P. v. Sanchez

Filed 1/2/08 P. v. Sanchez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of County of Riverside, Mark A. Cope, Judge. Affirmed as modified.

I.

INTRODUCTION

A jury found Frank Sanchez III guilty of murder (Pen. Code,  187)^[1](count 1), and two batteries ( 242) (counts 2, 3). With respect to count 1, the jury found true firearm sentence enhancement allegations pursuant to section 12022.53, subdivisions (d), (e) and a section 186.22, subdivision (b) gang sentence enhancement allegation. The jury also found codefendant Javier Ricardo Betancourt guilty of murder ( 187) (count 1), and two batteries ( 242) (counts 2, 3). With respect to count 1, as to Betancourt, the jury found true a section 12022.53, subdivision (e) firearm sentence enhancement allegation and a section 186.22, subdivision (b) gang sentence enhancement allegation.

The trial court sentenced Sanchez to a total term of 50 years to life, comprised of a term of 25 years to life on count 1 and an additional consecutive term of 25 years to life on the section 12055.53, subdivision (d) enhancement. The trial court sentenced Betancourt to a total term of 50 years to life, comprised of a term of 25 years to life on count 1 and an additional consecutive term of 25 years to life on the section 12055.53, subdivision (e) enhancement. With respect to both defendants, on count 1, the trial court imposed and stayed sentences on the remaining enhancements and, with respect to counts 2 and 3, the court imposed sentences of 180 days each, to be served concurrently with each other and also with the term imposed on count 1.

The defendants raise numerous contentions on appeal. We find no reversible error. The People concede that the trial court erred in imposing and staying sentence enhancements pursuant to section 186.22, subdivision (b) on count 1 in light of the defendants' life sentences. We agree and order the section 186.22, subdivision (b) sentence enhancements stricken. We affirm the judgment as so modified.

II.

FACTUAL BACKGROUND

A. Introduction

The murder at issue in this case occurred while Sanchez and Betancourt were committing a battery on Joseph Flores (Joseph). Joseph's father, Albert Flores (Albert), ran toward the men as they were fighting, while shouting a profanity at Sanchez and Betancourt. Sanchez shot and killed Albert. Sanchez was prosecuted as the perpetrator of Albert's murder, and Betancourt was prosecuted pursuant to the natural and probable consequences doctrine.

B. Events prior to the crimes

Approximately a week and a half before the murder, Betancourt asked Annjeanette Durocher to help him find Francisco Villarino because Villarino owed Betancourt a debt. Durocher, who had a child with Villarino, was living at Betancourt's aunt's house. Durocher agreed to help Betancourt, but was unable to find Villarino that day.

The following day, Durocher, accompanied by Betancourt, located Villarino at a house in San Jacinto. Betancourt and Villarino spoke to each other amicably. A few days later, Durocher and Betancourt discovered Villarino at an apartment at which Armando Moreno and April Flores (April) were living. April's brother, Joseph, was also at the apartment. Betancourt spoke with Joseph. According to Durocher, the two appeared to get along fine. Betancourt and Villarino left the house together without Durocher for approximately an hour. Betancourt and Villarino also appeared to be getting along with each other.

C. The crimes

On October 16, 2002, the night of the murder, at approximately 10:00 p.m., Betancourt telephoned Durocher at her parents' house and asked her if he could see her. A short time later, Betancourt arrived at Durocher's parents' residence in a red truck. Sanchez was in the passenger seat of the truck. Anxiously and with a sense of urgency, Betancourt asked Durocher to help him find Villarino. Durocher agreed to do so.

Betancourt, Durocher, and Sanchez went to Moreno and April's residence. Betancourt told Durocher to stay inside the apartment with April and to ensure that April did not call the police. Durocher went inside the apartment with April. Durocher heard the defendants ask Moreno where Villarino was, in an "extremely aggressive" manner. Moreno told the defendants that he did not know. Durocher heard Sanchez tell Betancourt to "[s]mash on him," and then heard Betancourt and Sanchez beating Moreno. During the beating, Betancourt and Sanchez both said the name of their gang, North Side Colton. Durocher asked April if she knew where Villarino was. April told Durocher to check "the white people's house," which Durocher understood to refer to the house of Tammy Hand and her husband, Steven Hand. The Hands lived next door to April's father, Albert.

