial court erred in overruling counsels’ objections to the testimony in
the first place. Defendant raises a
number of separate arguments in this regard, including a claim that admission
of the evidence violated his constitutional right of confrontation as recognized
in Crawford.

Inexplicably, the People respond only to this >Crawford argument, thereby apparently
conceding the others. However, we do not
accept that implicit concession and shall consider each argument in turn.

Defendant first contends the court erroneously reasoned
there was no prejudice from the foregoing testimony because it was not directed
at him personally, but only at the Surenos gang generally. He points out: “The unidentified Norteno directly referred
to the charged crimes (‘they killed their own people here in the alley a couple
of years ago’). Similarly, the
neighbors’ statements that they were tense because of the ‘shootings’ was
solicited from those witnesses by Ridenour ‘right after the homicide
happened.’ ” Defendant argues the
unidentified Norteno stated “they killed” rather than “they accidentally shot”
the victim, thereby going to “one of the most hotly disputed issues in the
trial.”

The foregoing arguments do not suggest any misuse of the
indicated testimony. The question asked
of Officer Ridenour was how the gang could benefit from the crime. The fact that people on the street were aware
of the crime and that it was perpetrated by Surenos answered that question. The fact neighbors may have been tense
following the crime is no surprise, since tension and anxiety is exactly what
such gang crimes are intended to create.
Officer Ridenour was essentially explaining how the crimes caused their
intended result. There is no suggestion
either defendant was tied to any of the other described crimes.

Defendant also takes issue with the trial court’s
suggestion that he would not be prejudiced by the mention of other crimes
committed by Surenos in general. He
argues: “It is well established that
improperly admitted gang evidence creates a substantial danger of undue
prejudice precisely because it creates a risk that the jury will improperly
infer that the defendant has a criminal disposition.”

Defendant cites as support People v. Cardenas (1982) 31 Cal.3d 897 (Cardenas), where the Supreme Court found an abuse of discretion
under Evidence Code section 352 in the admission of evidence that the defendant
and several of his witnesses were members of the same criminal street
gang. In that case, there were no gang
charges; the evidence was admitted instead to show bias of the witnesses. The high court concluded such evidence was
cumulative in light of other evidence showing the close relationship between
the defendant and the witnesses. Hence,
the minimal probative value of the evidence was outweighed by its prejudicial
effect. (Cardenas, at pp. 904-905.)

Cardenas is
clearly inapposite. The court there
concluded the evidence was improperly admitted under Evidence Code section 352
because its slight probative value was outweighed by its prejudicial
effect. Defendant here did not raise an
Evidence Code section 352 objection, so there was no occasion for the trial
court to weigh probative value against prejudicial effect. Defendant did not initially object to the
evidence as unduly prejudicial. He
asserted it should be excluded because it was hearsay and not responsive.

Defendant’s argument that “improperly admitted gang
evidence creates a substantial danger of undue prejudice” merely begs the
question of whether the evidence was improperly admitted. And while improperly
admitted evidence could create a substantial danger of prejudice, so too could >properly admitted evidence.

“The rule is long established in
California that experts may testify as to their opinions on relevant matters
and, if questioned, may relate the information and sources on which they relied
in forming those opinions. Such sources
may include hearsay.” (>People v. Thomas (2005) 130 Cal.App.4th
1202, 1209.) “Evidence Code section 801
permits an expert to testify to an opinion ‘[b]ased on matter . . . perceived
by or personally known to the witness or made known to him at or before the
hearing, whether or not admissible, that
is of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates, unless an expert is
precluded by law from using such matter as the basis of his opinion.’ (Evid. Code, § 801, subd. (b) . . . .)” (People
v. Coleman (1985) 38 Cal.3d 69, 90 (Coleman),
disapproved on other grounds in People v.
Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.)

The questioning by defense counsel went to the expert’s
opinion that the shooting of Montejo was for the benefit of the Surenos
gang. Ridenour was asked an open-ended
question about how the crime could have benefited the gang, thus inviting an
open-ended answer. Ridenour explained
how the public, and the Nortenos in particular, came to view the crime as part
of an increase in violent criminal activity by the Surenos. The answer was responsive.

Defendant argues evidence of other crimes committed by
someone else, such as the AM/PM stabbing and shooting mentioned by Ridenour, is
not admissible to prove defendant’s guilt of the charged offenses. However, while that may be true as far as it
goes, the evidence here was not admitted to prove defendant committed the
offense but to prove that such offense was for the benefit of the gang. Defense counsel’s questioning suggested no
such connection existed and challenged the witness to explain otherwise. The witness did so by indicating word on the
street was that the murder was part of a pattern of increased gang
violence.

Defendant next contends “an expert ‘may not under the
guise of reasons bring before the jury incompetent hearsay evidence,’ ”
quoting from Coleman, supra, 38
Cal.3d at page 92. According to
defendant, “[i]n cases ‘where the risk of improper use of the hearsay outweighs
its probative value as a basis for the expert opinion it may be necessary to
exclude the evidence altogether.’ ”
Defendant argues this is such a case, because the trial court placed no
restriction on the jury’s use of the evidence.
Hence, the jury was not restricted to using the evidence only to test
the basis of the expert’s opinions.

