P. v. Solis

Filed 1/25/10 P. v. Solis CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, George Gonzalez Lomeli, Judge. Affirmed.

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

Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant Isaac Martinez.

Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendants and appellants Juan Solis and Isaac Martinez guilty of two counts of first degree special circumstance premeditated and deliberate murder and two counts of minor in possession of firearms.[1] On the murder counts, they were sentenced to two terms of life without the possibility of parole plus two 25-years-to-life terms for gun use. They raise numerous claims on appeal about: (1) the sufficiency of the evidence to support the premeditated and deliberate findings and the gang enhancement and special circumstance allegations; (2) the admission of evidence that Solis had a gun that was not the murder weapon; (3) the admission of bad character evidence; (4) the admission of Martinezs statement that allegedly implicates Solis; (5) the aiding and abetting instructions; (6) the flight, gang special circumstance and motive instructions; and (7) various sentencing errors.[2] We either find no error or harmless error; therefore we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The party on the night of January 28, 2006.

Erica Beas was celebrating her 18th birthday with a party on January 28, 2006. The party was at a house located at the top of a hill. Defendant Martinez was at her party with defendant Solis; Beas went to school with both of them and Solis lived near her. A little after 11:00 p.m., a fight between two guys and Justin broke out, at which time the music was turned off and people started to leave, although some people remained. Around 1:00 p.m. Beas heard gunshots. By the end of the night, Jacob Santiago and Jessie Mendoza were dead.

About one week after the party, Beas identified Martinez from a photographic line-up as a person at her party. She also identified Solis from a photographic line-up as a person who was at her party, but [he] left early with Martinez.

B. Charlyne Vivanco

Charlyne Vivanco arrived at the party around 11:30 p.m. or midnight, but she stayed outside on the street, drinking. Doug[3] and Jose Fuentes got into a fight and then it erupted so that  all of us  or  all of them,  including Mendoza, were involved. A tall Black man fired gunshots into the air, but nobody stopped fighting. At some point Santiago was knocked unconscious, and she and Genesis Aguirre put him into Eagan Jacksons car. Someone pushed her aside and shot Santiago.[4] At a live-line up in June 2006 she identified Solis as having the same hair and skin color as the shooter, and she wrote  may be number 4.  At trial, she identified Solis as the person in position No. 4.[5]

C. Jose Fuentes

Jose Fuentes arrived at the party around 11:00 p.m. with, among others, the victims, Mendoza and Santiago. Although Fuentes did not stay long, while at the party he had a drink and he saw one person wearing a No. 15 Carmelo Anthony Denver Nuggets jersey.[6] After leaving the party, he went to the bottom of the hill. People were arguing. He heard gunshots and saw people running down the hill from the top. One individual held what looked like a black cop gun while another person wearing a jersey appeared to be concealing something in his sweater. One of the men wore a black zip-up hooded sweater and a black hat with a  C  on, and a second person wore a No. 15 jersey with a sweater over it. Everyone scattered, and Fuentes heard more gunshots; in total, Fuentes heard at least three groupings of shots. Fuentes got into a friends car, but he turned and saw the man wearing the black hooded sweater and black hat shoot at Mendoza, who stood near Eagan Jacksons car, a gold Toyota Camry, about six feet from the shooter.

On December 27, 2006, Fuentes reviewed a photographic line-up. He identified No. 6, defendant Martinez, as  stand[ing] out as the pretty-boy looking individual who subconsciously strikes fear into me. 6 looks like a face that was at the party.  The face reminded him of the No. 15 jersey, but at neither the preliminary hearing nor trial could he identify Martinez as someone who was at the party.

D. Aaron Ronquillo

Aaron Ronquillo went to the party at around 11:00 p.m., but he too was at the bottom of the hill. Jose and another person got into a fight, and Santiago tried to break it up, but he got hit and fell to the ground. Mendoza asked,  Who hit Jacob? Who hit my friend?  He ran around and took off his shirt. A tall Black man shot a gun in the air; this man was the first person to fire a gun.

After helping Santiago, Ronquillo heard gunshots from up the hill. Two Hispanic men between the ages of 17 and 19 with guns were on the hill; one wore a baby blue and yellow No. 15 Carmelo Anthony jersey[7] and the other, who was heavyset, wore a dark, hooded sweater. After hearing the shots, Ronquillo heard shouts telling themthey were saying Get out of here  and  Cypress  and  Get out of our hood.  Ronquillo was not certain if the men with the guns said this, but the statements appeared to be coming from their direction. Everyone began to go to their car. Anthony Cardines was near a friends car when the man wearing the jersey pointed the gun at Cardiness head. Ronquillo continued to walk to his car, but he heard more gunshots. Looking back, he saw them shooting into Eagan Jacksons car.

In a photographic line-up on February 3, 2006, Ronquillo identified  4 and 6  as looking  similar to the shooters,  but he meant to identify only No. 6, Martinez, as the man wearing the jersey. At a live line-up on June 13, 2006, he picked two individuals (Nos. 2 & 3) who resembled the shooters, one of whom was Martinez. At a second live line-up on June 13, he identified No. 4, defendant Solis, as the man wearing a dark, hooded sweater shooting into Eagans car.