Betancourt drove Sanchez and Durocher to the Hands' house and parked across the street from the residence. Durocher got out of the truck, and Betancourt and Sanchez remained near the truck. As Durocher walked toward the Hands' house, she saw a white car parked in front of the house. Albert's niece, Alicia Villalobos, was standing next to the car. Durocher saw Villarino in the passenger seat of the car and Steven Ybanez in the driver's seat. Durocher was aware that Villalobos had previously made various negative comments about her. Durocher began to physically attack Villalobos as Villalobos stood near or next to the white car. When the fight began, Ybanez drove away from the scene with Villarino.

Joseph approached Durocher and Villalobos as they were fighting. Joseph attempted to break up the fight by telling Durocher to "kick back," and pushing her away from Villalobos.^[2] After Joseph pushed Durocher, Betancourt and Sanchez approached Joseph. Betancourt tapped Joseph on his shoulder. Betancourt asked Joseph, "What are you doing putting your hands on [a] [g]ina [girl]?"^[3] Joseph responded to Betancourt in a conciliatory manner, "I'm not even tripping on you." Betancourt and Sanchez started hitting Joseph, and Durocher and Villalobos continued fighting.

In the meantime, Albert and his niece Crystal Ruffino (Crystal), who were inside Albert's house next door, could hear the commotion outside. Albert rushed outside, holding his keys in his hands. The keys were attached to a long strap of material. Durocher saw Albert run toward Joseph and the defendants as they were fighting. Albert was holding something white in his hands. As he approached the three men, Albert said to Betancourt and Sanchez, "Oh, you little mother fuckers." Shortly thereafter, Durocher heard two gunshots.

After Durocher heard the gunshots, she ran to the red truck. When she stopped for a moment in the street, she saw Sanchez pointing a handgun at Joseph's face. Sanchez was within an arm's reach of Joseph. Durocher screamed at Betancourt, "Ricky, no. Tell him not to do it." Durocher continued to run away. She heard no more gunshots.

Shortly thereafter, Sanchez pushed Durocher into the truck, and Betancourt drove the three of them away from the scene. As they drove away, Durocher saw Albert lying in the street. Joseph was by Albert's side screaming for someone to call 911.

From inside Albert's house, Crystal heard Joseph screaming, "Crystal, hurry up. Crystal get out here. They shot my dad." Crystal went outside. She saw Albert's keys in the street next to him, and placed them on his chest. Crystal also saw a bag of marijuana on the street outside of the Hands' house. She placed the bag in the back of a nearby truck. Joseph told Crystal, "They just shot my dad. I can't be here right now."

Steven Hand (Steven), who had been lying in bed, heard the two gunshots. Seconds later, Joseph opened the door to Steven's house and yelled, "They killed my dad." Steven called 911 and Joseph went back outside. Joseph was crying and screaming, "He killed my dad." Joseph paced back and forth and then ran away from the scene. Steven and Tammy Hand remained with Albert until the police arrived. They did not see any keys on or near Albert.

Albert died from a gunshot wound to the chest.

D. The Flight

Betancourt drove Durocher and Sanchez to a convenience store. Sanchez went into the store to purchase beer. While Sanchez was in the store, Durocher asked Betancourt, "Why didn't you tell me there was a gun?" Betancourt responded, "You should have known."

Later that evening, while Durocher, Sanchez, and Betancourt were still in the truck, Sanchez said, referring to Albert, "That fool's going to die . . . I served that fool." Regarding Joseph, Sanchez said, "Somebody was praying for that fool." At some point that evening, Betancourt told Durocher that Sanchez had said that Albert had "cold-cocked" him.

E. Gang evidence

The People presented expert testimony regarding gangs and the behavior of gang members. Fontana Police Officer Ronald Vogelsang testified that when gang members travel outside their own territory, the risk that they will become involved in violence increases. This increased risk is one of the reasons gang members frequently arm themselves in such situations. Officer Vogelsang testified that gang members gain the respect of their fellow gang members by fighting with members of other gangs and by committing crimes for the gang.

According to Vogelsang, gang members expect their fellow gang members to provide "back up" during a fight. Gang members often commit crimes with other gang members in order to intimidate potential witnesses from testifying against gang members. Officer Vogelsang also testified that Sanchez and Betancourt were members of the North Side Colton gang, which Vogelsang described as a "very violent gang."

Officer Vogelsang testified that in his opinion, the murder in this case was committed for the benefit of the North Side Colton gang. Vogelsang stated that he believed Joseph was in "a gang other than North Side Colton." Vogelsang explained that the reasons he believed the defendants committed the crime for the benefit of the gang were that witnesses to the events that night would have understood that Betancourt and Sanchez were from the North Side Colton gang, Betancourt knew that Sanchez was armed, Betancourt and Sanchez were involved in more than one violent incident that evening, and Betancourt was driving while Sanchez had a gun. Officer Vogelsang testified that this evidence supported his opinion that the two defendants were acting together to collect a debt at the time of the murder.