In Coleman, the
high court cautioned: “California law
gives the trial court discretion to weigh the probative value of inadmissible
evidence relied upon by an expert witness as a partial basis for his opinion
against the risk that the jury might improperly consider it as independent
proof of the facts recited therein.” (>Coleman, supra, 38 Cal.3d at p. 91.)
The court continued: “[W]hile an
expert may give reasons on direct examination for his opinions, including the
matters he considered in forming them, he may not under the guise of reasons
bring before the jury incompetent hearsay evidence. [Citation.]
Ordinarily, the use of a limiting instruction that matters on which an
expert based his opinion are admitted only to show the basis of the opinion and
not for the truth of the matter cures any hearsay problem involved, but in
aggravated situations, where hearsay evidence is recited in detail, a limiting
instruction may not remedy the problem.”
(Id. at p. 92.) Finally, the court stated: “[T]he trial court must exercise its
discretion pursuant to Evidence Code section 352 in order to limit the evidence
to its proper uses. The exercise of this
discretion may require exclusion of portions of inadmissible hearsay which were
not related to the expert opinion.
[Citation.] Or it may be
necessary to sever portions of the testimony in order to protect the name="sp_233_93">name="citeas((Cite_as:_38_Cal.3d_69,_*93)">rights of the defendant without
totally destroying the value of the expert witness’ testimony. [Citation.]
In still other cases where the risk of improper use of the hearsay
outweighs its probative value as a basis for the expert opinion it may be
necessary to exclude the evidence altogether.”
(Id. at pp. 92-93.)

Defendant’s argument that an expert may not present >incompetent hearsay evidence under the
guise of explaining the basis for his opinions again begs the question of
whether this was incompetent hearsay evidence.
Likewise as to defendant’s further argument that an expert cannot base
an opinion on unreliable
hearsay. Defendant asserts “[s]tatements
made to police by victims and witnesses are not considered trustworthy.” However, these are the very things gang
experts are reasonably expected to rely upon.
In this instance, for example, how else would Officer Ridenour have
learned about the perception in the community regarding the charged crime. While the hearsay evidence may not have been
admissible to prove a stabbing and shooting occurred at an AM/PM, it would
nevertheless be admissible to show how the public viewed the charged crime in
context, thereby supporting the expert’s opinion that the crime was
gang-related. Defendant points to
nothing to suggest the indicated information was any more or less competent or
reliable than other such evidence routinely relied upon by gang experts.

Lastly, defendant contends introduction of the hearsay
evidence violated his right of confrontation.
“In all criminal prosecutions, the accused has a right, guaranteed by
the Sixth and Fourteenth Amendments to the United States Constitution, ‘to be
confronted with the witnesses against him . . . .’ ” (People
v. Thomas, supra, 130 Cal.App.4th
at p. 1208.) “In >Crawford, the Supreme Court held that
out-of-court statements that are testimonial in nature are inadmissible unless
the declarant is unavailable and the accused has had a prior opportunity to
cross-examine the declarant.” (>Ibid.)


The People contend defendant has forfeited this argument
by failing to object below on the basis of Crawford. However, because the issue was raised by
co-counsel, we conclude it is properly before us.

The initial question in any Crawford analysis is whether the out-of-court statements were
testimonial in nature. The United States
Supreme Court did not provide a comprehensive definition in >Crawford of what would be considered
testimonial, but did provide the following examples: (1) “ ‘ex parte in-court testimony or its functional equivalent--that is,
material such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially,’ ” and (2)
“statements . . . made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at
a later trial.” (Crawford, supra, 541 U.S.
at pp. 51-52 [158 L.Ed.2d at p. 193].)

There can be no reasonable dispute that the statements at
issue here fall outside the examples mentioned by the United States Supreme
Court. These were not custodial
examinations of percipient witnesses to the crimes but merely general
statements regarding the word on the street as to the effect of the
crimes. There is nothing to suggest the
individuals questioned by Officer Ridenour would reasonably have expected their
comments to be used in court.

Defendant cites United
States v. Mejia (2d Cir. 2008) 545 F.3d 179, to support his contention that
the statements at issue here were testimonial.
However, Mejia is clearly
inapposite, as it involved an expert who was also the investigating officer in
the case and who recited to the jury information that was obtained from a gang
member who had been interrogated while in police custody. (See id.
at p. 199.)

“ ‘Hearsay in support of expert opinion is simply
not the sort of testimonial hearsay the use of which Crawford condemned.’
[Citations.] ‘The rule is long
established in California that experts may testify as to their opinions on
relevant matters and, if questioned, may relate the information and sources on
which they relied in forming those opinions.
Such sources may include hearsay.
[Citations.]’ [Citation.]name="sp_4041_154"> . . . [A]dmission
of expert testimony based on hearsay will typically not offend confrontation
clause protections because ‘an expert is subject to cross-examination about his
or her opinions and additionally, the materials on which the expert bases his
or her opinion are not elicited for the truth of their contents; they are
examined to assess the weight of the expert’s opinion.’ ” (People
v. Sisneros (2009) 174 Cal.App.4th 142, 153-154.)