At the preliminary hearing, Ronquillo identified Solis as one of the shooters.

At the time he testified at trial, Ronquillo had a charge pending for attempted grand theft, so he testified under a grant of immunity.

E. Doug Mejia

Doug Mejia was at the party that night, and when the argument erupted between his friend, Justin, and another guy, he tried to stop it by taking Justin outside. They walked toward the bottom of the hill, where cars were parked. Jose and another guy started arguing, and somebody hit Santiago, who passed out. Mejia laid him on the ground. After Santiago was hit, Mendoza became really, really mad and he took his shirt off. Ds friend shot his gun once into the air to try and calm people down.

Three young guys[8] wearing hooded sweaters and carrying guns came down the hill and shot into the air. One man wore a No. 15 Carmelo Anthony jersey; he was light-skinned, bald and somewhat short. Mejia would not recognize the man if he saw him again. The other two men with guns were taller and one wore a dark gray hooded sweater and the other a black one. The men did not say anything before shooting, but after they said  We dont want no drama or snappers.  That night, Mejia heard different sets of gunshots: the first gunshots were into the air, then he heard about 10 more gunshots.

A self-described sports fanatic, Mejia collects jerseys, and the jersey he saw the night of the party was a throwback jerseya jersey that is old but is replicated so that current players can wear it.

Detective James King interviewed Mejia on February 1, 2006. Mejia identified a shooter as a male Hispanic, 5 feet 3 to 4 inches tall, bald, 18 years old, 140 to 160 pounds wearing a light blue Denver Nuggets jersey. Mejia described a second shooter as a male Hispanic, 5 feet 6 to 7 inches tall, average build wearing a gray zippered hooded sweater and a black shirt. This second shooter may have had a hat, but Mejia believed he had short hair.

F. Genesis Aguirre

When the party was over, Genesis Aguirre walked down the hill to Eagan Jacksons car. A fight broke out and Santiago was hit. She then heard a lot, 10 or more, gunshots. One or two people were pulling Santiago out of the car. She didnt see anyone get shot or see anyone with a gun.

G. Yvette Amaya

After the party broke up, Amaya went to Eagan Jacksons car and a fight broke out. Santiago tried to break up the fight, which included a guy wearing a green hat with a  C  on it. When Santiago passed out, she and her friends put him into Jacksons car. Mendoza tried to get in the car, but gunshots were being fired. Somehow, Santiago was no longer in the car. Amaya was unable to make any identifications, but she remembered that the people whom she thought might be the shooters wore black and one of them wore a green hat with a  C  on it. She never saw anyone with guns.

H. EaganJackson

Eagan Jackson drove himself and some friends to the party, and he parked his car at the bottom of the hill. After leaving the party, he went to his car with Aguirre and Amaya. He saw a big scuffle and Jesse [Mendoza] getting rowdy because Santiago had been hit. He did not see Santiago in his car. Two guys came down the hill with guns and they fired shots into the air. One man wore a black hoodie and the other wore a baby blue with yellow trim No. 15 Carmelo Anthony jersey. One of the men shouted,  Get the fuck out of here right now. 

Jackson ran to his car. Aguirre, Amaya and David were in the car and Cardines was trying to get in, but the guy in the Carmelo Anthony jersey put the gun to his face and I believe asked him Where are you from.  Cardines said he was from  nowhere,  and the guy in the jersey went towards the back passenger side of the car. To his knowledge, none of his companions, including Santiago and Mendoza, were gang members. Four or five guys were jumping Mendoza; and the guy wearing the jersey and the one wearing the dark hoodie started shooting. When they started shooting, Amaya tried to pull Santiago into the car. Jackson heard a series of shots, although he thought there were two series of gunfire.

At a live line-up, Jackson identified three people (Nos. 3, 4 & 6), and he wrote that  the subject in my case may be number[s] . . . 3 and 4, and No. 4 was defendant Solis. He also wrote that  the subject in my case is number 6.  But at trial he said he made a mistake; he meant to write he wasnt sure if No. 6 was the actual person.[9] He was shown two or three photographic six-packs, but he couldnt make any identifications from them.

I. Anthony Cardines

After the party ended, Anthony Cardines went to Jacksons car. Although he didnt see an argument or see Santiago get hit, he did see him on the ground. Individuals approached him from behind, and he could remember a white and blue Nuggets jersey with the No. 15 on it and a Cubs hat. The man wearing the jersey approached him and pointed a gun at his face and asked where he was from. Cardines replied he was from nowhere. He got into the car and then he heard gunshots. They tried to pull Mendoza into the car, but he was getting shot.

At trial he could not remember hearing them shout anything, but he told detectives he heard someone shout something Park. He couldnt identify the person who pointed the gun at him.

Like Ronquillo, Cardines was testifying under a grant of immunity; he had been charged with Ronquillo for attempted grand theft.

J. Evidence.

Jacob Santiago was shot five times, all in the back, and all five resulting wounds were fatal. Jessie Mendoza[10] had 16 gunshot wounds. Some of the wounds to his back suggest his body was in motion while being shot. No soot or stippling was found on either body, meaning that they were shot from a distance of at least one and one-half to three feet away.