F. The defense

The defense presented evidence that Albert was under the influence of methamphetamine at the time of the murder, and that methamphetamine can cause violent behavior.

III.

DISCUSSION

A. Claims raised by both defendants^[4]

1. There is sufficient evidence to support the jury's verdict that the murder

of Albert was premeditated and deliberate

Sanchez and Betancourt claim there is insufficient evidence to support the jury's verdict that the murder was premeditated and deliberate.

a. Standard of review

In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ─ that is, evidence which is reasonable, credible, and of solid value ─ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Evidence of premeditation need not be overwhelming and "'we need not be convinced beyond a reasonable doubt that defendant premeditated the murder[ ]. The relevant inquiry on appeal is whether "'any rational trier of fact'" could have been so persuaded.' [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 546.)

b. Governing law

Section 189 provides in relevant part, "All murder which is perpetrated by means of . . . willful, deliberate, and premeditated killing . . . is murder of the first degree."

"In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767 (Mayfield).) However, "[t]he process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .' [Citations.]" (Ibid.)

In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the California Supreme Court "'identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, . . . "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]"' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249.)

c. There is sufficient evidence of premeditation and deliberation

The following evidence, described in part II, ante, concerning the circumstances of the murder is relevant to our consideration of the sufficiency of the evidence of premeditation and deliberation. Having armed himself with a gun, Sanchez traveled outside his gang's territory with a fellow gang member, Betancourt, in order to collect a debt that Villarino owed to Betancourt. Sanchez and Betancourt, along with Durocher, went to an apartment where Betancourt had previously found Villarino, and at which Moreno and April were living. While at the apartment, Sanchez and Betancourt demanded that Moreno tell them where Villarino was. When Moreno stated that he did not know, Sanchez and Betancourt began to assault Moreno. While Sanchez and Betancourt were hitting Moreno, the pair stated the name of their gang, North Side Colton. After learning that Villarino might be at a house next door to Albert's, Sanchez and Betancourt traveled to this location, where they assaulted Albert's son Joseph. When Albert attempted to intervene in the fight, Sanchez fired two shots at Albert, one of which struck and killed him.

Later that evening, after Sanchez shot Albert, Sanchez told Durocher and Betancourt, "That fool's going to die . . . I served that fool." In addition, Betancourt told Durocher that she should have known that there was a gun.

The jury could have reasonably inferred from the evidence presented that Joseph was in a gang other than North Side Colton and that both Joseph and Durocher, who were present at the scene of the killing, knew that Sanchez and Betancourt were members of the North Side Colton gang.

Applying Anderson to this evidence, Sanchez's act of arming himself in anticipation of a violent confrontation while assisting in the collection of a debt owed to a fellow gang member constitutes strong evidence of planning. (See People v. Manriquez (2005) 37 Cal.4th at 547, 578 (Manriquez).) With respect to motive, the jury could have reasonably inferred from the circumstances of the killing and from Officer Vogelsang's testimony, that Sanchez's motive was to demonstrate his willingness to use violence to further the gang's interests. (See People v. Martinez (2003) 113 Cal.App.4th 400, 412-413 [finding sufficient evidence of premeditation and deliberation where the motive for the shooting involved gang rivalry].) Finally, the manner of killing ─ the firing of two shots at the victim at close range^[5]with a handgun ─ is indicative of a deliberate intent to kill. (See People v. Poindexter (2006) 144 Cal.App.4th 572, 588 ["The manner of killing, while not an execution-style single shot to the head, could still support a finding of premeditation and deliberation, as defendant quickly fired three shots at the victim, with a shotgun, from a relatively close range"].) Sanchez's statement after the shooting, "That fool is going to die . . . I served that fool," also supports the conclusion that the shooting was the result of a calculated judgment rather than a rash impulse. (See Mayfield, supra, 14 Cal.4th at p. 768 ["postoffense statements [can] provide substantial insight into the defendant's thought processes in the crucial moments before the act of killing].)

We conclude that there is sufficient evidence to support a verdict of premeditated and deliberate first degree murder.