The question here is whether the trial court erred in
denying defendant’s motion for mistrial.
“In reviewing rulings on motions for mistrial, we apply the deferential
abuse of discretion standard.
[Citation.] ‘A mistrial should be
granted if the court is apprised of prejudice that it judges incurable by
admonition or instruction.
[Citation.] Whether a particular
incident is incurably prejudicial is by its nature a speculative matter, and
the trial court is vested with considerable discretion in ruling on mistrial
motions. [Citation.]’ [Citation.]”
(People v. Wallace (2008) 44
Cal.4th 1032, 1068.)

Any prejudice to defendant was minimal, inasmuch as the
expert recounted other Surenos crimes as the basis for his opinion that a primary
purpose of the gang was committing crimes.


Furthermore, contrary to defendant’s assertions, this was
not a close case. Defendant relies on
his own self-serving statements to police that he tried to talk Cardenas out of
the crime and only followed behind him as he approached the victim. But even accepting this as true, the fact
remains that, after defendant was unable to talk Cardenas out of it, he
accompanied Cardenas up the alley knowing full well Cardenas’s intent. Other evidence also shows defendant readily
participated in the crime thereafter.

We conclude the trial court did not abuse its discretion
in denying defendant’s motion for mistrial.


II

Ineffective Assistance

During her trial testimony, Martha M. testified that,
when defendant and Cardenas returned to Carina’s car after the shooting, they
were laughing. She also acknowledged
telling the police that, when defendant and Cardenas got into the car, they
were a little jumpy as if they were in shock.
She further testified nobody said anything in the car about anyone being
shot and claimed not to remember telling police otherwise. She did not testify that defendant said
anything about going through the victim’s pockets before the shooting.

During the defense case, counsel for defendant questioned
Detective Rodriguez about his interview of Martha M. and Carina G. Rodriguez testified that both Carina and
Martha told him that when Cardenas got back in the car he said he thought he
shot someone. He further testified that
they confirmed this in their preliminary hearing testimony. Rodriguez indicated Martha did not say
anything to him about hearing defendant say he went through the victim’s
pockets before the shot. Counsel then
continued along this line:

“BY [counsel for defendant]: Q. You
had a discussion with Martha [M.] in December, correct?

“A. Correct.

“Q. You heard her
say in court that my client, [defendant], told her that he went through the
victim’s pockets, correct?

“A. Yes.

“Q. When you
interviewed her in December, did she tell you the same thing?

“A. No.

“Q. What did she
tell you?

“A. That she had
no knowledge if [defendant] had gone through the pockets.

“Q. She told you
that she never heard anything in that car about [defendant] bragging about
going through the guy’s pockets, correct?

“A. Correct.”

Defendant contends counsel’s question to Detective
Rodriguez about hearing Martha M. say in court she heard defendant say he went
through the victim’s pockets, which elicited a positive response, amounted to
ineffective assistance, inasmuch as Martha did not so testify, either at trial
or in the preliminary hearing. He argues
there could have been no possible tactical reason for eliciting this incorrect
testimony, which was then used by the prosecution in closing arguments.

The People respond that, while it is true Martha M. did
not testify defendant said he went through the victim’s pockets, she did
testify that defendant was going to search the victim when he heard the
shot. Thus, the People argue, “the fact
that [defendant’s] counsel attempted to discredit [Martha’s] testimony that was
slightly different from what she actually testified to was of no
consequence.”

The problem with the People’s argument is that it was not
Martha M., but Carina G., who testified that defendant was about to search the
victim’s pockets when the shot occurred.
Martha M. did not testify about anything defendant said in the car. Nevertheless, as we shall explain, we find no
ineffective assistance in connection with the indicated testimony.

Under both the Sixth
Amendment to the United States Constitution and article I, section 15 of
the California Constitution, a criminal defendant has a right to the assistance
of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d
674, 691-692]; People v. Pope (1979)
23 Cal.3d 412, 422.) This right
“entitles the defendant not to some bare assistance but rather to >effective assistance.” (People
v. Ledesma (1987) 43 Cal.3d 171, 215.)


“To establish entitlement to relief for ineffective
assistance of counsel the burden is on the defendant to show (1) trial counsel
failed to act in the manner to be expected of reasonably competent attorneys
acting as diligent advocates and (2) it is reasonably probable that a more
favorable determination would have resulted in the absence of counsel’s
failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288.)

If the record does not show why counsel acted in the
manner challenged, we must affirm the judgment unless there simply could be no
satisfactory explanation for counsel’s conduct.
(People v. Maury (2003) 30
Cal.4th 342, 389.)

In this instance, one might readily surmise trial counsel
was simply confused as to who had testified about defendant saying he was about
to go through the victim’s pockets.
Counsel was asking Detective Rodriguez about statements made by both
Martha M. and Carina G., including their respective testimony. Rodriguez too apparently confused the two
women. An honest mistake does not
necessarily amount to ineffective assistance.
A criminal defendant is entitled to effective assistance, not perfect
assistance. (United States v. Cronic (1984) 466 U.S. 648, 656-658 [80 L.Ed.2d
657, 666-667]; People v. Wallin
(1981) 124 Cal.App.3d 479, 484-485; People
v. Hartridge (1955) 134 Cal.App.2d 659, 666-667.) The question is whether counsel’s conduct met
the standard of a reasonably competent attorney.

