P. v. Uriquiza

Filed 8/12/09 P. v. Uriquiza CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed in part, reversed in part and remanded.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

On the night of July 24, 2005, defendant and appellant Humberto Uriquiza (defendant) murdered Octaviano Ramirez, whom defendant suspected of having information relating to the murder of one of defendants fellow gang members. A jury convicted defendant of first degree murder. (Pen. Code, 187, subd. (a).)[1]The jury also found true special allegations that defendant personally and intentionally discharged a firearm, causing the victims death ( 12022.53, subd. (d)), and that he committed his crime for the benefit of, at the direction of, or in association with a criminal street gang (186.22, subd. (b)(1)(C)).

On appeal, defendant argues that (1) the trial court erred by failing to instruct the jury pursuant to CALCRIM No. 335 that one of the witnesses against defendant was an accomplice as a matter of law; (2) the trial court erred by instructing the jury that defendant could be convicted of the murder on an aiding and abetting theory; (3) the evidence was insufficient to support the jurys true finding on the gang enhancement allegation; and (4) the trial court erred by ordering defendant to pay restitution when defendant was given no notice of the nature or amount of restitution sought, and no evidence was submitted to support the amount ordered.

We conclude that only the last of these contentions has merit. We vacate the restitution orders and remand to the trial court for a hearing pursuant to section 1203, subdivision (f)(1). In addition, we modify the judgment to impose an additional $20 court security fee pursuant to section 1465.8, subdivision (a)(1). In all other respects, we affirm the judgment.

BACKGROUND[2]

A. The Prosecution Case

The South Side Watts Varrio Grape Street gang (Varrio Grape) was a predominantly Hispanic gang located in the Watts area of Los Angeles, near the Jordan Downs Housing Project. Varrio Grape shared much of its territory with the East Side Grape Street Crips (Grape Street Crips), a predominantly African-American gang. The territory encompassed the 9600 block of Croesus Avenue, between 95th and 97th Streets.

Defendant was a member of Varrio Grape, known by the gang moniker Raccoon. Christian Villa also was a member of Varrio Grape, known by the gang moniker Clever. Orlando Ortiz, another member of Varrio Grape, was known by the gang moniker Saggy. Saggy[3]lived at 9616 Croesus Avenue. Saggys minor sister, Jocelyn, resided in the same household.

At approximately 3:00 a.m. on the morning of July 6, 2005, Clever was at the house located at 9624 Croesus Avenue, a few doors down from Saggys house. Shots were fired from the street by persons unknown. Clever was killed. Defendant was a friend of Clever and was upset by Clevers murder.

1. The Testimony of Tavares Hills

Tavares Hills was a member of the Pirus, a Blood street gang.[4] Mr. Hills was in a relationship with Saggys sister, Jocelyn. At the time of the murder, Jocelyn was pregnant with Mr. Hillss child. [5]

Shortly before midnight on July 24, 2005, Mr. Hills stopped at Saggys house to drop some food off for Jocelyn. He stayed for a few minutes, then left to walk the two blocks to his home. Saggy walked Mr. Hills out to lock the door behind him.

As Mr. Hills stepped off the front porch, he saw defendant and an unknown male following Octaviano Ramirez up Croesus Avenue. Defendant had a nine-millimeter handgun pointed at Mr. Ramirez. Mr. Hills recognized Mr. Ramirez because Mr. Ramirezs children went to school with Mr. Hillss cousins.

Defendant or his accomplice made a bird call sound that Mr. Hills termed the Grape Street call. Mr. Hills testified that the sound was a signal between members of Varrio Grape. Defendant called out, Saggy. Saggy asked who it was. Defendant said, Its me. Its Coon. Saggy went inside the house and locked the door.

Mr. Hills asked defendant what was going on. As they walked along Croesus Avenue, defendant told Mr. Hills that Mr. Ramirez had information about who had killed Clever. Mr. Hills asked defendant how he knew that. Defendant said that Mr. Ramirez had told him so. Mr. Ramirez protested that he did not know who had done it.

In front of a duplex at 9604 Croesus, defendant told Mr. Ramirez to get on his knees and said something to Mr. Ramirez in Spanish. At that point, Saggy came out of his house and started toward the group; he approached to within 20 to 25 feet and demanded, What the Fs going on? When Saggy saw what was happening, he turned and went back to his house.

Mr. Hills knew that Mr. Ramirez was not a gang member and that he had small children. Mr. Hills told defendant several times that he should give Mr. Ramirez a passthat is, let Mr. Ramirez go. Defendant lowered and raised his handgun several times, as if considering the request. Defendant then shot Mr. Ramirez multiple times. Defendant and the other male fled toward Saggys house. Mr. Hills was shocked at first, but then he fled toward his home. Mr. Hills identified defendant in open court as the man who had murdered Mr. Ramirez.