Forty caliber live rounds, .40 caliber semiautomatic casings and a .380 caliber casing were recovered from the crime scene. Forty and .44 caliber bullets or fragments were recovered from both Santiagos and Mendozas bodies.

On February 2, 2006, Officer Juan Chavez searched defendant Martinezs home. From his residence, officers recovered a .25 caliber raven semiautomatic pistol, a sawed-off shotgun in pieces and two baggies containing methamphetamine.

From defendant Soliss home, officers recovered a loaded .40 caliber semiautomatic pistol with ammunition and a sawed-off shotgun. Forty caliber ammunition rounds were Smith & Wesson, Winchester brand. Cypress Park graffiti was in his basement. The .40 caliber bullets retrieved from the victims bodies were fired from the same gun, a Smith & Wesson; but they were not fired from a .40 caliber gun found in Soliss home.

Photographs taken at the party depict a person wearing a Carmelo Anthony jersey. Officer Eric Hurd identified him as defendant Martinez, whom hed stopped numerous times. A search of Martinezs home turned up a No. 15 Carmelo Anthony blue with yellow trim jersey, as well as blue and white Nike tennis shoes similar to ones worn by the person wearing the jersey at the party.[11]

K. Gang evidence.

Officer Eric Hurd testified as a gang expert for the People. Cypress Park gang was formed in the 1950s. Its boundaries are Figueroa to the South, Division Street to the North, Isabel Street to the East and San Fernando Road to the West. Gang members commonly use their hands to make a C and P, and the Western Exterminator man is their mascot. Gang members wear sports attire with the first letter of their gang, so Cypress Park wears Cubs attire. The Avenues gang is their main rival, and the party took place in Avenues territory. Cypress Parks primary activities are assault with a deadly weapon, attempted murder and murder, robbery and sale of controlled substances.

Martinez self admitted to Officer Hurd and explained he goes by Mousito and Lil Clown, which is payaso in Spanish. During encounters with other officers in August 2005 and January 2006 and before February 2, 2006, Martinez admitted he was a member of the Cypress Park gang. He also told one of these officers that his moniker was Payaso. According to Officer Hurd, Martinez is an up-and-coming gang member. Martinez has Cypress Park, CP Boys and Western Exterminator man tattoos. Letters and photographs, including a photograph of him throwing a P sign, containing gang references were in Martinezs home.

Solis admitted in August and September 2005 to officers that he was a Cypress Park gang member and that his moniker is Kwan. Solis has a C on his forearm, which he said stood for Cypress; he was in the process of getting a P. He also admitted his gang membership to Officer Hurd.

Both Martinez and Solis reside in an area claimed by Cypress Park gang.

In Officer Hurds opinion Martinez and Solis are members of Cypress Park gang and the crimes at issue benefit Cypress Park because it shows that the gang is not intimidated by anyone and the crimes intimidate and create fear.

L. Defendants statements

Recorded statements made by the defendants to detectives were admitted. Before playing the tapes of the statements for the jury, the trial court instructed that evidence of the statements made by a particular defendant could be considered against that particular defendant making the statement, but not for purposes of the other defendant.

1. Defendant Martinezs statements.

When asked about the party, Martinez said his cousin Jasmine dropped him off, but he was there for only about 10 minutes. He was not at the party with anyone else; he only met up with Erica Beas. He left because three Black men wanted to beat him up after he found a gun and some beer belonging to them. At school people told him that hed killed some people. When the detective told Martinez his fingerprints were found on the car, Martinez said, Damn. He explained he was talking to them. According to Detective Rivera, Martinez admitted wearing the No. 15 jersey.

2. Defendant Soliss statements.

Defendant Solis also gave a recorded statement to detectives. He got the guns found at his home from a guy in Highland Park, and he paid three bills$300for them. He bought a .40 caliber gun from the guy; he just got it before his home was searched. Sometimes at night he doesnt feel safe, so he got the gun and, although he carried it, he never used it. A year before he was walked into Cypress Park and is known as Kwan. Solis denied being at the party. But he admitted hed avoided a police perimeter at his house set up to locate him.

II. Procedural background.

Trial was by jury. On September 6, 2007, the jury found Martinez guilty as follows:[12]

Count 1, the first degree murder of Mendoza (Pen. Code, 187, subd. (a)).[13] The jury found true two special circumstance allegations, i.e., that Martinez was convicted of more than one offense of murder in the first or second degree ( 190.2, subd. (a)(3)) and that the murder was carried out to further the activities of a criminal street gang ( 190.2, subd. (a)(22)). Gun use ( 12022.53, subds. (b), (c) & (d)) and gang enhancement ( 186.22, subd. (b)(1)(C) & (4)) allegations were also found true.

Count 2, the first degree murder of Santiago ( 187, subd. (a)). As with count 1, the jury found true two special circumstance allegations ( 190.2, subd. (a)(3) & (22)), gun use ( 12022.53, subds. (b), (c) & (d)) and gang enhancement ( 186.22, subd. (b)(1)(C) & (4)) allegations.

Counts 5 and 6, possession of a firearm by a minor ( 12101, subd. (a)(1)). The jury found true a gang enhancement allegation ( 186.22, subd. (b)(1)(A)).

Count 7, possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)). The jury found not true a gang enhancement allegation as to this count.