2. There is sufficient evidence to support the gang-related enhancement

findings under section 186.22 subdivision (b) and section 12022.53

subdivision (e)

Both Sanchez and Betancourt claim that there is insufficient evidence to support the jury's gang enhancement finding under section 186.22, subdivision (b). Betancourt also claims that there is insufficient evidence to support the section 12022.53, subdivision (e) gang-related firearm enhancement.

a. Standard of review

The law regarding appellate review of claims challenging the sufficiency of the evidence in the context of gang enhancement findings is the same as that governing review of sufficiency claims generally. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) Accordingly, we apply the standard of review discussed in part III.A.1.a., ante.

b. Governing law

Section 186.22, subdivision (b)(1) provides in relevant part:

"[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . ."

Aiders and abettors who commit crimes while violating section 186.22, subdivision (b) are subject to a sentence enhancement for vicarious liability for use of a gun, pursuant to section 12022.53, subdivision (e).

In People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales), the defendant and two fellow gang members committed a robbery. On appeal, the defendant claimed that there was insufficient evidence to support a gang sentence enhancement pursuant to section 186.22, subdivision (b)(1), arguing that the evidence showed only that the three men belonged to the same gang. The Morales court rejected this claim, concluding that evidence that a gang member has committed a crime with another person whom he knows to be a fellow gang member will ordinarily be sufficient to meet the disjunctively worded elements of section 186.22, subdivision (b)(1). The court explained, "Defendant argues that reliance on evidence that one gang member committed a crime in association with other gang members is 'circular . . . .' Not so. Arguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang." (Morales, supra, 112 Cal.App.4th at p. 1198.)

In People v. Romero (2006) 140 Cal.App.4th 15, 19-20 (Romero), the court employed similar reasoning in holding that there was sufficient evidence to support a gang enhancement pursuant to section 186.22, subdivision (b)(1) where the defendant drove his fellow gang members to the site where they committed a drive-by shooting. The court reasoned: "There was ample evidence that appellant intended to commit a crime, that he intended to help Moreno commit a crime, and that he knew Moreno was a member of his gang. This evidence creates a reasonable inference that appellant possessed the specific intent to further Moreno's criminal conduct." (Romero, supra, 140 Cal.App.4th at pp. 19-20.)

c. The People presented sufficient evidence to support the jury's

gang enhancement findings

As an initial matter, we reject Sanchez's argument that there was "no evidence Sanchez was an active gang member." The People presented evidence that in 1992, Sanchez admitted that he was a gang member. In August 2002, just months before the murder in this case, Sanchez listed several incarcerated gang members as his associates while registering with police pursuant to a court order. The jury could also have considered evidence that on the night of the murder, Sanchez acted in concert with Betancourt, who admitted his gang affiliation as recently as March 2002. Further, the jury could have considered evidence that Betancourt and Sanchez each said the name of their gang as they assaulted Moreno on the night of the murder.^[6] In addition, when Sanchez was arrested just days after the murder, he was in the company of another North Side Colton gang member. There was thus ample evidence from which the jury could conclude that Sanchez was an active gang member at the time of the murder.

The People presented evidence that Sanchez murdered Albert while committing a battery with Betancourt, a fellow gang member. Assuming that it is theoretically possible for a gang member to commit an offense with another gang member and yet not be acting "in association with any criminal street gang," within the meaning of the section 186.22, subdivision (b)(1) (see Morales, supra, 112 Cal.App.4th at p. 1198), in this case, there was sufficient evidence that on the night Albert was killed, Sanchez and Betancourt were acting in association with a criminal street gang. The murder occurred only minutes after Sanchez and Betancourt committed a battery on Moreno, during which they stated the name of their gang, and while the men were jointly committing another battery on Joseph.

The jury could also have reasonably inferred from the expert testimony and the circumstances of the killing that, in murdering Albert, Sanchez specifically intended to use violence to further the gang's interests. (Compare with In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [finding insufficient evidence to support section 186.22, subdivision (b)(1) gang enhancement where "[t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use [a] knife in a gang-related offense"].)^[7]

In light of Betancourt's liability for Albert's murder under the natural and probable consequences doctrine (see part III.C.3., post), it appears that the elements of section 186.22, subdivision (b) were established as to Betancourt as long as Sanchez had the requisite intent in murdering Albert. In other words, under the circumstances of this case, it does not appear that section 186.22, subdivision (b)(1) required that Betancourt have acted with a gang-related intent. (["[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony. . . ."]) However, assuming that

Betancourt is required to have harbored such intent, there was sufficient evidence that Betancourt had the specific intent to assist in criminal conduct by a gang member, in view of the circumstances of the killing and his participation in the battery on Joseph. Accordingly, there was sufficient evidence from which the jury could have determined that both defendants harbored the "specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." ( 186.22, subd. (b)(1).)

