P. v. Salinas

Filed 11/14/08 P. v. Salinas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendants David Jacinto Salinas and Manuel Louis Madril, who are admitted Norteo gang members, were with a group of men in a park when they robbed two teenagers who happened to walk by. Defendants then stole a minivan while attempting to escape after the robbery. The minivan sped through a red light and hit a car in the intersection, causing the death of the driver of that car. As a result, defendants were convicted after jury trial of murder during the commission or attempted commission of a robbery (Pen. Code, 187),[1] two counts of second degree robbery ( 211, 212.5, subd. (c)), and vehicle theft (Veh. Code, 10851, subd. (a)). The jury also found as to both defendants that the robberies and vehicle theft were committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1)(C)), and as to Salinas only that he personally used a deadly or dangerous weapon, a bottle, during the commission of one of the robberies ( 12022, subd. (b)(1)). The court found that Salinas had a prior serious felony conviction that also qualified as a strike ( 667, 1170.12). After the court denied Salinass request to dismiss the strike under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court sentenced him to the indeterminate term of 55 years to life consecutive to the determinate term of 22 years. The court sentenced Madril to the indeterminate term of 25 years to life consecutive to the determinate term of 13 years.

On appeal, both defendants contend that the court erred in failing to instruct the jury on theft as a lesser included offense of robbery, the court erred in giving CALJIC No. 2.11.5, there is insufficient evidence to support the criminal street gang enhancements, and imposition of a concurrent term for vehicle theft violates section 654. Salinas separately contends that the court erred in refusing to instruct on vehicular manslaughter and/or gross vehicular manslaughter while intoxicated, the court abused its discretion by denying his request to strike his strike prior, and his sentence constitutes cruel and unusual punishment. We will modify both defendants judgments by ordering the sentence imposed on the vehicle theft count stayed pursuant to section 654. We will also order modification of Salinass abstract of judgment to correct clerical error. As so modified the judgments will be affirmed.

Salinas has also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In the petition, defendant seeks a resentencing hearing. We have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.264(b)(4).)

BACKGROUND

Defendants were charged by information with first degree murder ( 187; count 1), two counts of second degree robbery ( 211, 212.5, subd. (c); counts 2 & 3), and vehicle theft (Veh. Code, 10851, subd. (a); count 4). The information further alleged as to both defendants that the offenses were committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1)(C)); and as to Salinas only that he personally used a deadly and dangerous weapon, a bottle, in the commission of count 2 ( 12022, subd. (b)(1)), and that he had a prior serious felony conviction that also qualified as a strike ( 667, 1170.12).

The Trial Evidence

The Current Offenses

Andrew Satterwhite, who was 17 years old in October 2005, testified under a grant of immunity[2] that on the evening of October 8, 2005, he and Robert Conrad walked through Boggini Park on their way home from a friends house. It was dark, but they could see a group of 10 to 20 men by the picnic tables in the park. One of the men asked them, Why are you coming up on us? Satterwhite responded,  Its not like that. The man asked, What do you claim? Satterwhite thought that the man was asking him if he was in a gang, so he responded that he didnt claim anything. The group of men surrounded Satterwhite and Conrad and one of the men shook Satterwhites hand and said Its Norte. The man then told Satterwhite and Conrad to empty their pockets and said Its Capitol Park. 

A man hit Satterwhite in the left eye and in the mouth and broke a 40-ounce beer bottle over his head. His head started bleeding and he fell to the ground. While reaching towards his back waistband, the man said, Dont make me get the gun. The man took off the Larry Bird Celtics jersey, the white T-shirt, and the white Nike shoes that Satterwhite was wearing. The group of men started running away so Satterwhite and Conrad ran in the opposite direction. Although Satterwhite saw a police car nearby, he did not run towards it because he wanted to go home. His parents reported the incident to the police.

Satterwhite went to the Regional Medical Center where he received six staples in his head and stitches on his right arm for cuts from the broken beer bottle. While he was at the hospital, he told officers that a man who hit him had San Jo tattooed on his neck. Officers brought Satterwhites shoes and Conrads Raiders jersey to Satterwhite and he identified them. Officers also showed him two men. Satterwhite thought that one of the men looked like the man who hit him with the beer bottle and then took his jersey.[3] He was asked to, but could not, identify a man who at the time was lying on a hospital stretcher.

Conrad,[4] who was 17 years old at the time of trial, testified that on October 8, 2005, while he and Satterwhite were walking through Boggini Park around 9:30 p.m. on their way home from a friends house, they were stopped by a group of about 20 men. It was dark but at first the group seemed to be friendly and somebody shook Satterwhites hand. The men then said, Whats up, and had Conrad and Satterwhite sit down at a picnic table because the men did not know them. Conrads black New York Yankees baseball cap was hit off his head and the men told Conrad and Satterwhite to empty their pockets. Conrad took a brush, a washcloth, and some papers and keys from his pockets.

The men told Satterwhite to take off his jersey. When Satterwhite did not comply, he was hit in the head with a bottle, thrown to the ground, and his jersey and shoes were taken off him. Somebody hit Conrad on the back of his head, slamming it onto the picnic table. Because of all of this, Conrad decided to do whatever the men asked him to do. He removed his Porter Raiders jersey. Somebody pulled his T-shirt, chain and R pendant off him, so he removed his earrings. When the group of men left them, Conrad and Satterwhite ran out of the park. They went to a friends house and discussed the incident before going home. Conrad did not report the incident to the police.