The jury similarly found defendant Solis guilty of the first degree murders of Mendoza and Santiago (counts 1 & 2) and found true the same special circumstance, gun use and gang allegations as were found true against Martinez. Solis was found guilty of counts 3 and 4, possession of a firearm by a minor ( 12101, subd. (a)(1)) and a gang enhancement allegation was found true ( 186.22, subd. (b)(1)(A)).

On November 27, 2007, the trial court sentenced both defendants on counts 1 and 2 to two terms of life without the possibility of parole plus two consecutive 25-years-to- life terms ( 12022.53, subd. (d)). Solis was sentenced to an additional two-year term for possession of a firearm by a minor (count 3) plus the midterm of three years for the gang enhancement. Martinez was sentenced to a consecutive two-year term for count 5 plus a three-year term for the gang enhancement.[14]

DISCUSSION

I. Sufficiency of the evidence.

Martinez and Solis make two contentions concerning the sufficiency of the evidence. They first contend there is insufficient evidence to support the jurys finding that the murders of Santiago and Mendoza (counts 1 & 2) were premeditated and deliberate; and therefore their federal due process rights have been violated (Jackson v. Virginia (1979) 443 U.S. 307, 318). Second, they contend there is insufficient evidence to support the true findings on the gang enhancement and special circumstances allegations. As we explain below, we disagree with both contentions.

A. There is sufficient evidence to support the jurys finding that the defendants premeditated and deliberated the murders.

Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation . . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] (People v. Perez (1992) 2 Cal.4th 1117, 1124.) We draw all reasonable inferences in support of the judgment. [Citation.] (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)  The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] (People v. Snow (2003) 30 Cal.4th 43, 66.) An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)

A murder that is premeditated and deliberate is murder of the first degree. ( 189; People v. Burney (2009) 47 Cal.4th 203, 235.) 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.] (Burney, at p. 235.) The process of premeditation and deliberation does not require any extended period of time; rather, 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.] [Citation.] (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Three basic, but not exhaustive, categories of evidence will sustain a finding of premeditation and deliberation: (1) motive; (2) manner of killing; and (3) planning activity. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; see also People v. Perez, supra, 2 Cal.4th at p. 1125.) All factors need not be present to sustain a finding of premeditation and deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.)

Factors supporting the jurys finding of premeditation and deliberation are present here. There is evidence of a gang-related motive. Both defendants are members of the Cypress Park gang, whose main rival is the Avenues gang. The party at which the murders occurred was located in Avenues territory. Witnesses who were loitering at the bottom of the hill saw at least two men with guns coming down the hill, one of whom wore a black hat with a C on it; according to the gang expert, Officer Hurd, gang members often wear sports paraphernalia of a team whose name begins with the same letter as their gang. Aaron Ronquillo heard shouts of  get out of here,   Cypress,  and  get out of our hood  coming from the same direction as the men with guns. The man in the jersey held a gun to Anthony Cardiness head and demanded,  Where are you from a typical gang query or challenge.

Although these facts support a finding that the murders were gang-motivated, defendants downplay them and argue instead that this was not a typical gang attack; rather, the murders of Santiago and Mendoza occurred as the result of some drunken melee gone horribly awry. They suggest that defendants got caught up in the middle of the fight and were trying to break it up. Perhaps that is one interpretation of the evidence; but our task on appeal is not to reweigh reasonable inferences and choose one such inference in favor of another.

Defendants also point out that the victims were not members of a gang; thus, they argue, this undercuts any gang motive. But the victims gang status, or lack thereof, although relevant to, is not dispositive of whether a gang-related motive lay behind the crime. As we have explained above, there is evidence that the defendants were the shooters and that one or both of them issued gang-related challenges. Officer Hurd testified that gangs strive for respect, and they accomplish this by, for example, engaging in crimes to create an atmosphere of intimidation and fear. A shooting such as occurred at Beass party creates intimidation and fear in the community and, in the view of the gang, leads to respect. Therefore, notwithstanding that neither Santiago nor Mendoza were gang members, the evidence shows that the motive for the murders was gang related; and motive in turn supports the finding of premeditation and deliberation.

The manner of killing supports the finding as well. Several witnesses (Jackson, Fuentes and Mejia) testified that they heard different groupings of gunfire, between two to three; this suggests or supports the inference that the shooters paused or hesitatedhence they had time to deliberatebefore shooting. Also, Santiago was knocked unconscious during the fight; therefore, he was no immediate threat. Friends put him in the back of Eagan Jacksons car, but he was shot and pulled out of the car. Also, Santiago had five gunshot wounds and Mendoza had sixteen. All five of Santiagos wounds were to the back. Some wounds to Mendozas back suggest that his body was in motion while being shot, while others were consistent with attempts to defend himself. From this evidence, the jury could have inferred that the victims were shot either while unconscious or fleeing, thereby supporting the conclusion that their murders were deliberate, rather than spontaneous. (See People v. Hawkins (1995)10 Cal.4th 920, 956-957 [manner of execution style killing supported conclusion that murder was premeditated and deliberate], disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.)