At any rate, in light of Carina’s testimony about
defendant preparing to go through the victim’s pockets before the shooting, any
error in attributing that testimony to Martha was clearly harmless. And whether defendant said he went through
the victim’s pockets or was about to do so is of no moment. Either way, it demonstrates defendant was an
active participant in the attempted robbery.


Defendant argues he was prejudiced because the prosecutor
relied on the erroneous testimony during argument to the jury. However, the prosecution’s argument could as
easily have been a reference to Carina’s testimony rather than Martha’s. Because defendant has failed to demonstrate
any prejudice from the erroneous testimony, his ineffective assistance claim is
rejected.

III

Robbery
Special Circumstance

Under section 190.2, a defendant found guilty of first
degree murder is subject to a penalty of death or life without the possibility
of parole (LWOP) if one of various special circumstances is found true. One such special circumstance is where “[t]he
murder was committed while the defendant was engaged in, name="SDU_112">or
was an name="citeas((Cite_as:_50_Cal.4th_99,_*163,_23">accomplice in, the
commission of, attempted commission of, or the immediate flight after
committing, or attempting to commit” one or more of various enumerated
felonies, including robbery.
(§ 190.2, subd. (a)(17).)
For the actual killer, intent to kill is not an element of the special
circumstance charge. However, for an
aider and abettor, the prosecution must prove the defendant either intended to
kill (§ 190.2, subd. (c)) or was a major participant in the underlying felony
and acted with reckless indifference to human life (§ 190.2, subd. (d)).

Defendant contends there is no evidence either that he
intended to kill the victim or that he acted with reckless indifference to the
victim’s life. Hence, he argues, the
special circumstance finding cannot stand.
According to defendant, there is insufficient evidence he knew before
the actual shooting that Cardenas was likely to fire or was likely to harm
anyone. Rather, defendant argues, “the
evidence tended to show that both
defendants were completely surprised when the gun went off, as they immediately
ran away in a panic without taking the victim’s property.” Furthermore, defendant first tried to talk
Cardenas out of the crime and eventually went along only because Cardenas
promised the victim would not be hurt.

“ ‘ “To determine the sufficiency of the
evidence to support a conviction, an appellate court reviews the entire record
in the light most favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from which a
rationale trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ [Citations.] ‘ “If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that
the circumstances might also be reasonably reconciled with a contrary finding
does not warrant a reversal of the judgment.” ’ [Citations.]
The standard of review is the same when the prosecution relies mainly on
circumstantial evidence.
[Citation.]” (>People v. Valdez (2004) 32 Cal.4th 73, 104.)


As commonly understood, the term “reckless indifference
to human life” means “that the defendant was subjectively aware that his or her
participation in the felony involved a grave risk of death.” (People
v. Estrada (1995) 11 Cal.4th 568, 577.)


In People v.
Hodgson (2003) 111 Cal.App.4th 566 (Hodgson),
the Court of Appeal found sufficient evidence to support a robbery special
circumstance where the defendant held open the electric gate of an underground
parking garage to facilitate the escape of his fellow gang member, Salazar, who
robbed and shot to death a woman who had opened the gate to enter. (Hodgson,
at p. 568.) While the defendant stood at
the gate, Salazar approached the victim’s car and shot out one of the
windows. After the car rolled forward
and into a pillar and a parked car, Salazar fired another bullet through the
window and into the victim’s head. (>Id. at p. 570.)

The court concluded the defendant was a major participant
in the crime, notwithstanding the fact he did not supply the murder weapon, was
not himself armed, and did not take anything from the victim. (Hodgson,
supra, 111 Cal.App.4th at p.
579.) The court explained there were
only two participants in the crime, rather than a “coterie of confederates,”
and the defendant’s actions were essential in assisting his fellow gang
member’s escape. (Id. at pp. 579-580.) The
court further concluded a rational trier of fact could have found sufficient
evidence that the defendant acted with reckless indifference to human
life. The court explained: “Even after the first shot it must have been
apparent to appellant Ms. Nam had been severely injured and was likely
unconscious. Her car rolled into the
garage and collided with a pillar and another car. Appellant had to be aware use of a gun to
effect the robbery presented a grave risk of death. However, instead of coming to the victim’s
aid after the first shot, he instead chose to assist Salazar in accomplishing
the robbery by assuming his position
at the garage gate and trying to keep it from closing until Salazar could
escape from the garage with the loot.” (>Id. at p. 580.)

In People v. Smith
(2005) 135 Cal.App.4th 914, Taffolla stood outside the victim’s motel room
while Smith entered and beat her to death in the course of a robbery. The Court of Appeal found sufficient evidence
to support the finding that Taffolla acted with reckless indifference to human
life for purposes of a robbery special circumstance finding. According to the court: “Even if Taffolla remained outside [the
victim]’s room as a lookout, the jury could have found Taffolla gained a
‘subjective awareness of a grave risk to human life’ during the many tumultuous
minutes it would have taken for [the victim] to be stabbed and slashed 27
times, beaten repeatedly in the face with a steam iron, and had her head
slammed through the wall. In addition, when Smith emerged from her room
covered in enough blood to leave a trail from the motel to McFadden Street,
Taffolla chose to flee rather than going to [the victim]’s aid or summoning
help.” (Id. at p. 927.)