San Jose Police officers Stanley Gaspar and Melinda ONeil were dispatched to Boggini Park around 9:23 p.m. on October 8, 2005, due to a 911 report that there were 20 to 30 people in the park, that there might be fight, and that there were threats of a shooting. When the officers arrived around 9:26 p.m., Gaspar saw people running through the park and vehicles driving away in all directions, some with their headlights off. Gaspar and other officers contacted a group of six to eight people at the park and pat searched them for weapons. While ONeil was assisting Gaspar, she was notified around 9:35 p.m. that there was a fatal accident involving a van at Quimby and Tully Roads. ONeill left for the accident scene, where she interviewed witnesses. After Gaspar ensured himself that nobody in the park had a weapon and that nobody was hurt, he also responded to the accident scene. Officer Catherine Foley, who had been dispatched to Boggini Park at 9:27 p.m., left the park for the accident scene around the same time as Officer Gaspar.

Officers Kendra Spath, James Gonzalez and Michael Clark were dispatched to Boggini Park at 9:31 p.m. on October 8, 2005. While Officers Spath and Gonzalez were eastbound on Quimby Road, a blue minivan sped westbound past them with its headlights off. The dispatcher broadcast that a vehicle matching the description of the minivan had just been stolen. Spath reported that she had seen the minivan traveling westbound on Quimby Road, but she and Gonzalez did not attempt to follow the minivan. Before they arrived at Boggini Park, Spath and Gonzalez were redirected to an injury accident at Tully and Alvin,[5] so they turned around and headed westbound on Quimby. When they arrived at the intersection of Quimby and Tully,[6] the blue minivan they had seen earlier was wrapped around a signal pole on the west side of the intersection. Spath reported the accident.

Officer Clark was eastbound on Tully Road on his way to Boggini Park when he was dispatched to an injury accident at Tully and Alvin. He turned around and headed westbound on Tully toward Alvin. However, when he reached Quimby, he saw a blue minivan wrapped around a pole and on fire. He had previously heard from dispatch that a blue minivan had been reported stolen. He reported the accident, including the license plate of the minivan. He then checked the minivan for any occupants and tried to put out the fire with his fire extinguisher, but was not able to put it out.

On the evening of October 8, 2005, Rigoberto Cardenas drove his blue Ford minivan to his sister-in-laws house on Castleton Drive near Quimby Road in San Jose. He parked in the driveway and left his keys in the ignition and the engine running when he went inside. The minivan was gone within a few minutes and he had not given anyone permission to take it. The theft was reported to 911. About 30 minutes later the police notified Cardenas that they had found the minivan. They called again around 2:00 or 3:00 a.m. the next day, at which time Cardenas went to the intersection of Tully and Quimby Roads where he found the minivan smashed. Inside the minivan were several items that did not belong to Cardenas.

Around 9:30 p.m. on October 8, 2005, Quyen Tiet witnessed a collision at the intersection of Tully and Quimby Roads. Tiet was on Tully Road about one-half block from the intersection when a minivan sped past him. The minivan accelerated towards the intersection as the stoplight was turning red, entered the intersection on the red light, and hit the drivers side of a car. Tiet thought he saw four people get out of the minivan. He called 911.

Antonio Gomez and Liliana Baez were on Tully Road slowing down for the stoplight at Quimby Road when they witnessed the collision. When the light turned green for Quimby Road, a red Honda Civic started into the intersection. A minivan with its headlights off sped past Gomez and Baez, entered the intersection on the red light, hit the drivers side of the Honda, and then hit a pole. The Honda spun and came to rest between 80 and 110 feet away. Gomez and Baez saw two men get out of the drivers side of the minivan and run towards a shopping center. Gomez pulled over, got out of his car, and yelled at the men to stop. The two men stopped for a moment then continued on. Gomez and Baez saw a third man get out of the passenger side of the minivan. Gomez was able to stop the third man, who collapsed, and Gomez dragged the man over to the sidewalk. Gomez then checked on the two occupants of the Honda. He got no response from the woman driver; the male passenger drifted in and out of consciousness. Baez identified photos of Salinas and Joseph Vargas as two of the men who got out of the minivan after the collision. Gomez identified a photo of Vargas as the man he stopped after he got out of the passenger side of the minivan, and a photo of Salinas as one of the two men who got out of the drivers side of the minivan and ran away.

Sandra Ramirez was with her son in a car on Quimby Road at the Tully Road stoplight when the collision occurred. She did not see the minivan hit the red Honda, she just heard the noise and saw the aftermath of the collision. The minivan came to rest against a traffic signal post. She saw two men jump out of the minivan but she did not see where they went. Her son got out of their car, ran to the Honda, and quickly ran back. He said that it looked like a woman was dead. Ramirez called 911.

Officer Foley prepared the accident report for the collision. Myra Aguirre was identified as the deceased driver of the Honda and Hugo Garcia was identified as the injured passenger. Aguirre died instantly as a result of blunt impact to her head and torso which caused both her brain stem and her aorta to sever. Aguirre also sustained fractures of her ribs, left arm bone, both leg bones, and skull, and abrasions throughout her body. Garcia was taken from the scene of the collision in an ambulance. He had lacerations above both eyes and on his right leg.