Finally, some evidence supports planning. The jury could have believed that Solis and Martinez went to the party together, armed with guns, which supports an inference that they planned or considered shooting someone. (See People v. Steele (2002) 27 Cal.4th 1230, 1250 [carrying the fatal knife into the victims home showed planning].) That they might have armed themselves to protect themselves while in enemy turf is also one possibility, as defendant Solis suggests, but the jury was entitled to make either inference.

Thus, in sum, evidence of a gang-related motive, manner of killing and planning activity supports the jurys finding that the murders were premeditated and deliberate.

B. There is sufficient evidence to support the true findings on the gang enhancement and special circumstances allegations.

The jury found true gang enhancement allegations under section 186.22, subdivision (b)(1) and a gang-special circumstance under section 190.2, subd. (a)(22). The substantial evidence test we articulated above applies to our determination whether there is sufficient evidence to support the jurys true findings on the gang enhancement (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322) and on the special circumstance (People v. Mickey (1991) 54 Cal.3d 612, 678).

1. Gang enhancement allegations.

Section 186.22, subdivision (b)(1), provides for a sentence enhancement when a defendant is convicted of enumerated felonies 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. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047; see also People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Hill (2006) 142 Cal.App.4th 770, 773.) It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930; see also People v. Romero (2006) 140 Cal.App.4th 15, 18-19.)

The same evidence we discussed above in connection with the gang-related nature of the crimes is relevant to this issue. Specifically, evidence shows that Solis and Martinez are members of the same gang, Cypress Park. Gang challenges (e.g., where are you from, get out of our hood, and Cypress) were heard during the events.

Solis, however, counters that the witnesses did not attribute these statements to him as opposed to Martinez, who was identified as the man who pointed a gun at Anthony Cardiness head and asked, Where are you from? The evidence, however, shows that Martinez and Solis came down the hill together, both of them fired their guns and at least one witness, Ronquillo, said that gang-related statements appeared to be coming from the direction of the men with guns. (See People v. Leon (2008) 161 Cal.App.4th 149, 163 [sufficient evidence to support section 186.22 enhancement where prosecution established defendant committed crimes in association with fellow gang member, knowing he was a gang member]; People v. Romero, supra, 140 Cal.App.4th at p. 20 [evidence that defendant intended to commit a crime, . . . intended to help [codefendant] commit a crime, and . . . knew [codefendant] was a member of his gang created a reasonable inference that appellant possessed specific intent required by section 186.22].)

Next, defendants argue that there is insufficient evidence of the gangs primary activities. Subdivision (f) of section 186.22 provides that a criminal street gang is one that has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute, including assault, robbery and unlawful homicide. (See also 186.22, subd. (e)(1)-(33).) 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.] That definition would necessarily exclude the occasional commission of those crimes by the groups members. . . . [] 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. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324.) The trier of fact may look to past and present criminal activities. (Ibid.) Also sufficient is expert testimony, where the expert testifies he personally investigated hundreds of crimes committed by gang members and based his observations on personal experiences and information from colleagues. (Id. at p. 324.)

In People v. Margarejo (2008) 162 Cal.App.4th 102, 107, the Court of Appeal held that there was sufficient evidence to support the gang enhancement and, in particular, the statutory criteria concerning the gangs primary activities, where the gang expert testified that the gangs main activity is  to complete crimes,  including murder. (Id. at p. 108, italics omitted.) In reaching its holding, Margarejo distinguished In re Alexander L. (2007) 149 Cal.App.4th 605, upon which Solis and Martinez also rely. In Alexander L., when asked about the gangs primary activities, the gang expert equivocated: I know theyve committed quite a few assaults with a deadly weapon, several assaults. I know theyve been involved in murders. [] I know theyve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.  (Id. at p. 611.) Then, on cross-examination, he testified that the vast majority of cases involving the gang were graffiti related. (Id. at p. 612.)

Unlike in Alexander L., the gang expert here did not equivocate. Officer Eric Hurd laid a foundation for his testimony: he worked gang detail for the last two and one-half years and hed made well over 100 arrests of gang members, anywhere from possession of narcotics to firearms, and my primary assignment area is Cypress Park. He then clearly and without equivocation explained that Cypress Parks primary activities are assault with a deadly weapon, attempted murder, murder, robbery, and sales and possession of controlled substances. Officer Hurd also testified that Jose Luis Casillas was convicted of possession for sale of controlled substances; and Alfredo Melendez, Jr., was convicted of assault with a deadly weapon and brandishing a firearm to a police officer.[15] Both Casillas and Melendez were Cypress Park gang members, and Officer Hurd was personally familiar with Melendez, who self-admitted his gang membership to him.

This evidence was sufficient to satisfy the statutory criteria showing that the gang has as its primary activities one or more of the expressly numerated crimes.

2. Special circumstance allegations.

The jury also found true the gang special circumstance, which provides that any defendant found guilty of first degree murder shall be punished by death or by life in state prison without the possibility of parole if the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang. ( 190.2, subd. (a)(22).) We have already more than adequately addressed why this additional contention that the evidence is insufficient to support the jurys true findings on the special circumstances fails. But we add the following to address Soliss argument that theres inadequate evidence specifically of his active participation in Cypress Park and knowledge of the gangs criminal activity.