Mr. Hills testified that he did not immediately inform police about the murder because he was afraid of retaliation from defendant and defendants gang. Approximately one month after the murder,[6]Mr. Hills decided that the right thing to do was to tell police that he had information about Mr. Ramirezs murder. When a deputy of the Los Angeles County Sheriffs Department (LASD) stopped Mr. Hills to ask if Mr. Hills was on parole or probation, Mr. Hills told the deputy that he had information about the murder. The deputy took Mr. Hillss contact information and told Mr. Hills someone would get back to him, but no one ever did.

In February 2006, Mr. Hills was arrested by the Los Angeles Police Department (LAPD) on charges unrelated to the murder of Mr. Ramirez. (See footnote 5 ante.) Mr. Hills told an LAPD detective that he had information about Mr. Ramirezs murder. A few days later, two LASD detectives interviewed Mr. Hills about the murder, but the detectives did not believe Mr. Hills.[7] Mr. Hills suggested that police put him in a cell with defendant to see if he could get defendant to talk about the crime.

On April 5, 2006, Mr. Hills was placed in an isolation cell with defendant at the Los Angeles County Jail.[8] Their conversation was recorded. A portion of the recording was played and a transcript provided for the jury.

During the conversation in their jail cell, Mr. Hills tried to get defendant to talk by telling defendant that the house where Mr. Ramirez was killed was a dope house that had surveillance cameras, and that the people who lived at the house had a videotape of the murder and were talking about turning it in. Mr. Hills also told defendant that some children who lived next to Saggys house were saying that Raccoon (defendant) had killed Mr. Ramirez. Mr. Hills told defendant that two crack cocaine addicts from the neighborhoodBobo and Kevinalso had seen the murder.

Mr. Hills testified that defendant appeared to be nervous, and defendant told Mr. Hills that he was scared. Defendant said that he might flee the area when he got out of jail. Defendant said to Mr. Hills, Cant do no life sentence, G. Defendant said that he was going to send friends to check out the surveillance camera, but he did not believe the police had a videotape. Defendant stated, But if they had the camera, they would have seen my face, and they would say, oh we already know who it is. Defendant also remarked that the police did not have any fingerprints. Defendant said he would send someone to get rid of the witnesses, Bobo and Kevin, although he did not think they had seen his face because he had a hoodie on and it was late at night. Defendantwhose head was shaved bald on the night of the murdersaid he would let his hair grow.

During the conversation, Mr. Hills asked defendant, You didnt touch them bullets, did you? What was that, a 9, .380? . . . . Defendant responded, Hollow points. [] . . . [] Hollow point bullets, thats what it was. Mr. Hills said, Thats what it was? 11, 12 shot? . . . Defendant responded, 19. Mr. Hills said, 19? Goddamn. What you had, a semi-clip? Hey, I didnt know that mother fucker had it in him to shoot that many. Nigger said 19. Defendant responded, Glo[c]k.

Defendant later said, They aint got me for nothin. I didnt kill nobody. I dont know nobody.

2. Testimony of Jesus Moreno

Jesus Moreno lived on Croesus Avenue next door to Saggy. Shortly before midnight on the night of the murder, Mr. Moreno heard some people talking outside his house. He went outside to make sure no one was stealing the stereos from his familys cars. He saw three Hispanic men in front of his house, but the streetlight was broken and it was too dark to see their faces. One man was wearing a yellow shirt. The others were wearing hooded sweaters or jackets. One of them had the hood up. When the men heard Mr. Moreno, they moved north on Croesus Avenue toward 95th Street.

The men stopped approximately three houses further down. Mr. Moreno heard one of the men tell the man in the yellow shirt to hand over the money. The man responded that he did not owe any money. Mr. Moreno then heard some shots. He did not see the shooting because his view was obstructed by plants and it was dark. Mr. Moreno testified that he did not recognize defendant as one of the three men. He did not see the gun.

Mr. Moreno testified that, before the shooting, he saw Saggy come out of his house. Saggy walked toward the other men with his arm down by his right side, but Mr. Moreno did not see if Saggy was carrying anything. Contrary to the testimony of Mr. Hills, Mr. Moreno testified that Saggy was present when the shots were fired. All of the men fled. Saggy ran toward his house.

Shortly after the murder, Mr. Moreno told police that he had seen Saggy with a handgun and that Saggy was the shooter. (See post.) At trial, however, Mr. Moreno testified that he was no longer sure and that he might have been mistaken because it was dark.

On cross-examination, Mr. Moreno testified he also saw another man come out of the house next to Saggys and go to the men in the street. He could not describe the man because it was dark.