Two bags of items were taken from the minivan to the Regional Medical Center and shown to Satterwhite. Satterwhite identified his shoes and Conrads jersey. He was not able to identify the black Nike shoes, a black T-shirt with 408 written in red, or a black hat. Five white T-shirts and a New York Yankees hat were found on the front passenger floorboard of the minivan on October 11, 2005, after the minivan was taken to the police storage lot.

Officer Kevin Cassidy testified as a collision reconstruction expert that the minivan was approximately 392 feet from the intersection when the signal turned red, and that he did not find any evidence that the driver of the minivan applied the brakes prior to entering the intersection. The minivan struck the Honda before the Honda was halfway through the intersection. At the time of collision, the Honda was traveling about 18 miles per hour and the minivan was traveling about 58 miles per hour.

After arriving at the scene of the accident, Officer Joseph Freitas was directed to go to school grounds north of the accident scene in order to look for the men who had fled from the minivan. He was then directed by a witness to a pickup truck parked in a bakery parking lot. Officer Freitas found Salinas lying face down underneath the pickup truck and several officers ordered Salinas out from underneath the truck. Salinas complied with the orders and was taken into custody. Salinas, an admitted Norteo gang member, had a tattoo of an X and a 4 behind his left ear, EHP tattooed on his left leg just above the knee, four dots along the knuckles of one hand and a single dot along one of the knuckles of his other hand. His nose was bleeding and he had abrasions on his chest, face, and hands, lacerations on his forearms, and glass fragments in his hair and face. An officer transported Salinas to the police department where a blood sample and pictures of Salinass injuries were taken. The officer then transported Salinas to Regional Medical Center for viewing by an assault victim.

Around 1:30 a.m. on October 9, 2005, officers were dispatched to the crime scene at Boggini Park. On or around a picnic table in the middle of the park they found a broken glass beer bottle, some blood, a pair of white Nike shoes, a pair of red knit gloves, a key with a blue coil, a lighter, a white wash cloth, a $5 bill, and some jewelry. The jewelry consisted of two earrings, a chain necklace, and an R pendant.

Madrils family took him to Valley Medical Center on the night of October 8, 2005. Lisa Delatorre,[7] Madrils sister, heard from family members that Madril might have been in a car accident that night and saw that Madril had bruises on his leg and head, and that his tongue was cut and swollen. Lisa told her husband Ricardo that Madril might have been in a car accident. When Ricardo later learned that the woman who was killed in a car accident that night was one of his nieces friends, he called the police. Ricardo told the police that Madril had been in the hospital due to injuries he received on the night of October 8, 2005, and that the injuries might have been caused by the car accident that occurred on Tully Road. Lisa told the police that Madril told her that he had been in a car accident on Tully Road and that he had fled from the accident because he had been in a stolen car. Lisa also said that Madril was flashing what she believed were gang signs while he was in the hospital waiting area, and that it upset her.

Madril and Rachel Acosta, his mother, stayed overnight at her nephews house after Madril was released from the hospital. Although Acosta asked Madril how he was injured, Madril did not respond. The next day, Madril wrote Acosta a note asking her to take him to the home of his girlfriend Christina Balandra in Tracy. Acosta took him there. Madril was arrested at Balandras home on October 13, 2005. At the time, Madril was wearing a red T-shirt. An admitted Norteo gang member, Madril has X4 tattooed in red on one of his fingers. He also has ESSJ, standing for East Side San Jose, Norte, and 408 within a Huelga Bird tattooed on his left forearm.

On the night of October 8, 2005, Kristopher Bal heard about the incident in which Satterwhites jersey was stolen. About an hour after learning about the incident, Bal called the phone number of his friend Jorge Trejos cell phone. Trejo was a Norteo gang member.[8] Somebody Bal did not recognize answered the phone. A few minutes after their conversation, a Black man named Timothy brought Bal a bloody white Larry Bird Celtics jersey, Trejos cell phone, and the jacket Bal had loaned to Trejo earlier that night. The man said that he had found the items in the park, and Trejo later told Bal that he had been in Boggini Park. Bal identified the black Nike shoes taken from the minivan on October 8, 2005, as belonging to his friend Artie, and the black hat with the red Huelga bird as the hat that he had loaned to Trejo along with his jacket.

On October 13, 2005, Conrad was shown a photographic lineup. He identified Salinas as the man who smashed the beer bottle over Satterwhites head. He could not identify the black hat, the black T-shirt with the red number 408, or the black shoes that were found in the minivan.

Vargas, who was 17 years old in October 2005 and claimed Norteo, testified pursuant to a plea agreement[9] that he was at Boggini Park with 15 to 20 other people on the night of October 8, 2005. It was dark, and he drank malt liquor, smoked marijuana, and talked with others in the group. Salinas and Madril were part of the group. After about 15 or 20 minutes, around six teenagers came up to the group and asked for cigarettes. Members of Vargass group asked the teenagers where they were from and if they claimed. The teenagers said that they do not claim and then everybody shook hands. They were leaving when Salinas, while putting his right hand behind his back as though he was going to pull out a gun, told the teenagers to sit down on a picnic bench or they would get shot. Salinas also yelled,  Capitol Park. The teenagers sat down.