A person who actively participates in a criminal street gang is one whose involvement is more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747 [interpreting language in section 186.22, subdivision (a)].) There is ample evidence that Soliss participation in Cypress Park was more than nominal or passive. First, there was evidence that Cypress Park and other gang-related statements were shouted during the incident by either Solis or his companion. Second, Solis admitted in August and September 2005close in time to the January 2006 murders at issueto officers that he was a Cypress Park gang member and that his moniker is Kwan. He has a gang tattoo to substantiate his admission. In his statement to detectives, he said he was walked into the gang a year before. Third, Cypress Park graffiti was found in his home.[16] Finally, guns were found in his home. This evidence is more than sufficient to sustain the true findings on the special-circumstance allegations under section 190.2, subdivision (a)(22).

II. Limiting instruction regarding the gun.

The trial court allowed the prosecutor, over Soliss objection, to argue that although the gun found in Soliss home was not the murder weapon, its presence in his home showed he had access to similar guns. Solis now contends that the admission of this evidence violated his state and federal due process and fair trial rights.

A. Background.

Forty and .44 caliber bullets or fragments were recovered from Santiagos and Mendozas bodies. Based on rifling characteristics, the .40 caliber bullets were fired from a Smith & Wesson gun. From defendant Soliss home, officers recovered a loaded .40 caliber semiautomatic pistol with ammunition and a sawed-off shotgun. Live .40 caliber ammunition rounds also in Soliss home were stamped .40 caliber Smith & Wesson, Winchester brand. The .40 caliber bullets retrieved from the victims bodies were not, however, fired from the .40 caliber gun in Soliss home, although the Peoples firearm expert testified they shared the same general rifling characteristics. The firearm expert also testified that Winchester is one of a whole bunch of makers of .40 caliber bullets, but it is a big part of the market.

Before Soliss statement to detectives was introduced, the defense requested a limiting instruction as to what counts Soliss statements about guns referred. The trial court advised the jury to consider that evidence with respect to counts 3 and 4 only: You are going to hear some references in the conversation regarding firearms, and I should just admonish you that that evidence can only be used and considered by you for the limited purpose of determining whether or not the evidence is sufficient to prove beyond a reasonable doubt counts 3 and 4 against defendant Solis, and it cannot be considered for any other purpose in this trial.

Later, during a discussion of the jury instructions, the prosecutor asked the trial court to allow her to argue that Solis had a connection in Highland Park from which he could get a Smith & Wesson of the particular model that was recovered. In other words, if Solis had a dealer who could provide him with that make and model, he would have access to other firearms of a similar make and model that could fire .40 caliber projectiles. The trial court replied: Well, I dont think that youre barred from arguing that. I think thatas part of the gang mentality. [] And Ive heard arguments in the past wherein experts have testified that gang members share guns, and make guns, firearms, easily accessible to one another, and then they get rid of the weapon, theyll transfer it from one gang member to the other. [] I think you can argue in general terms that this individual, even by his own statements, if theyre to be believed on the D.V.D., that he had access to individuals who could furnish weapons, including the type of weapon used in [the] alleged crime.

The prosecutor then asked if the jury would be permitted to consider the recovery of the gun from Soliss home for that purpose, and the trial court said that the jury would be permitted to infer he had a dealer who could give him weapons. Soliss defense counsel objected and argued that there was no evidence how common the gun is and the total population of the gun in the community; without that evidence, it is total speculation.

During closing argument, the prosecutor discussed the search of Soliss home: But they also found a gun, and this gun was a Smith and Wesson with a particular model number that Stella Chu testified had the same general rifling characteristics as the bullets that were recoveredor the projectiles that were recovered during the autopsies of [the victims]. [] Now, she was able to make a comparison with the test-fires and she saideven though she said that these, the test-fires from this gun, did not exactly matchin other words, this gun itself was not actually the firearm that fired the bullets that were then lodged inside [the victims]she said that the general rifling characteristics were sufficiently unusual, sufficiently distinct in this particular weapon that it was a weapon of this make, a weapon of this model that actually fired the shots. [] And we know that defendant Solis, from his own statementand you heard his statement, you saw him being interviewed, you heard him call that gunit was a beauty. I bought it from aI buy my guns from a guy in Highland Park. . . . [] . . . [] So what does it tell you that this particular gun was found in defendant Solis[s] residence? [] Well, it tells you that he had access to this one, brand-new, in a box, that he could pay three bills for, and it was sufficiently distinctive, sufficiently unusual, where this one came from, there are other guns of this make, there are other guns of this model, and if the defendant had access to this one, he has access to others.

Soliss defense counsel responded in closing: From Mr. Soliss statement and from that gun, shes asking you to assume that he had a .40 caliber before and that .40 caliber was the one used in the crime, and there is no proof that he had the .40 caliber before that was used in the crime.

In rebuttal, the prosecutor added: We know that there were .40 caliber projectiles that were fired from the same make and model of the Smith and Wesson that Solis had. We know Solis had a source, and he says, quote, Where I get my guns from, it was some guy from Highland Park[.] Defense counsel for Martinez asserted an improper objection, which the trial court overruled.[17] Based on defendant Soliss statement that he just got the .40 caliber gun in his home before his home was searched, the prosecutor suggested he got a new gun because Solis had to get rid of the one he used to kill Santiago and Mendoza.