We reject Sanchez's argument that there is insufficient evidence to support the gang enhancement because, in shooting Albert, Sanchez was "trying to prevent the attack on him by Albert." The jury clearly rejected this argument when it convicted Sanchez of first degree murder. There was sufficient evidence from which the jury could have made this determination. This court will not second guess the jury's factual determinations on appeal. (People v. Baker (2005) 126 Cal.App.4th 463, 469 [stating that in considering sufficiency claim, "[w]e do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact"].)

Finally, we reject defendants' argument that there is insufficient evidence to support the gang-related sentence enhancements because section 186.22, subdivision (b)(1) purportedly requires proof of a specific intent to facilitate a crime other than the charged offense. (See Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1104.) We agree with the courts in People v. Hill (2006) 142 Cal.App.4th 770, 774 and Romero, supra, 140 Cal.App.4th at page 19, both of which rejected this interpretation of section 186.22, subdivision (b)(1) as an unreasonable interpretation of the statute. (See Romero, supra, 140 Cal.App.4th at p. 19 ["By its plain language, the statute requires a showing of specific intent to promote, further, or assist in 'any criminal conduct by gang members,' rather than other criminal conduct"].)

Accordingly, we conclude that there was sufficient evidence to support the gang-related sentence enhancements.

3. The trial court committed harmless error by admitting evidence of

Sanchez's and Betancourt's prior juvenile adjudications

Sanchez and Betancourt claim that the trial court erred in allowing the People to admit evidence of their juvenile adjudications as predicate offenses in proving the existence of a criminal street gang, for purposes of the section 186.22, subdivision (b)(1) enhancements. The defendants claim that because the prosecutor was permitted to introduce ample evidence of other crimes committed by North Side Colton gang members to establish the predicate offenses, the probative value of the defendants' juvenile adjudications was minimal. The defendants argue pursuant to Evidence Code section 352, that the court should not have admitted evidence of their prior juvenile adjudications because the minimal probative value of the evidence was substantially outweighed by the probability of prejudice inherent in the introduction of uncharged offense evidence. Sanchez argues that his conviction for first degree murder must be reversed as a result of the error. Betancourt seeks reversal of all of his convictions and true findings.

We apply the abuse of discretion standard of review to this claim. (See People v. Kipp (2001) 26 Cal.4th 1100, 1121 [applying abuse of discretion standard of review to defendant's claim that the trial court erred in failing to exclude evidence pursuant to Evidence Code section 352].) We conclude that the trial court erred in admitting in evidence of the defendants' prior juvenile adjudications, but that the error was harmless.

a. Factual and procedural background

During a pretrial hearing, Sanchez's counsel stated that the prosecutor had provided the defense with a list of eight prior convictions that the prosecutor intended to use as predicate offenses to prove that North Side Colton was a criminal street gang, pursuant to section 186.22, subdivision (b)(1). Sanchez's counsel requested that the court exclude evidence of Sanchez's prior juvenile adjudication pursuant to Evidence Code section 352 on the ground that, in light of the numerous other predicate offenses available to the prosecutor, the probative value of the Sanchez's priors was minimal while the potential for prejudice from its admission was great. Betancourt's counsel joined in the motion, noting that the prosecutor had indicated that he intended to offer in evidence Betancourt's 1996 juvenile adjudication for second degree burglary.

The prosecutor argued that the defendants' prior juvenile adjudications revealed that the defendants were "involved in criminality as well as being members of a gang." The court indicated that it would take the matter under submission. Prior to the commencement of the trial, the court ruled that it would allow the prosecution to present evidence of the defendants' juvenile priors.

At trial, the People presented evidence pertaining to the prior convictions of six other North Side Colton gang members for various crimes. The People also presented evidence that in 1995 Sanchez suffered a juvenile adjudication for first-degree burglary ( 459) and assault with a deadly weapon ( 245, subd. (a)(1)) stemming from offenses committed on October 8, 1994. In addition, the People offered evidence that Betancourt suffered a 1999 juvenile adjudication for second-degree burglary ( 459) stemming from offenses committed on August 11, 1996. Both Sanchez and Betancourt renewed their objections to this evidence. The court overruled the objections.

During jury instructions, the court instructed the jury regarding the limited purpose for which it could consider evidence of the defendants' prior juvenile adjudications, pursuant to a modified version of CALJIC No. 17.24.3, as follows:

"Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which defendants are on trial.

"This evidence, if believed, may not be considered by you to prove a defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.