The men in Vargass group told the teenagers to empty their pockets and to put the items on the picnic table. Salinas looked through the items and slapped each of the teenagers on the head. He hit one of the teenagers on the head with a 40-ounce beer bottle, grabbed him, threw him on the ground, and took his jersey. Madril went through the wallets on the table, then hit and kicked a different teenager and took off his shirt. Vargas watched but did not intervene. Salinas told Vargas to pick up the pile and then the group ran off. Vargas picked up the shirts and jerseys that were on the ground and followed Salinas, Madril, and a teenaged member of his group. About one block from the park, the four of them stopped and Salinas told Vargas to call his friend to come pick them up. Vargas tried calling his friend while they continued walking. When they saw an empty van parked with its engine running, Salinas told them to wait and then ran to the van, jumped in, and drove it back to them. Vargas jumped into the front passenger seat of the van with the items he had grabbed at the park and Madril and the teenager jumped into the back.

Salinas sped off and turned onto Quimby Road without stopping at stop signs. Vargas told Salinas to slow down but Salinas told him to shut up. Salinas sped through a red light at White Road. Vargas saw two patrol cars heading in the opposite direction, and Madril said that cop cars were there. Salinas said, I got it, drove faster, and turned onto Capitol Expressway. He continued speeding and turned onto Tully Road, running another red light. He continued speeding on Tully Road so Vargas put his seat belt on because he thought they were going to run into something. Vargas saw a red light at an intersection ahead of them but did not feel Salinas step on the brakes or swerve. The van hit a red car and then hit a pole. Vargas heard doors open but he did not see where Salinas, Madril, or the teenager went. Vargas climbed out a window because his door was jammed, and then he collapsed and crawled to the sidewalk. The police and paramedics came and he was taken to the hospital by ambulance.

An officer took Vargas into custody at the Regional Medical Center and transported him to Juvenile Hall. The officer also collected Vargass clothes and booked them into evidence. Blood samples taken from Vargas around 11:15 p.m. on the night of the incident tested negative for alcohol, but the samples were not tested for marijuana. Madrils blood was found on the passenger-side airbag and the passenger seat armrest in the minivan. Madril and Salinas were possible contributors of DNA found on the drivers side airbag and Salinas and Vargas were possible contributors of DNA found on the steering wheel.

The Gang Evidence

San Jose Police Detective Christopher Dominguez testified as an expert in the operation, activities, and membership of Hispanic criminal street gangs that, in San Jose, gang members predominately align with Norteo gangs. Currently, there are around 40 different Norteo street gangs in San Jose, organized around the various geographic areas of the city. Members of the different Norteo gangs will often associate or hang out with each other. Norteos identify with the color red and the number 14. They act out against Sureo gang members, who identify with the color blue and the number 13, as well as against people who are not gang-affiliated. Norteos will steal somebodys clothing, such as a shirt or cap, as an act of intimidation or humiliation. When an individual Norteo gang member commits an assault or robbery, other gang members present are expected to support or assist in whatever way necessary, including helping the individual get away afterwards.

San Jose Police Sergeant Shawny Williams testified as an expert in the operation, membership, and criminal activities of Hispanic street gangs that El Hoya Palmas is a San Jose Norteo gang. Norteo gang members identify with the color red and the number 14. The black T-shirt with the number 408 in red and the black hat with a red Huelga Bird found in the minivan are consistent with the types of clothing that Norteo gang members wear. The Huelga Bird is associated with Norteo gangs as well as with the United Farm Workers. Norteo gang members view people wearing clothing consistent with Norteo gangs but denying Norteo gang membership as disrespectful and would take action against them. If a gang member took the clothing off such a person it would enhance the gang members reputation within the gang.

Detective Dominguez testified that the El Hoya Palmas gang had approximately 45 members on the east side of San Jose in 2005. One of the primary activities of the gang was the commission of crimes listed in section 186.22, subdivision (e). In Detective Dominguezs opinion, based on Salinass tattoos and his police contacts, Salinas is a member of El Hoya Palmas. East Side San Jose is an ongoing Norteo criminal street gang with approximately 300 members. One of its primary activities has been the commission of crimes identified in section 186.22, subdivision (e). In Detective Dominguezs opinion, based on Madrils tattoos and admissions, Madril is associated with East Side San Jose. Also in Detective Dominguezs opinion, the theft of Satterwhites and Conrads clothing and property and the physical force used against them was done in association with other gang members and was for the benefit of a gang.

The Verdicts and Findings on the Prior, the Romero Motion, and Sentencing

On January 29, 2007, the jury found both defendants guilty of first degree murder during the commission or attempted commission of a robbery ( 187; count 1), two counts of second degree robbery ( 211, 212.5, subd. (c); counts 2 & 3), and vehicle theft (Veh. Code, 10851, subd. (a); count 4). The jury found true the allegations that Salinas personally used a deadly and dangerous weapon, a bottle, during the commission of count 2 ( 12022, subd. (b)(1)), and as to both defendants that counts 2 through 4 were committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1)), but found not true the gang allegations as to count 1. On January 30, 2007, Salinas waived his right to a jury trial on his alleged priors and, after a court trial, the court found true the allegations that Salinas had a prior serious felony conviction that also qualified as a strike ( 667, 1170.12).

On March 23, 2007, the court sentenced Madril to state prison for the indeterminate term of 25 years to life consecutive to the determinate term of 13 years. The determinate term consists of the midterm of three years on count 2, plus 10 years for the gang enhancement, with a concurrent total term of five years on count 4. The court stayed the total term of 13 years on count 3 pursuant to section 654.