3. Other Evidence

Shortly after midnight on July 25, 2005, LASD deputies responded to a call and found the body of Mr. Ramirez on the sidewalk in front of 9604 Croesus Avenue. Mr. Ramirez was pronounced dead at the scene. An autopsy revealed that Mr. Ramirez had been shot 12 times, including six times in the back. Eight nine-millimeter cartridge casings were collected from the scene. Examination of bullet fragments and the cartridge casings indicated that the murder weapon was a nine-millimeter Glock firearm.

Two days after the murder, on July 26, 2005, Mr. Moreno telephoned police and spoke to LASD Detective Rudolf Santana. In the telephone interview, Mr. Moreno identified Saggy as the murderer and told police that he had seen Saggy with a nine-millimeter handgun. In March 2006, LASD detectives Shannon Laren and Rudolf Santana interviewed Mr. Moreno. During the interview, they showed Mr. Moreno a group of 10 to 12 photographs of Varrio Grape members. Mr. Moreno identified a photograph of defendant as one of the men present at the time of the murder, but not as the shooter. Mr. Moreno again identified Saggy as the shooter. Mr. Moreno also identified photographs of two other men he said were present at the murder, but the detectives later determined that one of those men had been in custody at the time. Mr. Moreno was unable to identify a photograph of the victim, Mr. Ramirez. Detective Laren also showed Mr. Moreno a photograph of Tavares Hills; Mr. Moreno stated that he had never seen Mr. Hills.

Detective Laren testified that there were a lot of tall, thick, overgrown trees on the north end of Mr. Morenos yard, and that Mr. Morenos yard was 120 to 150 feet from the site of the murder.

The prosecution also introduced evidence that defendant had a prior felony conviction in June 2005 for driving a vehicle without the owners consent (Veh. Code, 10851, subd. (a)).

4. The Gang Evidence

On December 23, 1999, February 7, 2003 and May 21, 2005, defendant had identified himself to various LASD deputies as a member of Varrio Grape. Defendant had a tattoo of Watts Varrio Grape across his upper chest or neck area.

LAPD Detective Scott Stevens testified as the prosecutions gang expert. Detective Stevens worked in the LAPD southeast division for 11 years, and in the gang unit beginning in 1999. Detective Stevens was assigned to east side Hispanic gangs, including Varrio Grape. His assignment was to investigate, document and identify gangs, gang trends and persons within gangs. He had testified in Superior Court as an expert on Varrio Grape approximately a dozen times before.

Detective Stevens testified that, when Watts was primarily an African-American community, the area around the Jordan Downs Housing Project area was controlled by Grape Street Crips. As more Hispanics moved into the Watts area, they formed their own gang, the Watts Varrio Primera (Varrio Primera), which focused on the area to the south of Jordan Downs. One of Varrio Primeras two main cliques was the Grape Street clique, which began to traffic in narcotics in association with Grape Street Crips. The Grape Street cliques association with the African-American Grape Street Crips gang caused tension between the Grape Street clique and the other major clique in Varrio Primera, the Weigand Avenue clique. Ultimately, the Grape Street clique split off from Varrio Primera to become a separate gang, Varrio Grape. The members of Varrio Grape considered members of the former Weigand Avenue clique (now known as the Watts Colonial Weigand gang) to be enemies.

Varrio Grape had approximately 400 members, which included four or five cliques. Varrio Grapes color was purple. Varrio Grapes gang sign was in the form of the lower case letter g. The prosecution introduced a photograph taken by Detective Stevens that showed defendant making the Varrio Grape gang sign. Detective Stevens testified that he knew defendant from approximately one dozen field contacts, and that defendant was an admitted member of Varrio Grape.

When asked to identify Varrio Grapes primary activities, Detective Stevens testified, Runs the gauntlet. Ive arrested them for as little as a $5 sack of marijuana. Investigated for robberies, graffiti, vandalism, narcotics use, weapons violations, possession of firearms, murder, conspiracy to commit murder, kidnapping, kidnap for ransom, homicide. I think Ive already said that. Street robberies, assault with a deadly weapon.

Detective Stevens testified that he had a strong belief that Varrio Grape taxed narcotics dealers as a way to dominate and control the people within their territory. Detective Stevens believed that narcotics dealers were required to obtain the gangs permission to sell narcotics, and were required to pay a portion of their proceeds to the gang. In turn, the gang remitted some portion of the proceeds to the Mexican Mafia. Detective Stevens admitted, however, that he had never arrested anyone for taxing drug dealers, nor had any gang members admitted to such a scheme.

One member of Varrio Grape had been convicted in 2003 of shooting into an inhabited dwelling. Another member had been convicted in 2004 on two counts of attempted murder.