"For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose."

b. Governing law

i. The purpose for which the uncharged offense evidence

was offered

In order to subject the defendants to gang-related sentence enhancements, the People were required to prove that the defendants committed the crimes "for the benefit of, at the direction of, or in association with any criminal street gang . . . ." ( 186.22, subd. (b)(1), italics added.) A "criminal street gang" is statutorily defined as an organization whose "members . . . have engaged in a pattern of criminal gang activity."^[8]

ii. The law governing the admissibility of uncharged

offense evidence

Evidence Code section 1101 provides:

"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."

Evidence code section 352 provides:

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

It is well established that uncharged offense evidence that is admissible pursuant to Evidence Code section 1101, "'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), superseded by statute on other grounds, as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505.) 

The Supreme Court has repeatedly stressed that "evidence of uncharged misconduct '"is so prejudicial that its admission requires extremely careful analysis."'" (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting Ewoldt, supra, 7 Cal.4th at p. 404; e.g., People v. Medina (1995) 11 Cal.4th 694, 748.) Since "'substantial prejudicial effect [is] inherent in [such] evidence,' uncharged offenses are admissible only if they have substantial probative value. If there is any doubt, the evidence should be excluded. [Citation.]" (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. omitted, overruled on another ground by People v. Rowland (1992) 4 Cal.4th 238, 260; see also People v. Haston (1968) 69 Cal.2d 233, 244 [other crimes evidence "should be received with 'extreme caution,' and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused"].)

In Ewoldt, the Supreme Court emphasized that where uncharged offense evidence is cumulative, it will often be inadmissible pursuant to Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at pp. 405-406 ["In many cases the prejudicial effect of such evidence [offered to show a common design or plan] would outweigh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably subject to dispute"].)

c. The trial court erred in admitting evidence of the defendants'

prior juvenile adjudications

The People note that the evidence of the defendants' priors was relevant to establish the predicate offenses necessary to establish the section 186.22, subdivision (b) enhancement. However, the prosecutor presented ample evidence, apart from the defendants' juvenile adjudications, to establish that North Side Colton was a criminal gang. The People offer no response to the defendants' argument that the evidence was inadmissible pursuant to Evidence Code section 352. Specifically, the People do not contend that the evidence of numerous convictions of other North Side Colton gang members was in any way insufficient to establish the necessary predicate offenses.

The evidence of the defendants' prior juvenile adjudications was "merely cumulative regarding an issue that was not reasonably subject to dispute." (Ewoldt, supra, 7 Cal.4th at p. 406.) As with all uncharged offenses, the possibility for prejudice in allowing the jury to hear of the defendants' commission of prior offenses was significant. For these reasons, we conclude that the trial court abused its discretion in admitting evidence of the juvenile adjudications.

d. The error was harmless as to both defendants

Sanchez and Betancourt claim that the admission of the uncharged offense evidence violated their federal constitutional right to due process, and that the standard of prejudice adopted in Chapman v. California (1967) 386 U.S. 18, 24, thus applies. In Albarran, supra, 149 Cal.App.4th at pages 229-230, the court explained the standard that a reviewing court must apply in determining whether the erroneous admission of evidence implicated a defendant's right to due process:

"To prove a deprivation of federal due process rights, Albarran must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citations.]' [Citation.]"

In this case, one cannot clearly infer that the jury used the evidence of the defendants' prior juvenile adjudications for an improper purpose, because the uncharged offense evidence was relevant ─ albeit cumulative ─ to the issue of the predicate gang offenses. Further, the prosecutor mentioned the evidence only briefly, and it did not constitute a significant part of the prosecution's case in chief against either defendant. The admission of the evidence thus clearly did not render the trial so arbitrary and fundamentally unfair as to violate the defendants' right to due process.

Ordinarily, the improper admission of uncharged offense evidence is reviewed under the standard of prejudice established in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.) Having concluded that admission of the uncharged offense evidence did not violate the defendants' federal constitutional right to due process, we must determine whether it is "reasonably probable that a result more favorable to [the defendants] would have been reached in the absence of the error. . . ." (Watson, supra, 46 Cal.2dat p. 837; see Albarran, supra, 149 Cal.App.4th at p. 232, fn. 18.)

As noted above, the evidence of defendants' prior juvenile adjudications played a very minor role in the trial. The evidence was offered as part of the People's gang expert's testimony concerning predicate offenses committed by members of North Colton.^[9] The context in which the evidence was offered suggested to the jury that the evidence was relevant only to establish the predicate offenses necessary for the gang enhancements. In addition, the trial court instructed the jury pursuant to CALJIC No. 17.24.3, that it was not permitted to consider the evidence as propensity evidence, and that it was to consider the evidence only for the limited purpose of determining whether the People had established the elements of the gang enhancement allegations.