On April 16, 2007, Salinas filed a request that the court strike his strike under section 1385 and Romero, supra, 13 Cal.4th 497. On April 23, 2007, after hearing argument from both parties, the court denied Salinass request and sentenced him to the indeterminate term of 55 years to life consecutive to the determinate term of 22 years. The indeterminate term consists of double the term of 25 years to life for count 1 plus five years for the prior serious felony enhancement. The determinate term consists of six years, or double the midterm, for count 2, plus 10 years for the gang enhancement, one year for the weapon enhancement, and five years for the prior serious felony enhancement, and a concurrent total term of seven years for count 4. The court stayed a total term of 16 years on count 3.

DISCUSSION

Instruction on Theft as a Lesser Included Offense of Robbery

Salinas requested that the court instruct the jury on petty theft as a lesser included offense of the robberies charged in counts 2 and 3. He contended that the jury could find that Satterwhite and Conrads property was still in the park when they left the park, and that it was then taken by people who had knowledge that they had no right to the property: We have recently possessed stolen property, or property that one person claims is his, some of which is found in the possession of the defendants later on, there has to be some explanation for that; and if that is the case, the jury could infer that there was a theft that occurred. But if the exertion of force doesnt occur in order to effectuate taking of the property, its not a robbery; its a theft.

The prosecutor argued that there was no evidence to support a finding of after-acquired intent to take the property: There was no witness to say that after they left the park, the defendants remained behind and then somebody decided lets take the property. [] The evidence that we did have was the victims testimony that it was taken from them; that the defendants left, that they were then able to leave and they left. . . . Vargas testified that he was told as items were being taken, before the defendants scrambled away and before the victims ran away, he was told, get the stuff; get the property. Madril submitted the matter without argument.

The court ruled, based on its recollection of the evidence, based on the arguments and comments I heard this afternoon, that the evidence did not support giving a lesser included offense instruction as to theft on counts 2 or 3.

Both defendants now contend that the trial court erred and violated their due process rights by failing to instruct on theft as a lesser included offense of the charged robberies. They argue that there was evidence which suggested that there was not a robbery, but a gang assault on other gang members followed by the theft with an after-formed intent to steal a few insignificant t-shirts and sneakers as follows: Satterwhite and Conrad testified that no money was taken from them. Vargas testified that approximately six teenagers were in the group assaulted by defendants in the park. The items found in the minivan after the crash were of minimal value. Items were left behind in the park, including clothing consistent with gang clothing, and jewelry. Satterwhites Larry Bird Celtics jersey was returned to Bal a few hours after the assault.

The Attorney General contends that the record establishes that defendants committed robbery and not theft. We agree with the Attorney General.

It is well settled that theft is a lesser included offense of robbery, which includes the additional element of force or fear. (People v. Ortega (1998) 19 Cal.4th 686, 694; People v. Melton (1988) 44 Cal.3d 713, 746.) [A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence . . . . [Citations.] [Citation.] To protect this right and the broader interest of safeguarding the jurys function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. [Citation.] Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.]  Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [Citation.] [Citation.] (People v. Cunningham (2001) 25 Cal.4th 926, 1007-1008.)

It is not error to refuse a defendants requested instruction on a lesser included offense when there is no substantial evidence that would have supported a conviction of the lesser offense. (See People v. Neely (1993) 6 Cal.4th 877, 897; People v. Marshall (1996) 13 Cal.4th 799, 848-849.) Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.] (People v. Mendoza (2000) 24 Cal.4th 130, 174.)

The record in this case shows that Satterwhite and Conrad testified that they were assaulted and threatened after they failed to obey a demand that they empty their pockets. Satterwhite testified that his jersey was taken from him after he was hit over the head with a beer bottle and thrown to the ground. Conrad testified that he took off his own jersey after seeing what happened to Satterwhite. Vargas testified that Satterwhite and Conrad were told to empty their pockets after defendants threatened them, and that Satterwhite was told to take off his jersey after being hit over the head with a beer bottle and being thrown to the ground. Satterwhite and Conrad testified that the group of men from the park left the park before they did. Vargas testified that Salinas told him to grab the pile before the group fled from the park, and that he just grabbed the items that were on the ground and he left the items that were on the table.

Defendants argue that the record supports a finding that Satterwhite and Conrad were acting like gang wannabees, thus the encounter in the park was between gang members and gang wannabees, and that Satterwhite and Conrad testified at trial that they were robbery victims in an effort to hide the fact that they were gang wannabees. Defendants further argue that because Vargas did not take all of the items from the park and Satterwhites jersey was voluntarily returned, the jury could have found that whoever took the items had no intent to permanently deprive the victims of them. However, this is mere speculation and is insufficient to require the giving of an instruction on the lesser offense of theft. (People v. Mendoza, supra, 24 Cal.4th at p. 174.) The record is clear that the items were taken from the victims by use of force or fear. There was no evidence that the offenses were less than that charged, that is, that they were theft rather than robbery. No error or due process violation has been shown.

Instructions on Vehicular Manslaughter

In addition to giving the jury general instructions on homicide and murder (CALJIC Nos. 8.00, 8.10, 8.11) the court instructed the jury on felony-murder during the commission of a robbery (CALJIC Nos. 8.21 and 8.21.1), second degree murder (CALJIC Nos. 8.30 and 8.31), and both voluntary and involuntary manslaughter (CALJIC Nos. 8.37, 8.40, 8.45, 8.46, 8.50, 8.51, 8.55). Salinas requested that the court also instruct the jury on vehicular manslaughter not involving drugs or alcohol (CALJIC No. 8.90) and gross vehicular manslaughter while intoxicated (CALJIC No. 8.93). The court denied the request, finding that vehicular manslaughter is a lesser related offense, not a lesser included offense, to the charged count of murder.