Detective Stevens testified that Saggy had been shot in December 2003. Two members of Varrio GrapeSaggys own gangwere suspects in the shooting.

Detective Stevens testified that the murder of a gang member in the gangs own territory would be considered a show of disrespect and would, in effect, threaten the gangs ability to control its territory. Detective Stevens would expect that the gangand particularly those closest to the murdered gang memberto retaliate against the person who committed the crime or someone close to that person. The murder of a person who had information about the gang members death would benefit the gang because the gang would expect those closest to the murdered gang member to exact revenge and to control their turf. If they failed to do so, they would lose face within the gang and with other gangs.

On cross-examination, Detective Stevens admitted that murder was not a primary activity of Varrio Grape. He testified that kidnapping for ransom was a borderline primary activity because it happen[ed] often and a lot of money was involved.

B. The Defense Case

Defendant did not testify. The only evidence presented by the defense was a recording of Mr. Morenos call with Detective Santana on July 26, 2005. Mr. Morenos statement was largely consistent with his trial testimony, except that he unequivocally named Saggy as the shooter.

C. Procedural Background

Defendant was charged with one count of murder ( 187, subd. (a)) (count 1) and one count of possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 2). The information specially alleged with respect to count 1 that defendant personally and intentionally discharged a firearm, causing Mr. Ramirezs death ( 12022.53, subd. (d)).[9] The information specially alleged with respect to both counts that defendant committed his crimes for the benefit of, at the direction of, and in association with a criminal street gang ( 186.22, subd. (b)(1)(A), (C)), and that defendant had served one prior prison term ( 667.5, subd. (b)).

On count 1, the jury convicted defendant of murder in the first degree and found true the personal firearm use allegation. The jury also convicted defendant on count 2, and found true the gang enhancement allegations with respect to both counts. After a separate court trial, the trial court found true the prior prison term allegation.

The trial court sentenced defendant to state prison for 50 years to life on count 1, consisting of 25 years to life on the murder conviction and a consecutive term of 25 years to life on the personal firearm use enhancement.[10] The trial court sentenced defendant to five years in state prison on count 2, consisting of the mid term of two years plus three years on the gang enhancement. The trial court stayed defendants sentence on count 2 pursuant to section 654. The trial court struck the section 667.5, subdivision (b) prior. The trial court also imposed a $200 restitution fine; a $200 parole revocation restitution fine, stayed; and one $20 court security fee. The trial court ordered defendant to pay $5,000 in restitution to the State Victims Compensation Board,[11]and $3,434 plus interest to Mr. Ramirezs widow, for funeral costs. Defendant was awarded presentence custody credit for actual custody of 728 days, with no conduct credit.

DISCUSSION

A. Instructional Error

Defendant raises two claims of instructional error. First, defendant argues that the trial court was required to instruct the jury pursuant to CALCRIM No. 335[12]that Tavares Hills was an accomplice as a matter of law to the murder of Mr. Ramirez. Instead, the trial court instructed the jury pursuant to CALCRIM No. 334 that the jury was to make a factual determination whether Mr. Hills was an accomplice.[13] Second, defendant argues that the trial court erred by instructing the jury on aiding and abetting liability pursuant to CALCRIM Nos. 400 and 401. We review defendants claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206; People v. Guiuan (1998) 18 Cal.4th 558, 569-570.)

1. Accomplice Instructions

a. Applicable Principles

Section 1111 provides that [a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . . Section 1111 requires corroboration of accomplice testimony because such testimony is inherently untrustworthy . . . . (People v. Tobias (2001) 25 Cal.4th 327, 331.) An accomplice usually testif[ies] in the hope of favor or the expectation of immunity. [Citation.] In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability. [Citation.] (Ibid.)

Section 1111 defines an accomplice as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ( 1111; see also People v. Gordon (1973) 10 Cal.3d 460, 467, disapproved on another ground in People v. Ward (2005) 36 Cal.4th 186, 212.) [A]n accomplice is one who aids or promotes the perpetrators crime with knowledge of the perpetrators unlawful purpose and an intent to assist in the commission of the target crime . . . . (People v. Williams (2008) 43 Cal.4th 584, 637.) Neither a persons presence at the scene of a crime nor his or her failure to attempt to prevent the crime is sufficient in itself to establish that a person is an accomplice. (People v. Rodriguez (1986) 42 Cal.3d 730, 760.) A mere accessory is not an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.)