B. Any error in admitting evidence and argument regarding the guns found in Soliss residence outside the context of counts 3 and 4 was harmless.

Solis makes two arguments why allowing the prosecutor to link the gun found in his home to the murders violated his state and federal due process and fair trial rights. First, the evidence and argument amounts to irrelevant and inflammatory character evidence. Second, the evidence and arguments posed an undue risk of misuse of powerful but unfounded, unreliable, and misleading expert testimony to sustain a doubtful identification . . . . Although Solis refers to inflammatory character evidence, he never directly discusses Evidence Code section 1101.[18] Rather, the character evidence argument is conflated with one under Evidence Code section 352.[19] In any event, we conclude that even if admission of the evidence was error, it was harmless.

A trial court has wide discretion in determining the admissibility of evidence, that is, in deciding whether the evidence is relevant and whether Evidence Code section 352 precludes its admission. (People v. Lucas (1995) 12 Cal.4th 415, 449; People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) The trial courts decision to admit evidence will not be disturbed on appeal absent an abuse of discretion.

Although not cited by the parties, People v. Riser (1956) 47 Cal.2d 566 (Riser),[20] is on point. Riser involved the shooting murder of two victims during a robbery. The victims were killed with a Smith and Wesson .38 Special revolver, which was never recovered. (Id. at p. 573.) But police did recover from the defendants, among other things, two .38 caliber guns. (Id. at p. 576.) Because the bullets found at the scene of the crime could not have been fired from the guns found in defendants possession, the court said: When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendants possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendants possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.] (Riser, supra, at p. 577, italics added.) Nonetheless, based on other properly admitted firearm evidence from which the jury could have concluded that the defendant possessed firearms, the erroneous admission of the guns and other related gun items was found to be not prejudicial.[21]

Since Riser, courts have reiterated that evidence a defendant possessed weapons not used in the commission of the offense is inadmissible where its only relevance is to show the defendant is the type of person who surrounds himself with weapons, a fact of no relevant consequence to determination of the guilt or innocence of the defendant. (People v. Henderson (1976) 58 Cal.App.3d 349, 360; see also People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393; see generally People v. Jablonski (2006) 37 Cal.4th 774, 822.) Conversely, evidence of the defendants possession of weapons is admissible when probative on issues other than the defendants propensity to possess weapons. (People v. Cox (2003) 30 Cal.4th 916, 956 [when weapons are otherwise relevant to the crimes commission, but are not the actual murder weapon, they may still be admissible; guns were relevant either as possible murder weapons or as weapons used to coerce the victims into defendants car]; disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Smith (2003) 30 Cal.4th 581, 614 [although the ammunition and derringer were not used in the killing, [t]heir circumstantial relevancy . . . seems clear, and they were, . . . properly admitted; evidence was relevant to the defendants state of mind]; People v. Gunder (2007) 151 Cal.App.4th 412, 416.)

To show that Solis had access to weapons, including weapons of the type used to kill Mendoza and Santiago, the prosecutor here explained that she wanted to introduce evidence of the .40 caliber gun found in Soliss home and his statement that he bought it from a guy in Highland Park. The trial court allowed the prosecutor make this argument, and she proceeded to tell the jury that if Solis had access to this one, he has access to others. Substantively, this is no different than saying that the defendant is the type of person who surrounds himself with weapons, a rationale rejected by Riser as a justification for admitting such evidence. No rationale other than one showing that Solis is the type of person who surrounds himself with weapons was offered to justify the evidence and argument, such as credibility or statement of mind. Therefore, the argument should have been precluded under Riser.

We nonetheless conclude that admission of the evidence and argument was harmless error, whether the standard in People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1967) 386 U.S. 18, 24, is applied. (See, e.g., People v. Jablonski, supra, 37 Cal.4th at p. 823 [citing both standards of review].) We first note that it was repeatedly made clear throughout trialby the firearms expert, the prosecutor and defense counselthat the .40 caliber gun found in Soliss home was not the murder weapon. Also, the challenged evidence was admissible as to counts 3 and 4, possession of a firearm by a minor. Therefore, unlike in Riser, evidence that Solis kept a .40 caliber gun in his home was admissible in any event, leading to the inescapable inference or fact that defendant had access to .40 caliber weapons. The prosecutor should not have been allowed to highlight that fact outside the context of counts 3 and 4 and to draw a connection to the murder weapon; but we cannot conclude it was prejudicial error.

In so concluding, we note that there was also strong evidence that Solis was one of the shooters. Solis and Martinez were both members of Cypress Park gang; gang paraphernalia was found in Soliss home and he self-admitted his membership to police officers. Erica Beas testified that Martinez was at the party with Solis. A police officer identified Martinez from a photograph taken at the party. Cypress was shouted during the shootings. Before Santiago and Mendoza were shot, witnesses saw two or three men coming down the hill carrying guns. At a live line-up, Charlyne Vivanco identified Solis as having the same hair and skin color as the shooter, and she wrote,  The subject in my case may be number 4,  by which she meant No. 4 might be the person who shot Santiago. Aaron Ronquillo identified Solis at a live line-up as  [t]he subject in my case.  He also identified Solis as one of the shooters at the preliminary hearing. Eagan Jackson identified Solis as maybe one of the shooters.