Salinas now contends that the court erred and denied him due process by failing to give the requested instructions. We disagree. Gross vehicular manslaughter while intoxicated may be a lesser related offense of murder, but it is not a lesser included offense. (People v. Sanchez (2001) 24 Cal.4th 983, 992-993 (Sanchez).) Although it generally is true that manslaughter is a lesser included offense of murder, because generally manslaughter simply involves an unlawful killing of a human being without malice, gross vehicular manslaughter while intoxicated -- like assault with a deadly weapon -- requires proof of additional elements that are not included in the offense of murder or in other forms of nonvehicular manslaughter. (Id. at p. 992.) The same must be said about ordinary vehicular manslaughter.

A criminal defendant has no right to requested instructions on lesser related offenses. (People v. Birks (1998) 19 Cal.4th 108, 112-113.) A contrary rule can be unfair to the prosecution, and actually promotes inaccurate factfinding, because it gives the defendant a superior trial right to seek and obtain conviction for a lesser uncharged offense whose elements the prosecution has neither pled nor sought to prove. (Ibid.) Under Birks, supra, 19 Cal.4th 108, trial courts can no longer instruct juries on such related, but not included, offenses without the prosecutors permission. (People v. Martinez (2002) 95 Cal.App.4th 581, 586.) Here, the record reveals that the prosecutor objected to the giving of CALJIC Nos. 8.90 and 8.93, citing Sanchez. Accordingly, the court did not err in refusing Salinass request to instruct the jury with CALJIC Nos. 8.90 and/or 8.93.

CALJIC No. 2.11.5

Vargas testified that he was charged with murder, two counts of robbery, and vehicle theft in connection with the incidents at issue here and that, pursuant to a plea agreement involving his testimony at defendants trial, he admitted the two counts of robbery and the remaining charges were dismissed. Vargas further testified that he and a teenager who had been in the park during defendants robberies were also in the minivan with defendants at the time Salinas drove through the red light and hit the Honda. Other witnesses testified that they saw between two and four people get out of the minivan after it hit the Honda.

The court stated on the record during the discussions regarding jury instructions that [CALJIC No.] 2.11.5 will be given as modified. At the close of trial, the court instructed the jury pursuant to CALJIC No. 2.11.5 as follows: There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on trial. [] There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your duty is to decide whether the People have proved the guilt of each defendant on trial. Neither an objection to the instruction as given nor a request by defense counsel for a limiting instruction appears in the record.

Both defendants now contend that the court erred in giving CALJIC No. 2.11.5 without a limiting statement that it did not apply to Vargas. CALJIC No. 2.11.5 effectively told the jury to ignore the question of whether the immunity affected [Vargass] bias and credibility in blaming [defendants] for the robberies. Defendants also note that [t]he Use Note for CALJIC No. 2.11.5 explicitly prohibits this instruction from being given if it pertains to a prosecution witness.

The purpose of CALJIC No. 2.11.5 is to discourage the jury from irrelevant speculation about the prosecutions reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unknown perpetrators. (People v. Price (1991) 1 Cal.4th 324, 446.) Generally, the instruction should not be given if the other person who may have been involved testifies at trial because there is the possibility that CALJIC No. 2.11.5 could prevent a jury from considering the coparticipants incentive to lie. (People v. Hardy (1992) 2 Cal.4th 86, 189-190; People v. Cox (1991) 53 Cal.3d 618, 667.) Accordingly, where a coparticipant testifies and another does not, CALJIC No. 2.11.5 either should not be given or should be limited to preclude its application to the testifying coparticipant. (People v. Cain (1995) 10 Cal.4th 1, 34-35, fn. 9; People v. Sully (1991) 53 Cal.3d 1195, 1218.)

The California Supreme Court considered in People v. Jones (2003) 30 Cal.4th 1084 (Jones) a version of CALJIC No. 2.11.5 that is similar to the version given by the trial court in the present case. In Jones, the court stated, [W]e have often said that trial courts should not give CALJIC No. 2.11.5 in an unmodified form when, as here, a person who might have been prosecuted for the crime has testified at trial. [Citations.] (Jones, supra, at p. 1113.) However, the court also stated that although it is a mistake to give CALJIC No. 2.11.5 where an unjoined coparticipant has testified, the mistake is not error when, as here, the instruction is given with the full panoply of witness credibility and accomplice instructions. (Jones, supra, at p. 1114, quoting People v. Lawley (2002) 27 Cal.4th 102, 162.)

The trial court in this case instructed the jury with CALJIC Nos. 2.20 [believability of a witness], 2.23.1 [believability of a witnesspast criminal conduct], 2.27 [sufficiency of testimony of one witness], 3.11 [testimony of accomplice must be corroborated], 3.12 [sufficiency of evidence to corroborate an accomplice], 3.13 [one accomplice may not corroborate another], 3.14 [criminal intent necessary to make one an accomplice], 3.16 [witness accomplice as matter of law], and 3.18 [testimony of accomplice to be viewed with care and caution]. The court also instructed the jury to consider the instructions as a whole and to not single out one instruction to the exclusion of another. (CALJIC No. 1.01; see, e.g., People v. Sully, supra, 53 Cal.3d at pp. 1218-1219; People v. Cox, supra, 53 Cal.3d at p. 667.) As the instructions as a whole correctly instructed the jurors regarding Vargass credibility, the jury was aware that Vargas had entered into a plea agreement regarding the same charges that were brought against defendant, and there was testimony that a fourth person was with Vargas and defendants during the robberies, vehicle theft, and fatal accident, we cannot say that the court erred in giving CALJIC No. 2.11.5 without a limiting instruction. (Jones, supra, 30 Cal.4th at p. 1114.)