In light of the overwhelming evidence of the defendants' membership in a "very violent gang," evidence that each of the defendants had prior juvenile adjudications is unlikely to have been unduly prejudicial. This is particularly true in light of the fact that the testimony regarding the prior convictions was brief, spanning less than a page of the reporter's transcript, the prosecutor did not rely on the prior offenses in attempting to prove the defendants' commission of the charged offenses, and the prior adjudications were not particularly inflammatory, in view of the nature of the charged offenses.

The People also presented strong evidence of the defendants' guilt, including essentially undisputed evidence that both defendants committed a battery on Moreno just minutes before the killing.^[10] Under these circumstances, the fact that the jury learned that Sanchez and Betancourt had committed offenses while they were juveniles in the 1990s is highly unlikely to have been unduly prejudicial.

In sum, while the admission of the uncharged offense evidence carried with it the possibility of great prejudice, in light of the minor role the uncharged evidence played at trial, the limiting instruction the court gave to the jury, and the strong evidence that the defendants committed the charged offenses, it is not reasonably probable that the jury would have reached a more favorable result but for the error. Accordingly, we conclude that the error was harmless.

B. Sanchez's claims

1. The trial court did not commit reversible error in failing to instruct

the jury sua sponte on the lesser included offense of involuntary

manslaughter

Sanchez claims that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter.

"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, '"that is, evidence that a reasonable jury could find persuasive"' [citation], which, if accepted, '"would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser.' [Citation]." (People v. Cole (2004) 33 Cal.4th 1158, 1218.)

Sanchez claims that the trial court was required to instruct the jury on involuntary manslaughter because there was evidence that he acted in imperfect self-defense without having harbored the intent to kill or having acted with a conscious disregard for life. (Compare with People v. Blakeley (2000) 23 Cal.4th 82, 91 ["a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter"].) Sanchez does not point to substantial evidence upon which the jury in this case could have concluded that he was guilty of involuntary manslaughter, and we find no such evidence. (See Manriquez, supra, 37 Cal.4th at p. 588 [rejecting claim that trial court failed to instruct sua sponte on involuntary manslaughter where defendant testified that shooting was accidental, because evidence of multiple gunshot wounds inflicted at close range demonstrated that shooting was intentional].)

Even assuming for the sake of argument that the trial court erred in failing to instruct the jury on involuntary manslaughter, any such error "'is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citation.]'" (People v. Chatman (2006) 38 Cal.4th 344, 392.) The California Supreme Court has repeatedly held that in cases in which a jury convicts a defendant of first degree murder rather than the lesser included offense of voluntary manslaughter, a defendant suffers no prejudice from the trial court's failure to instruct on involuntary manslaughter. (E.g., People v. Rogers (2006) 39 Cal.4th 826, 884; Manriquez, supra, 37 Cal.4th at p. 588, People v. Cook (2006) 39 Cal.4th 566, 597.)

In this case, the jury convicted Sanchez of first degree murder rather than the lesser included offenses of second degree murder and voluntary manslaughter. Therefore, Sanchez could not have been prejudiced by the lack of a jury instruction regarding involuntary manslaughter.^[11]

Accordingly, we conclude that the trial court did not commit reversible error in failing to instruct the jury regarding involuntary manslaughter.^[12]

2. The trial court did not err in refusing to bifurcate trial of the gang

enhancement allegations from trial of the substantive offenses

Sanchez claims that the trial court erred in refusing to bifurcate trial of the gang enhancement allegations, pursuant to section 186.22, subdivision (b) and section 12022.53, subdivision (e), from trial of the substantive offenses. Sanchez also claims that even if the trial court properly denied his pretrial request for bifurcation, reversal of his murder conviction is required because the court's failure to bifurcate ultimately resulted in "gross unfairness" amounting to a violation of due process.

a. Standard of review

"The determination of whether the risk of undue prejudice to the defendant requires bifurcation is within the sound discretion of the trial court. [Citation.] On appeal, we review the trial court's ruling for an abuse of discretion, based on a review of the record that was before the trial court at the time of the ruling. [Citation.] However, even if the trial court's ruling was correct at the time it was made, reversal is required if the defendant shows the failure to bifurcate resulted in '"gross unfairness" amounting to a denial of due process.' (People v. Mendoza (2000) 24 Cal.4th 130, 162 [Mendoza], quoting People v. Arias (1996) 13 Cal.4th 92, 127 [Arias].)"^[13] (People v. Burch (2007) 148 Cal.App.4th 862, 867 (Burch).)