Having concluded that any error was harmless, we also reject Soliss federal constitutional and ineffective assistance of counsel claims. A defendants due process rights are not violated whenever a state court renders an erroneous evidentiary ruling. (Montana v. Egelhoff (1996) 518 U.S. 37, 52-53 [such due process claims, usually citing Chambers v. Mississippi (1973) 410 U.S. 284, are often overbroad, as Chambers was a fact intensive, specific case].) Also, because we have found any error to be harmless, Soliss ineffective assistance of counsel claim fails: there is no reasonable probability that but for any error of counsel in failing to assert an objection that the outcome would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [a defendant claiming ineffective assistance of counsel must also show prejudice; namely, a reasonable probability that but for counsels error, the result of the proceeding would have been different].)

III. Admission of other crimes and bad character evidence did not result in gross unfairness or the denial of a fair trial.

Solis next alludes to a cavalcade of other crimes and bad character evidence that was, he contends, improperly admitted at trial and resulted in gross unfairness and denial of a fair trial. The evidence that he argues should have been excluded includes a raft of gang testimony and references to his booking photo and status as a juvenile probationer.[22]

First, Solis generally objects to admission of a raft of gang evidence and specifically to crimes committed by other Cypress Park gang members; he suggests that the gang allegations could have been bifurcated.[23] Gang enhancement and special circumstances, however, were alleged; therefore, gang evidence was generally relevant and admissible and need not have been bifurcated. (See generally, People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [trial court has discretion whether to bifurcate gang allegations]; People v. Williams (1997) 16 Cal.4th 153, 193 [in a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect]; People v. Albarran (2007) 149 Cal.App.4th 214, 223-224, 233-238 & fn. 4 [where a gang enhancement is alleged, gang evidence is necessary to prove the enhancement] (Perluss, conc.)].) Thus, Officer Hurds testimony about predicate crimes committed by other Cypress Park gang membersJose Luis Casillass conviction for possession for sale of controlled substances and Alfredo Melendez, Jr.s conviction for assault with a deadly weapon and brandishing a firearm to a police officerwas necessary to establish an element of the enhancement. (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.)

Solis also now objects to evidence alluding to his criminal past. A detective testified that after he received information that Solis might be a suspect, he placed Soliss photograph into a line-up and showed it to witnesses. The detective testified the six-pack was created on February 7, 2006. When asked how photographs for six-packs are selected, the detective answered: What happens is these are booking photos. The system is run by L.A. County. Anyone who has been booked for any kind of crime in the L.A. County system . . . the booking photos are within the system. In addition to testimony about Soliss booking photo, an officer who searched Soliss home, when asked how he knew that a certain room belonged to Solis, replied, It was through thehis probation officer, Mr. Tim Brown, and his mother.

These references could suggest that Solis had a criminal past. But no objections were asserted to this testimony; therefore, the issue has not been preserved for review. (People v. Waidla (2000) 22 Cal.4th 690, 717.) Notwithstanding the absence of objections to the challenged evidence, we conclude that any error in its admission was harmless. The references to Soliss booking photo and probation officer were relatively brief. As to the six-packs, there was no direct statement that Soliss photo in the six-pack was a booking photo. Also, we have discussed above in Discussion, Section II, the evidence against Solis in the context of a harmless error analysis and need not repeat it here.[24]

IV. Admission of Martinezs statement did not violate Soliss confrontation rights.

Solis contends that the admission of statements his codefendant, Martinez, made to a detective violated his due process and confrontation rights, citing Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v. Aranda (1965) 63 Cal.2d 518; and Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

A. Additional facts.

Detective Rivera interviewed defendant Martinez. During the interview, the detectives strategy was to get Martinez to admit his involvement in the crimes by suggesting that Martinez was defending himself against attack: [T]here was some other dudes there that were shooting. Okay? But nobodys saying that you shot. You understand me? The detective suggested that somebody came and tried to help you and this other dude went crazy and started shooting. The detective didnt know who this dude was, and Martinez said he didnt know either.

Detective Rivera: . . . [] Whoever it was that came to try [and] help you, man. I dont know if it was one of your homeboys. I dont know if it was just

Isaac Martinez: Im telling you I

Detective Rivera: Hey, listen. But I dont know if it was a homeboy. I dont know if its just some one of the dudes at the party that was coming out to try [and] help you. That could [have] been it. But I need to be able to explain it, man. . . .

Isaac Martinez: Or theres probably someone else at the party, no? But other than that so I dont know.

Detective Rivera: I understand. Do you know who it was that was shooting into the car?

Isaac Martinez: I dont know. They probably came and help me.

Later, the detective asked:

Detective Rivera: . . . Do you know who this other dude was that was there trying to help you?

Isaac Martinez: No.

Detective Rivera: And I only think he was trying to help you. Im not even sure. Do you know who the other dude is?

Isaac Martinez: I fuck, . . . he saved my life, fool.

Detective Rivera: He saved your life? You think if he if this dude wouldnt of shot, they would of got at you or what?

Isaac Martinez: Hell yeah.

Detecti