Street Gang Enhancement

Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the groups primary activities is the commission of one or more statutorily enumerated offenses; and (3) the groups members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.] (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) Accordingly, [t]o trigger the gang statutes sentence-enhancement provision ( 186.22, subd. (b)), the trier of fact must find that one of the alleged criminal street gangs primary activities is the commission of one or more of certain crimes listed in the gang statute. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith).)

Both defendants contend that there was insufficient evidence of the primary activity element required for the gang enhancement because the experts opinion on the issue lacked an adequate factual foundation. Although Detective Dominguez testified that, in his opinion, the commission of crimes listed in section 186.22, subdivision (e), is one of the primary activities of the El Hoya Palmas and East Side San Jose Norteo gangs, he did not identify any specific crime listed in the statute. Nor did the detective identify any specific gang member who committed such crimes. Madril argues that [s]uch conclusory testimony cannot be considered substantial evidence as to the nature of the gangs primary activities. (In re Alexander L. (2007) 149 Cal.App.4th 605, 612; . . . .) Salinas argues that [e]vidence of the charged offenses, without more, is insufficient to establish the primary activity prong of the gang enhancement.

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 groups chief or principal occupations. [Citation.] (Sengpadychith, supra, 26 Cal.4th at p. 323.) Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the groups primary activities. Both past and present offenses have some tendency in reason to show the groups primary activity . . . . (Ibid.) However, such evidence alone is not necessarily sufficient to establish the gangs primary activities. (Ibid.) Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605 [(Gardeley)]. (Sengpadychith, supra, at p. 324.)

Defendants contend that Detective Dominguezs opinion testimony varied dramatically from that presented in Gardeley. They argue that the expert in Gardeley gave his opinion that the primary activity of the relevant gang was the sale of narcotics, but that the gang also engaged in witness intimidation, both of which are offenses listed in section 186.22, subdivision (e). They further argue that the expert in Gardeley testified that he based his opinion on conversations with the defendant and with other members of the gang, his personal investigations of hundreds of crimes committed by gang members, and information from his colleagues and various law enforcement agencies. In Gardeley, unlike here, the court knew both what information the expert was relying upon, and where that information originated. . . . [] Here, there was none of the foundation for the experts opinion called for in Gardeley.

We are not persuaded by defendants arguments. Detective Dominguez testified as a gang expert that both El Hoya Palmas and East Side San Jose were Norteo gangs in San Jose and that members of the gangs often associate with or hang out together. Detective Dominguez further testified that Norteo gang members act out against non-gang members by intimidating them and by taking their property in order to show that they control the neighborhood; that when a gang member commits a crime such as assault or robbery the other gang members present are expected to support or assist them in whatever way necessary; that he has countless times spoken to people in the hospital, including both Norteo and Sureo gang members, who have been very badly beaten by a Norteo gang member; and that [t]aking anything that you want from someone, part of the gang lifestyle, you see someone walking by, you want something, you take it. It might be a shirt. It might be shoes. It might be a belt. Weve investigated, I think three cases where all they took was a baseball cap.

A gang experts opinion can be based on hearsay evidence, including the experts conversations with gang members, the experts investigation of gang crimes, and the experts conversations with other officers. (Gardeley, supra, 14 Cal.4th at pp. 617-620.) The statute does not require proof of convictions, only proof that enumerated offenses were committed. (In re Leland D. (1990) 223 Cal.App.3d 251, 258.) Here, Detective Dominguez testified that, in his opinion, one of the primary activities of both the El Hoya Palmas Norteo gang and the East Side San Jose Norteo gang was the commission of crimes enumerated in section 186.22, subdivision (e). He testified that he investigated both assaults and robberies involving Norteo gang members, and both assault and robbery are offenses enumerated in section 186.22, subdivision (e). Thus, contrary to defendants arguments, Detective Dominguez testified regarding what offenses the relevant gang members consistently and repeatedly commit, what information he was relying on, and where he got that information.

[E]ither prior conduct or acts committed at the time of the charged offenses can be used to establish the primary activities element of the gang enhancement. (Sengpadychith, supra, 26 Cal.4th at p. 323, quoting People v. Galvan (1998) 68 Cal.App.4th 1135, 1140.) Here, in addition to hearing testimony about prior acts committed by relevant gang members, the jury heard testimony that defendants, admitted gang members, robbed two teenagers in a park and then stole a vehicle in an attempt to get away, all in association with and for the benefit of their respective gangs. Both robbery and vehicle theft are offenses enumerated in section 186.22, subdivision (e). Accordingly, we conclude on this record that there was sufficient evidence to support the jurys finding that one of the primary activities of defendants respective gangs was the commission of statutorily enumerated offenses. (Sengpadychith, supra, 26 Cal.4th at pp. 323-324.)