Ordinarily, whether a witness is an accomplice is a question of fact. (People v. Avila (2006) 38 Cal.4th 491, 565; People v. Sully (1991) 53 Cal.3d 1195, 1227-1228; People v. Rodriguez, supra, 42 Cal.3d at p. 759.) The defendant bears the burden to establish by a preponderance of the evidence that a witness is an accomplice. (People v. Frye (1998) 18 Cal.4th 894, 967-968, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Sully, supra, 53 Cal.3d at p. 1228.) If there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury regarding the law of accomplices. (People v. Tobias, supra, 25 Cal.4th at p. 331; People v. Frye, supra, 18 Cal.4th at pp. 965-966; see also People v. Zapien (1993) 4 Cal.4th 929, 981-982.)

The trial court may determine that a witness is an accomplice as a matter of law only if the facts establishing the witnesss criminal culpability are clear and undisputed. (People v. Avila, supra, 38 Cal.4th at p. 565; People v. Rodriguez, supra, 42 Cal.3d at p. 759.) If the evidence establishes that the witness was an accomplice as a matter of law, the jury must be so instructed. (People v. Zapien, supra, 4 Cal.4th at p. 982.) When, however, the evidence is disputed or supports conflicting inferences, the trial court must instruct the jury to make a factual determination whether the witness was an accomplice. (Ibid.) It is well settled that the phrase liable to prosecution in section 1111 means, in effect, properly liable. Any issues of fact determinative of the witnesss factual guilt of the offense must be submitted to the jury. Only when such facts are clear and undisputed may the court determine that the witness is or is not an accomplice as a matter of law. (People v. Rodriguez, supra, 42 Cal.3d at p. 759; accord, People v. Hayes (1999) 21 Cal.4th 1211, 1272; see also People v. Garrison (1989) 47 Cal.3d 746, 772-773.)

b. No Error

The evidence did not support defendants contention that Mr. Hills was an accomplice as a matter of law. No trial witness testified that Mr. Hills aided or promoted defendant in murdering Mr. Ramirez, or that Mr. Hills shared defendants intent to murder Mr. Ramirez. To the contrary, Mr. Hills testified that he happened upon defendant and his victim by chance when leaving Saggys house. Mr. Hills further testified that he tried to prevent the murder by asking defendant repeatedly to give Mr. Ramirez a pass. Mr. Hills testified that he was shocked when defendant shot Mr. Ramirez. Although statements by Mr. Hills during his jailhouse conversation with defendant confirmed that Mr. Hills was present at the murder, nothing said by Mr. Hills during that conversation directly implicated him as defendants accomplice. To the contrary, when Mr. Hills told defendant that the smokerspresumably Bobo and Kevinhad implicated him (threw me up in the shit), defendant responded, You dont have nothin to do with it though.

Mr. Moreno, the only other witness to the shooting to testify, did not implicate Mr. Hills in the murder in either his trial testimony or his pretrial statements to police. When asked if he saw any black men there right before the shooting, Mr. Moreno testified, No. I didnt see anyone. When shown a photograph of Mr. Hills by Detective Laren, Mr. Moreno said that he had never seen Mr. Hills.

For a trier of fact to have concluded that Mr. Hills was an accomplice, it would have had to reject much of Mr. Hillss trial testimony, and conclude that Mr. Moreno was mistaken in failing to identify Mr. Hills. Accordingly, the evidence that Mr. Hills was defendants accomplice was not clear and undisputed, as required to support the conclusion that Mr. Hills was an accomplice as a matter of law. (See People v. Brown (2003) 31 Cal.4th 518, 557 [witnesss testimony that he did not agree to defendants plan to steal wheel rims, though the jury could disbelieve it, supported trial courts conclusion that witness was not accomplice as a matter of law]; People v. Garrison, supra, 47 Cal.3d at p. 772 [witness not an accomplice as a matter of law when witness denied intent to facilitate murder, testified that he did not know defendant was armed and was surprised by the killing].) The trial court had no duty to instruct the jury with CALCRIM No. 335.

Defendant relies primarily on People v. Medina (1974) 41 Cal.App.3d 438 (Medina).[14] In that case, the Court of Appeal concluded that three witnesses who testified against two murder defendants were accomplices as a matter of law. (Id. at pp. 450-451, 464-465.) The court noted that there were some inconsistencies between their [the witnesses] three versions of the facts. (Id. at p. 443.) Contrary to defendants argument, however, the inconsistencies the court referred to were not related to whether the witnesses were accomplices. The jury in Medinawas instructed that the defendants in that case could be convicted on a felony murder theory, with the rape of the two victims as the predicate felonies. (Id. at pp. 450-451.) The testimony of the three witnesses established that they were the defendants accomplices in committing the rapes, and were thus equally subject to prosecution for felony murder even though they denied participating in the murders. (Id. at pp. 443-446, 451.) As the court explained, The evidence . . . that supported the instruction on felony murder with respect to defendants equally supported the same charge against the three immune prosecution witnesses. It showed them to be aiders and abettors, and therefore principals, of any rape committed. (Id. at p. 452.)The evidence against defendant in this case did not similarly implicate Mr. Hills. Accordingly, People v. Medina does not assist defendant.