In neither of the foregoing cases did the defendant
participate in the actual killing except as a lookout. In the present matter, defendant’s
participation was more direct. He stood
alongside Cardenas as they attempted to rob the victim. On the other hand, in the foregoing cases,
the defendant had an opportunity to intervene to stop the killing while it was
in progress but chose not to do so. In
the present matter, there was only one shot, after which defendant and Cardenas
immediately fled.

Defendant relies on two out-of-state decisions: Jackson
v. Florida (Fla. 1991) 575 So.2d 181 (Jackson);
and State v. Lacy (Ariz. 1996) 929
P.2d 1288 (Lacy). In Jackson,
the evidence established that the defendant and his brother were at the scene
of a murder and the defendant had previously expressed an intent to rob the
victim. However, there were no
eyewitnesses to the actual killing. The
defendant was convicted of felony murder and sentenced to death, but the
Florida Supreme Court reversed the sentence.
The court explained that, while the defendant was clearly a major
participant in the underlying felony, there was insufficient evidence that he
acted with a reckless disregard for human life.
In particular, there was no evidence the defendant possessed or fired a
weapon, harmed the victim, intended to harm the victim when he entered the
store, or expected violence to erupt. (>Jackson, at pp. 192-193.) There was also no evidence that the defendant
had a chance to prevent the murder, since it happened quickly. (Id.
at p. 193.)

In Lacy, two
women were found dead in an apartment.
One woman had been shot three times and received a href="http://www.sandiegohealthdirectory.com/">blunt force injury to her
head and scratches on her arm. The other
woman had been shot twice, once in the face and once in the back of the
head. (Lacy, supra, 929 P.2d at
pp. 1292-1293.) The defendant later gave
a statement to police implicating himself and a man named Stubblefield in the
killings. However, the defendant claimed
Stubblefield alone had killed the women while the defendant tried to get him to
depart. The defendant eventually grabbed
a microwave and ran out the door of the apartment. Stubblefield later picked him up and took him
home. The two men were tried separately
and Stubblefield was acquitted. However,
the defendant was convicted of first degree murder and sentenced to death. (Id.
at p. 1293.)

The Arizona Supreme Court reversed the sentence, finding
insufficient evidence that the defendant acted with reckless indifference to
human life. The only evidence of what
occurred inside the apartment was the defendant’s statement to police. According to the court: “Here, other than what defendant described,
there is little to establish his involvement in the deaths of these young
women. We know that, at a minimum, he
stole a microwave after one of the murders and did nothing to prevent either
victim’s death. While this may
demonstrate callousness and a shocking lack of moral fiber, it does not alone
rise to the level of reckless indifference.”
(Lacy, supra, 929 P.2d at p. 1300.)
The court continued: “We do not
suggest that defendant’s tale must be accepted at face value. Without his statement, however, we are left
with an almost complete void as to what occurred that night. His fingerprints were nowhere to be found, it
is unclear whether he knew Stubblefield had a gun, and it is uncertain that he
should have anticipated violence.” (>Ibid.)


Similar to the foregoing cases, there is no evidence here
as to what occurred in the alley other than defendant’s statements to the
police and the testimony of Martha and Carina about what defendant and Cardenas
said after they returned to the car.
However, in the present matter, there is evidence that defendant
conspired with Cardenas to rob the victim, defendant was either armed or knew
Cardenas was armed with a handgun, and the two proceeded in the direction of
the victim to carry out their plan. It
is also clear that, after the shooting, defendant ran from the scene with
Cardenas rather than render aid to the victim.


In People v. Mora
(1995) 39 Cal.App.4th 607 (Mora),
Mora and Arredondo conspired to rob a drug dealer named Minard. Minard and a friend named Nale were at
Minard’s home at 1:30 a.m. watching television and smoking marijuana when Mora
knocked on the door. Nale had previously introduced Mora to Minard for the
purpose of buying drugs and admitted Mora into the home. Arredondo later knocked on the door, and Mora
asked if his friend could come in and use the bathroom. However, when the door was opened, Arredondo
pushed his way in pointing a high-powered rifle. Arredondo instructed Minard to “get his boxes
of shit,” and, as Minard began to get up, Mora grabbed him. A tussle ensued during which Arredondo fired
a shot into Minard’s chest. Minard fell to his knees, Mora pushed him the rest
of the way down, and Arredondo shot Minard in the back. Each gun wound was fatal. (Mora,
supra, 39 Cal.App.4th at p.
611.) Mora later gave a statement to
police claiming that he never intended that anybody die. (Id.
at p. 612.)