b. Factual and procedural background

Before trial, the People filed a brief entitled, "People's Trial Brief Regarding Gang Evidence," in which they argued that the court should not bifurcate trial of the section 186.22, subdivision (b) gang allegation from trial on the substantive offenses. The People argued that bifurcation was unwarranted because evidence of each defendant's gang membership was relevant and admissible with respect to the substantive offenses on the issues of intent, knowledge, motive, aiding and abetting, and witness bias. The People argued:

"[T]he murder was committed in the course of a mutual venture by two North Side Colton gang members, outside their home territory, to commit violence in the process of collecting a debt. The gang evidence is what establishes the ties between the defendants and the motive for them knowingly to act together. It also establishes the defendants' knowledge of the presence of the gun and the criminal purpose of the actual killer. Defendant Betancourt is expected to deny knowing that Sanchez was going to do anything more than beat Joseph Flores. Accordingly, the gang evidence is especially probative on the issue of natural and reasonably forseeable consequences. Further, several of the witnesses are extremely reluctant to testify based on the defendants' ties to North Side Colton. . . . The People must be permitted to explore the nature of the witnesses' reluctance . . . ."

Sanchez filed a pretrial motion to bifurcate trial of the section 186.22, subdivision (b) gang enhancement. In his motion, Sanchez argued that the motive for the charged crimes was not gang-related, the alleged victims were not gang members, the defendants did not identify themselves as gang members at the time of the incident that resulted in the killing, and the percipient witnesses did not have information that was relevant to the gang enhancement.

At a pretrial hearing, Sanchez's counsel reiterated his request for bifurcation and clarified that he was requesting bifurcation of the gang-related firearm enhancement allegations ( 12022.53, subds. (d),(e)) as well as the section 186.22, subdivision (b) allegation. After hearing further argument from both the prosecutor^[14]and counsel for the defendants, the court denied the motion to bifurcate.

At trial, the People offered various types of gang-related evidence, including evidence that established North Side Colton's status as a criminal street gang, evidence of defendants' membership in North Side Colton, expert testimony regarding gang behavior, and evidence offered to demonstrate the defendants' gang-related motivation and intent in committing the charged offenses. (See part II.E., ante.)

The court instructed the jury regarding the limited purpose for which it could consider the gang evidence, pursuant to CALJIC No. 17.24.3, as discussed in part III.A.3.a.,ante.

c. Governing law

In People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez), the Supreme Court considered the claim of two codefendants that a trial court had erred in failing to bifurcate trial of a gang enhancement allegation. The Hernandez court noted that bifurcation is clearly not required to the extent evidence of a defendant's gang membership is admissible on the charged offenses without regard to any gang enhancement allegation:

"[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation ─ including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like ─ can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (Id. at pp. 1049-1050.)

The Hernandez court further made clear that, "Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself . . . a court may still deny bifurcation." (Hernandez, supra, 33 Cal.4th at p. 1050.) Noting the benefits of unitary trials, the Hernandez court explained that a "trial court's discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged." (Ibid.) Bifurcation is required only where a defendant can "'clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' [Citation.]" (Id. at p. 1051.)

In applying this law, the Hernandez court noted that much of the gang evidence presented in that case was relevant to the charged offense, on the issues of motive and intent. (Hernandez, supra, 33 Cal.4th at p. 1050.) The Hernandez court acknowledged that evidence of prior criminal acts by the defendants' fellow gang members and "some of the expert testimony" would not have been admissible at a trial limited to the charged offense (id. at p. 1051), but held that the trial court had acted within its discretion in denying bifurcation. (Ibid.)

d. The trial court did not abuse its discretion in refusing to

bifurcate the trial of the gang enhancements

Sanchez claims that the trial court abused its discretion in denying the motion to bifurcate because "[a]t the time the ruling was made . . . there was no evidence that the shooting of Albert was a gang-related crime." We disagree. The People's trial brief, as well as the prosecutor's comments at the hearing on the motion to bifurcate, demonstrate that the trial court did not abuse its discretion in refusing to bifurcate. As in Hernandez, the People's offer of proof demonstrated that gang-related evidence would be highly relevant on the issues of motive and intent with respect to the underlying offenses. (Hernandez, supra, 33 Cal.4th at p. 1050.)

Further, the trial court's refusal to bifurcate tri