c. Any Error Was Harmless

Even if the trial court erred in failing to instruct the jury with CALCRIM No. 335, any such error was harmless. A trial courts failure to instruct on the requirement of corroboration is harmless if a review of the entire record reveals sufficient evidence to corroborate the accomplices testimony. (People v. Williams, supra, 43 Cal.4th at pp. 637-638; People v. Frye, supra, 18 Cal.4th at p. 966.) Corroborating evidence must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. . . . . [Citation.] (People v. Bunyard (1988) 45 Cal.3d 1189, 1206.) When identity is an issue in a case, the corroborating evidence need not independently establish the defendants identity as the perpetrator. (People v. Abilez (2007) 41 Cal.4th 472, 506 [the corroborating evidence need not independently establish the identity of the victims assailant].) The corroborating evidence may be entirely circumstantial. [Citations.] The corroborating evidence may be slight and entitled to little consideration when standing alone. [Citations.] Only a portion of the accomplices testimony need be corroborated, and the corroborative evidence need not establish every element of the offense charged. [Citation.] All that is required is that the evidence connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth. [Citation.] (People v. DeJesus (1995) 38 Cal.App.4th 1, 25; see also People v. Williams, supra, 43 Cal.4th at p. 638.)

In this case, there was evidence that defendant and Clever both were members of Varrio Grape, and that defendant was a friend of Clever who was upset by Clevers murder. Such evidence corroborated Mr. Hillss testimony that the murder of Mr. Ramirez was motivated by defendants desire to obtain information about Clevers murder. Evidence that Mr. Moreno identified a photograph of defendant as one of the persons present at the scene corroborated Mr. Hillss testimony that defendant was present at the murder scene, as did defendants own statements in his jailhouse conversation with Mr. Hills. Defendants statement to Mr. Hills referring to a Glock firearm, combined with the testimony from a criminologist that the murder weapon was indeed a Glock firearm, tended to corroborate Mr. Hillss testimony that defendant was the shooter. Accordingly, even if Mr. Hills was an accomplice as matter of law, there was sufficient corroborating evidence to permit the jury to consider his testimony.

Defendant relies on People v. Martinez (1982) 132 Cal.App.3d 119. In that case, the appellate court concluded that there was insufficient corroborating evidence when the testimony of an accomplice identifying the defendant as a robber was supported only by another witness testifying that the defendants complexion was exactly like that of the robber, where that witness also testifiedcontrary to the accomplicethat the robber had a beard. (Id. at p. 133.) Other testimony from police officers related merely to the commission of the offense or the circumstances thereof, and did not connect the defendant to the crime. (Ibid.) In contrast, the corroborating evidence in this case showed defendants motive for the murder, placed defendant at the scene of the crime and supported the identification of defendant as the shooter. (See People v. Abilez, supra, 41 Cal.4th at p. 506 [distinguishing People v. Martinez].)

2. Aiding and Abetting Instruction

The primary theory of liability relied upon by the prosecutor was that defendant was the direct perpetrator of the murder. The prosecutor, however, anticipated that defendant would rely on Mr. Morenos pretrial statements to police to argue to the jury that Saggy was the shooter. Accordingly, the prosecutor requested an instruction that defendant could be liable for the murder on an aiding and abetting theory. The trial court determined that there was sufficient evidence to support the instruction and, over defendants objection, instructed the jury on aiding and abetting liability pursuant to CALCRIM Nos. 400 and 401.

On appeal, defendant argues that the evidence was insufficient to justify the aiding-and-abetting instructions. We need not resolve that contention, however, because we conclude that any error was harmless. (People v. Seaton (2001) 26 Cal.4th 598, 645; see People v. Watson (1956) 46 Cal.2d 818, 836; People v. Guiton (1993) 4 Cal.4th 1116, 1130 (Guiton) [applying Watson standard]; see also People v. Perez (2005) 35 Cal.4th 1219, 1232-1233.)

a. Applicable Principles

In criminal cases, even in the absence of a request, the trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Hovarter (2008) 44 Cal.4th 983, 1021; People v. Abilez, supra, 41 Cal.4th at p. 517.) The trial court has the correlative duty to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues. (People v. Saddler (1979) 24 Cal.3d 671, 681; People v. Armstead (2002) 102 Cal.App.4th 784, 792.) It is error to give an instruction that, although correctly stating a principle of law, is inapplicable to the facts of the case. (People v. Cross (2008) 45 Cal.4th 58, 67; Guiton, supra, 4 Cal.4th at p. 1129.)