The Court of Appeal concluded there
was sufficient evidence to support a finding that Mora acted with reckless
disregard for human life. Even assuming
Mora did not intend that the victim be killed, he “admitted planning to go to a
drug dealer’s home at night to rob him by having Arredondo enter with a rifle
which fired three-inch bullets. [Mora]
had to be aware of the risk of resistance to such an armed invasion of the home
and the extreme likelihood death could result.
[Citation.] According to [Mora]’s
own statement he did not know whether Minard was dead or alive. He did not attempt to aid the victim but
instead carried through with the original plan to steal the victim’s
drugs. [Mora] personally carried away
the loot, left the victim there to die, and threatened the remaining victim
Nale.” (Mora, supra, 39 Cal.App.4th
at p. 617.)

In the present matter, the jury was not required to
accept defendant’s self-serving description of the offenses at face value. Defendant first denied even being present at
Jose P.’s house. After being told the
police knew he was there, defendant admitted being present, but claimed
Cardenas wanted him to go along but he refused, Cardenas went alone, and
defendant heard a gunshot. However, when
told that bank surveillance cameras showed him with Cardenas in the alley,
defendant admitted he went along but claimed he first tried to talk Cardenas
out of it. He also claimed he did not
know Cardenas was armed. Defendant then
said he ran away after the shooting only because Cardenas ran and that Cardenas
claimed when he got to the car that the gunshot had been accidental. It is clear from the foregoing that defendant
revealed to police only as much as he was required to reveal based on what the
officers claimed they already knew.

Both Martha M. and Carina G. testified that Cardenas expressed
an intent to steal the victim’s cell phone and, a couple minutes later, engaged
in a discussion with defendant at the rear of Carina’s car. The two then departed up the alley in the
direction of the victim. Shortly
thereafter, the shooting occurred and both defendants fled the scene, leaving
the victim lying in the alley. Martha
testified she saw the two men running and, when they got in the car, they were
laughing. Carina testified she told the
police that defendant said he told Cardenas just to scare the victim and
defendant was going to search the victim when he heard the gunshot. There was also testimony that defendant had
been seen earlier in a group of men with Cardenas passing around a handgun.

As in Mora, the
two perpetrators planned to rob the victim at gunpoint. Also as in Mora, defendant was actively assisting his armed confederate in the
attempted robbery when the latter shot the victim. Further as in Mora, both perpetrators fled the scene without rendering assistance
following the allegedly unintended shooting.
The only difference here, which also distinguishes this matter from >Hodgson, is that the victim was not shot
twice and, hence, defendant did not have as great an opportunity to intervene
and stop the killing. However, we do not
find this distinction to be significant under the circumstances. When defendant accompanied his confederate up
that ally to assist in a robbery, he knew Cardenas
was armed and had to be aware of the risk of resistance to such a crime and the
extreme likelihood death could result.
This is sufficient to support the finding that he acted with reckless
disregard for human life.

IV

Active
Gang Participation

Defendant contends his conviction for active
participation in a criminal street gang must be reversed because the
prosecution failed to prove the Surenos are a criminal street gang within the
meaning of section 186.22.

Section 186.22, subdivision (a), reads: “Any person who actively participates in any
criminal street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes, furthers,
or assists in any felonious criminal conduct by members of that gang, shall be
punished by imprisonment in a county jail for a period not to exceed one year,
or by imprisonment in the state prison for 16 months, or two or three
years.”

A criminal street gang is defined in section 186.22 as
“any 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 paragraphs (1) to
(25), inclusive, or (31) to (33), inclusive, of 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.” (§ 186.22, subd.
(f).)

A “pattern of criminal gang activity” requires “the
commission of, attempted commission of, conspiracy to commit, or solicitation
of, sustained juvenile petition for, or conviction of two or more of the
following offenses, provided at least one of these offenses occurred after the
effective date of this chapter and the last of those offenses occurred within
three years after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:
[33 offenses identified].” (§
186.22, subd. (e).)

Defendant does not contest that the Surenos are an
“ongoing organization, association, or group of three or more persons” (§
186.22, subd. (f)) or that he is a member of the Vickystown subset of the
Surenos. He contends there is
insufficient evidence that a primary activity of the Surenos is the commission
of one or more of the crimes enumerated in section 186.22, subdivision
(e). Defendant acknowledges that Officer
Ridenour, the prosecution’s gang expert, testified a primary activity of the
“gang” is the commission of “[h]omicide, carjacking, robbery, drug sales, burglary,
stolen autos, possession of handguns, felon in possession of weapons, [and]
burglary,” which are all listed crimes.
However, he argues Ridenour never clarified whether the “gang” to which
he was referring was the Surenos in general or one of its subsets.

The People respond that the context of Officer Ridenour’s
testimony makes if “perfectly clear” he was referring to the Surenos in
general. However, as support, the People
cite nothing more than the testimony indicated above. They provide no “context” for that
testimony. Nevertheless, we have
reviewed the entire trial transcript and note that, in earlier testimony,
Ridenour was discussing the two primary Hispanic gangs, the Surenos and the
Nortenos, and not any particular subsets.
Ridenour made no attempt to distinguish crimes committed by a particular
subset from those committed by other Surenos.
Thus, there is no reason to believe he was referring to any subset of
the Surenos.

Defendant next contends Officer Ridenour was never asked
for the basis of his opinion that a primary activity of the Surenos was
commission of the enumerated offenses.
Defendant argues an expert opinion alone does not constitute substantial
evidence but must be backed by sufficient facts.