Section 654

When imposing the determinate term portion of Madrils sentence, the court imposed the midterm of three years on count 2, one robbery count, with a concurrent term of 10 years for the gang enhancement, and a concurrent total term of five years on count 4, the vehicle theft count. The court stayed a total term of 13 years for count 3, the other robbery count, pursuant to section 654. When imposing the determinate term portion of Salinass sentence, the court imposed the midterm of three years, doubled, on count 2, with a concurrent term of 10 years for the gang enhancement, and a concurrent total term of seven years on count 4. The court stayed a total term of 16 years for count 3. Both defendants now contend that the concurrent terms that were imposed on count 4 should have been stayed under section 654, and the Attorney General concedes the issue. We find the concession appropriate.

Section 654, subdivision (a), states in relevant part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Under section 654, courts are generally precluded from imposing separate punishment where a defendant engages in a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute. (In re Adams (1975) 14 Cal.3d 629, 634; People v. Bauer (1969) 1 Cal.3d 368, 376.) The focus of this rule is whether the defendant acted pursuant to a single intent and objective. (People v. Perez (1979) 23 Cal.3d 545, 551-552.) The resolution of this question is one of fact, and the trial courts finding, express or implied, will be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.)

A robbery may continue long after the robber leaves the initial scene of the taking. Robbery is a crime which is frequently spread over distance and varying periods of time. It is generally committed in three phases, which are assault of the victim, seizure of the victims property, and the robbers escape to a location of temporary safety. [Citation.] The crime of robbery is not confined to the taking of property from the victim, and the crime is not completed until the robber has won his way to a place of temporary safety. [Citation.] (People v. Irvin (1991) 230 Cal.App.3d 180, 185.) In recognition of this principle, our Supreme Court has held that when a defendant unlawfully takes a car during the commission of a robbery for the purpose of facilitating escape, the two crimes constitute one indivisible course of conduct justifying a single punishment. (People v. Bauer, supra, 1 Cal.3d at p. 372; People v. Irvin, supra, 230 Cal.App.3d at pp. 184-185; People v. See (1980) 109 Cal.App.3d 76, 84-85.) This is so, even if the victims of the robbery and the vehicle theft are different. (People v. Bauer, supra, 1 Cal.3d at pp. 377-378.)

In this case, it is evident from the record that Salinas stole and drove the minivan in an effort to escape from the scene of the robberies. The record does not show that defendants had reached a location of temporary safety when Salinas took the minivan. Instead, the record shows that Salinas and Madril assaulted and robbed the teenagers in the park and stole the minivan outside the park while attempting to get away, as several police vehicles and officers were arriving at the park in response to reports of threats of violence there at the time the vehicle theft occurred. The robbery and the vehicle theft therefore were part of an indivisible course of conduct for purposes of section 654, and the trial court erred in imposing concurrent terms for count 4. We will order defendants abstracts of judgment modified to stay the sentences imposed on count 4.

Dismissal of Strike

Salinas contends that the trial court abused its discretion by denying his request to dismiss his prior strike. He argues that his felony-murder conviction was due to a traffic accident, which is ordinarily criminally punished as a manslaughter; his underlying felony conviction for robbery was due to forced removal of clothing and jewelry, which might qualify as theft; his prior strike was an assault with a deadly weapon, which occurred in the heat of passion because he learned the victim was having an affair with his wife; and he had a difficult childhood and family history. It does not appear that the trial court ever examined the combination of all those factors.

In People v. Carmony (2004) 33 Cal.4th 367, our Supreme Court set forth the basic principles applicable to a trial courts decision to strike one or more prior strike allegations under section 1385. In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, in furtherance of justice pursuant to . . . section 1385(a). (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) We further held that [a] courts discretionary decision to dismiss or strike a sentencing allegation under section 1385 is reviewable for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) (Carmony, supra, 33 Cal.4th at p. 373.)

In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.] Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at pp. 376-377.)

[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court conclude[es] than an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme. [Citation.] (Carmony, supra, 33 Cal.4th at p. 377.) [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Williams, supra, 17 Cal.4th at p. 161.) (Carmony, supra, 33 Cal.4th at p. 377.)

Salinass probation report states that he was on parole at the time of these offenses after having served a prison term for violating section 245, subdivision (a)(1) [assault with a deadly weapon], his strike prior. Defendant had stabbed a man in the back when defendant learned that the man had been sleeping with his wife. On September 4, 2005, just one month before the present offenses, defendant completed an 11-month county jail term for a misdemeanor conviction for violating section 273.6, subdivision (a) [violating a protective order]. Defendant was 27 years old and had a total of 25 misdemeanor convictions, including five for violating a protective order, four for spousal battery, three for driving with a suspended or revoked license, two for inflicting corporal injury on a spouse, two for hit and run causing property damage, and one each for false imprisonment, resisting arrest, driving under the influence of alcohol, being under the influence of a controlled substance, petty theft, violation of a domestic violence court order, and being drunk in public.

In denying Salinass request to dismiss his prior strike, the court recited the above criminal history as well as Salinass personal historyfinding that Salinas had a very difficult childhood, based on his family, home environment[,] and was provided very little opportunity for success,and his prospectsfinding that Salinas was involved in the construction trade at some time[, however] no employment history or future prospects have been presented. The court also found that Salinass criminality is escalating. The strike prior is not remote. It appears [Salinas] is a Norteo gang member, has been a self-admitted gang member since he was 14 years old. The present offenses involve violent or serious felonies. The strike prior conviction and at least one of the present crimes involved th