California Constitution, article VI, section 13, prohibits a reviewing court from setting aside a judgment due to trial court error unless it finds the error prejudicial. (People v. Chun (2009) 45 Cal.4th 1172, 1201.) In Guiton, supra, 4 Cal.4th 1116, the California Supreme Court held that when a trial court gives a legally correct jury instruction on a theory of liability for which there was inadequate proof, a reviewing court nevertheless should affirm whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. (Id. at p. 1129; see also People v. Perez, supra, 35 Cal.4th at p. 1233; People v. Hughes (2002) 27 Cal.4th 287, 351.) As the court stated in People v. Seaton, supra, 26 Cal.4th 598, when a prosecutor argues two theories to the jury, one of which is factually sufficient and one of which is not, the conviction need not be reversed, because the reviewing court must assume that the jury based its conviction on the theory supported by the evidence. (Id. at p. 645.) Accordingly, such error is harmless unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory. (Guiton, supra, 4 Cal.4th at p. 1130.) In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. (Ibid.; see also People v. Perez, supra, 35 Cal.4th at p. 1233.)

b. Any Error Was Harmless

In this case, the information specially alleged with respect to the murder charge that defendant personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to Mr. Ramirez. ( 12022.53, subdivision (d).) The trial court instructed the jury on the firearm enhancement pursuant to CALCRIM No. 3149, in part, as follows, If you find the defendant guilty of the crime charged in Count I, you must then decide whether the People have proved the additional allegation that the defendant personally and intentionally discharged a firearm during that crime causing death. [] To prove this allegation, the People must prove that: [] 1. The defendant personally discharged a firearm during the commission of that crime; [] 2. The defendant intended to discharge the firearm; [] AND [] 3. The defendants act caused the death of a person. (Italics added.) The jury verdict on the firearm enhancement stated: We further find that the defendant personally and intentionally discharged a firearm, a handgun, which caused great bodily injury or death to OCTAVIANO RAMIREZ within the meaning of Penal Code section 12022.53(d) to be: True. (Italics added.)

Further, defendant was charged in count 2 of the information with possession of a firearm by a felon. ( 12021, subd. (a)(1).) In that respect, the information alleged that defendant did unlawfully own, possess, purchase, receive and have custody and control of a firearm, to wit, handgun . . . . The jury was instructed with respect to count 2 pursuant to CALCRIM No. 2510, in part, as follows: The defendant is charged in Count II with unlawfully possessing a firearm. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant possessed a firearm; [] 2. The defendant knew that he possessed the firearm; [] AND [] 3. The defendant had previously been convicted of a felony. The jury convicted defendant on count 2. The jury thus necessarily found beyond a reasonable doubt that defendant had possessed a firearm.

The only evidence in this case that defendant used or possessed a firearm was the testimony of Tavares Hills that defendant used a handgun to murder Mr. Ramirez. At trial, Mr. Moreno testified that he did not see anyone with a gun at the time of the murder. In his pretrial statements to police, Mr. Moreno stated that Saggy had a gun, but he did not state that defendant had a gun. Accordingly, the jury could not have found true the allegation that defendant personally used a firearm or convicted defendant of possessing a firearm unless the jury concluded that defendant was the shooter, and not merely an aider and abettor. Consequently, the record is clear that the jury did not rely on the aiding and abetting instructions in reaching its verdict. Any error by the trial court in giving those instructions was harmless.

C. Gang Enhancements

Section 186.22, subdivision (b)(1) provides for a sentence enhancement for any 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[.] ( 186.22, subd. (b)(1); see People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) Defendant contends on appeal that the gang enhancement must be reversed because there was insufficient evidence that (1) Varrio Grapes primary activities qualified the gang as a criminal street gang, as defined in section 186.22, subdivision (f); and (2) defendants crimes were committed for the benefit of the gang.

In determining the sufficiency of the evidence, the court must review the whole 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 valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Kelly (2007) 42 Cal.4th 763, 787-788.) We presume in support of the judgment the existence of every fact that reasonably could be deduced from the evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) We will reverse for insufficient evidence only if upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Manriquez (2005) 37 Cal.4th 547, 577.) This standard of review applies to gang enhancement findings. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508; People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)

1. Primary Activities

Section 186.22, subdivision (f) defines criminal street gang, as relevant here, to mean any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [certain enumerated] criminal acts . . . . ( 186.22, subd. (f); see People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups chief or principal occupations. [Citation.] (Sengpadychith, supra, 26 Cal.4th at p. 323.) 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. (Id. atp. 324.) The gangs primary activities also may be proved by expert testimony where the gang experts opinions are based on conversations with gang members (including the defendant), the experts own experience investigating gang crime, and information from colleagues in [the experts] own police department and other law enforcement agencies. (Id. at p. 324; see also People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.)