The People fail to respond to this argument. Instead, they refer to Ridenour’s testimony
identifying the various offenses constituting the gang’s primary activities and
assert those offenses qualify under section 186.22, subdivision (e). However, that point is not contested. Next, the People cite Martha M.’s testimony
that the criminal activity of the Playboy Surenos, to which she belonged, was
“pretty crazy,” in that “[e]verybody was going to jail for doing stupid
things.” Without more details, this
testimony obviously had no probative value as to the primary activities of the
Surenos. Finally, the People point out
that defendant was an admitted member of the Vickystown Surenos and “there is
little doubt that the Stockton Vickystown [S]urenos were a criminal street gang
within the definition of the Penal Code.”
This argument merely begs the question.


“The phrase ‘primary activities,’ as used in the gang
statute, implies that the commission of one or more of the statutorily
enumerated crimes is one of the group’s ‘chief’ or ‘principal’
occupations. (See Webster's Internat.
Dict. (2d ed. 1942) p. 1963 [defining ‘primary’].) That definition would necessarily exclude the
occasional commission of those crimes by the group’s members.” (People
v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary
activities might consist of evidence that the group’s members >consistently and repeatedly have
committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . .
. .” (Id. at p. 324.)

In In re Nathaniel C.
(1991) 228 Cal.App.3d 990, the Court of Appeal found the evidence insufficient
to prove a primary activity of the gang at issue--the Family--was committing
crimes enumerated in section 186.22. The
gang expert in that case testified that a primary activity of the Family was to
commit crimes, and enumerated the crimes he had in mind. However, only one of those crimes qualified
for the gang enhancement. According to
the court: “[T]he evidence is
insufficient to show a primary activity of the Family is commission of one or
more of the eight specified offenses, as required by section 186.22,
subdivision (f). This is not to say that
the evidence failed to show that criminal conduct is a primary activity of the
Family. But the statute’s focus is much
narrower than general criminal conduct; evidence must establish that a primary
activity of the gang is one or more of the listed offenses.” (Id.
at p. 1004, fn. omitted.) The court went
on to explain the gang expert admitted the Family was based in an area of the
state other than the expert’s jurisdiction.
Thus, the expert’s opinion about primary activities “did not relate
specifically to the Family and its activities.”
(Id. at p. 1005.)

The Court of Appeal in In re Alexander L. (2007) 149 Cal.App.4th 605 likewise found
insufficient evidence that a primary activity of the gang in question was
committing one or more of the enumerated crimes. In that case, the gang expert provided the
following testimony on the issue of primary activities: “ ‘I know they’ve committed quite a few
assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I
know they’ve been involved with auto thefts, auto/vehicle burglaries, felony
graffiti, narcotic violations.’ ” (>Id. at p. 611.) However, there was no testimony regarding the
basis of the expert’s knowledge. (>Id. at pp. 611-612.) On cross-examination, the expert acknowledged
the vast majority of cases with which he was familiar involved name="sp_7047_231">graffiti. (Id.
at p. 612.)

In In re Leland D.
(1990) 223 Cal.App.3d 251, the gang expert testified the primary purpose of the
gang in question was engaging in criminal activity and further indicated the
gang engaged in narcotics sales, vehicle thefts and assaults. (Id.
at pp. 255, 259.) The court concluded
this was insufficient to establish a pattern of criminal activity. (Id.
at p. 258.) There was no evidence
of any specific crime committed by the gang other than a single drug offense
committed by the minor. (>Ibid.)
Furthermore, the sources of the expert’s opinion “appear to have been
hearsay statements from unidentified gang members and information pertaining to
arrests of purported gang members all made without a definite timeframe being
established.” (Id. at p. 259.)

The present matter is readily distinguishable from the
foregoing cases. Officer Ridenour
testified one of the primary activities of the Surenos is the commission of
crimes listed in section 186.22, subdivision (e). In particular, he identified homicides,
carjacking, robberies, drug sales, burglaries, stolen vehicles, possession of
firearms, and being felons in possession of firearms. As the basis for his opinion, Ridenour
indicated he participated in the investigation of over 500 Sureno gang crimes
and has personally arrested 200 to 500 gang members. Ridenour testified that, in order to keep
current on gang activities, he contacts gang members on nearly a daily basis,
both in and out of custody, talks to family members and girlfriends, talks to
other police officers who handle gang matters, belongs to several associations
that deal with gang activities, and receives e-mails and updates throughout the
week about Hispanic gangs.

Defendant argues Officer Ridenour’s opinion alone is
insufficient to establish the elements of the gang charge without the facts on
which that opinion is based. Apparently,
defendant is not satisfied with Ridenour’s explanation that he has investigated
over 500 Sureno gang crimes and talks with gang members, family and friends,
and other officers about gang activities constantly. Defendant would presumably have Ridenour
provide specific details on each of those 500 plus crimes and all of his
various discussions.

In People v.
Gardeley (1996) 14 Cal.4th 605 (Gardeley),
the prosecution’s gang expert testified that, “based on investigations of
hundreds of gang-related offenses, conversations with defendants and other
Family Crip members, as well as information from fellow officers and various
law enforcement agencies, it was his opinion that the Family Crip gang’s
primary purpose was to sell narcotics, but that the gang also engaged in
witness intimidation and other acts of violence to further its drug-dealing
activities.” (Id. at p. 612.) No further
details were provided. The Supreme Court
found the foregoing to be sufficient evidence to support a finding that a
primary activity of the gang in question was the commission of enumerated
crimes. (Id. at p. 620.)

As in Gardeley,
the gang expert here was not required to provide details about all the matters
he used to form his opinions about the gang’s primary activities. Defendant was free to test the basis of
Ridenour’s information on cross-examination as the codefendant did regarding
Ridenour’s opinion that the instant crime benefited the gang.

Defendant next contends there is no way to determine from
Ridenour’s testimony whether he was relying on gang offenses that occurred
before or after the charged offenses.
Defendant argues: “Both logic and
fundamental principles of due process would preclude the imposition of
punishment for gang-related conduct based on proof that an organization to
which the defendant belonged became a criminal street gang after the commission of the crime of which he was convicted.” The People once again fail to respond to this
argument.

To support his argument, defendant cites Ridenour’s
testimony regarding specific crimes committed by Surenos and points out that
Ridenour failed to indicate when most of them occurred. However, this argument goes to a different element
of the gang charge--whether the gang engaged in a pattern of criminal
activity. Defendant does not raise any
challenge on appeal to that element.
Even without the testimony regarding specific, undated crimes committed
by gang members, Ridenour’s opinion about the primary activities of the gang,
based on his investigation of over 500 Sureno gang crimes and his discussions
with gang members, family and friends, and other officers about gang
activities, was sufficient to support the primary activities finding without
any further specifics. (See >Gardeley, supra, 14 Cal.4th at p. 620.)


V

Gang
Special Circumstance Instruction

After instructing on the felony murder special
circumstance, the court instructed the jury on the elements of the gang special
circumstance pursuant to CALCRIM No. 736.
As given by the court, that instruction read:

“The second special circumstance the defendant is charged
with is committing the murder while an active participant in a criminal street
gang in violation of Penal Code Section 190.2(a)(22). To prove this special circumstance is true,
the People must prove that:

“1. The defendant
intentionally killed Francisco Montejo;

“2. At the time of
the killing, the defendant was an active participant in a criminal street gang;

“3. The defendant
knew that members of the gang engage in or have engaged in a pattern of
criminal gang activity; and

“4. The murder was
carried out to further the activities of the criminal street gang.

“Active participation means involvement in a criminal
street gang in a way that is more than passive or in name only.

“The People do not have to prove that the defendant
devoted all or even a substantial part of his time or efforts to the gang, or
that he was an actual member of the gang. . . .”

The court also instructed the jury on the intent
requirement for an aider and abettor pursuant to CALCRIM No. 703 as
follows:

“If you decide that the defendant is guilty of first
degree murder but was not the actual trigger puller, then, when you consider
the special circumstances of felony murder and murder by a gang member, you
must also decide whether the defendant acted either with intent to kill or with
a reckless indifference to human life.

“In order to prove these special circumstances for a
defendant who is not the actual killer but who is guilty of first degree murder
as an aider and abettor, the People must prove either that the defendant
intended to kill, or the People must prove all of the following:

“1. The
defendant’s participation in the crime began before and continued during the
killing;

“2. The defendant
was a major participant in the crime; and

“3. When the
defendant participated in the crime, he acted with reckless indifference to
human life.

“A person acts with reckless indifference to human life
when he knowingly engages in criminal activity that he knows involves a grave
risk of death.

“The People do not have to prove that the actual killer
acted with intent to kill or with reckless indifference to human life in order
for the special circumstances to be true in this case.

“If you decide that the defendant is guilty of first
degree murder but you cannot agree whether the defendant was the actual killer,
then in order to find this special circumstance to be true you must find either
that the defendant acted with intent to kill or you must find that the
defendant acted with reckless indifference to human life and was a major
participant in the crime.

“If the defendant was not the actual killer, then the
People have the burden of proving beyond a reasonable doubt that he acted
either with the intent to kill or with reckless indifference to human life and
was a major participant in the crime for the special circumstances to be
true. If the People have not met this burden,
you must find these special circumstances have not been proven true for this
defendant.”

Defendant contends the combination of the foregoing
instructions, as applied to an aider and abettor, erroneously permitted the
jury to find the gang special circumstance true without a finding that he
intended to kill the victim. The gang
special circumstance, section 190.2, subdivision (a)(22), applies where “[t]he
defendant intentionally killed the
victim while the defendant was an active participant in a criminal street gang
. . . and the murder was carried out to further the activities of the
criminal street gang.” (Italics
added.) According to defendant, a
finding that he was a major participant in the crime and acted with reckless
indifference will not support a finding under this provision.

The People concede error.
Section 190.2, subdivision (a)(22), applies both to an actual killer and
an aider and abettor. However, in either
case, the prosecution must prove the defendant acted with intent to kill. (See People
v. Ybarra (2008) 166 Cal.App.4th 1069, 1085-1086; § 190.2, subd.
(c).)

The first paragraph of CALCRIM No. 703 reads: “If you decide that (the/a) defendant is
guilty of