We conclude that, under the applicable standard of review, there was sufficient evidence in this case of Varrio Grapes primary activities. Detective Stevens testified that he had worked in the LAPD southeast division for 11 years, and in the gang unit beginning in 1999. He was assigned to east side Hispanic gangs, including Varrio Grape. His assignment was to investigate, document and identify gangs, gang trends and persons within gangs. He had testified in Superior Court as an expert on Varrio Grape approximately a dozen times before. Detective Stevenss testimony demonstrated his familiarity with the history, constituency and culture of Varrio Grape.

Detective Stevens explained that the reason Varrio Grape split off from Varrio Primera was because Varrio Grape had associated with Grape Street Crips in conducting its narcotics trafficking business. When asked to identify the gangs primary activities, Detective Stevens testified, Runs the gauntlet. Ive arrested them for as little as a $5 sack of marijuana. Investigated for robberies, graffiti, vandalism, narcotics use, weapons violations, possession of firearms, murder, conspiracy to commit murder, kidnapping, kidnap for ransom, homicide. I think Ive already said that. Street robberies, assault with a deadly weapon. Detective Stevens also testified, on cross-examination, that kidnapping for ransom was a borderline primary activity of the gang because it happen[ed] often and involved a lot of money. Defendant did not object at trial to either Detective Stevenss qualifications as an expert or the foundation for his testimony.

Section 186.22, subdivision (f) requires proof only that one of [the gangs] primary activities [is] the commission of one or more of the crimes enumerated in subdivision (e). (Italics added.) Among the criminal activities enumerated in section 186.22, subdivisions (e) and (f) are narcotics trafficking and kidnapping. ( 186.22, subds. (e)(4), (15).) Detective Stevens testified that Varrio Grape had its genesis as a separate gang in narcotics trafficking, and indicated when asked about the gangs primary activities that he had arrested and investigated members of the gang for narcotics offenses. Detective Stevens also testified that he had investigated Varrio Grape members for kidnapping, and on cross-examination he testified that kidnapping by Varrio Grape members was a borderline primary activity that happen[ed] often. At a minimum, the testimony with respect to those two crimes was sufficient to permit a reasonably jury to conclude that members of Varrio Grape consistently and repeatedly have committed criminal activity listed in the gang statute. (Sengpadychith, supra, 26 Cal.4th at p. 324; see People v. Duran, supra, 97 Cal.App.4th at p. 1465 [expert testimony that gang members often engaged in specified criminal activities].)

It is true, as defendant points out, that when asked by the prosecutor to describe the gangs primary activities, Detective Stevens phrased his answer in terms of crimes for which he had arrested or investigated Varrio Grape members, rather than in terms of crimes that constituted gangs primary activities. But we do not believe that the detectives turn of phrase is dispositive. Defendant did not object at trial that Detective Stevenss answer was not responsive to the prosecutors question regarding the gangs primary activities. Considering the detectives testimony in context, and notwithstanding the detectives later admission that murder was not a primary activity of the gang, a reasonable jury could have understood Detective Stevenss testimony to refer to crimes that were primary activitiesof the gang, for which the detective had arrested or investigated Varrio Grape members.

Defendant relies on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.). In that case, the appellate court reversed the juvenile courts true finding on a gang enhancement on the ground that the gang experts testimony was insufficient to support the primary activities element. The expert had testified, I know theyve [the gang] 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.) The expert did not explain how he knew about the offenses (id. at p. 612), and on cross-examination, he conceded that the vast majority of cases relating to the gang involved graffiti, but failed to specify whether the incidents involved misdemeanor or felony vandalism. (Ibid.) The expert in Alexander L. thus failed to establish the foundation for his testimony, failed to testify that the crimes he cited constituted the gangs primary activities, equivocated on direct examination and contradicted himself on cross-examination. (Id. at pp. 611-612; see People v. Margarejo (2008) 162 Cal.App.4th 102, 107 [distinguishing Alexander L.].)

Here, in contrast, Detective Stevens testified to his training and experience as a gang expert. As discussed, he also testified regarding Varrio Grapes primary activities. His years dealing with the gang, his investigations of the gangs crimes, his personal conversations with gang members (including a dozen contacts with defendant), and his reviews of field identification cards and other reports sufficed to establish the foundation for his testimony. (See People v. Martinez(2008) 158 Cal.App.4th 1324, 1330; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.) Accordingly, the decision in Alexander L., supra, 149 Cal.App.4th 605, does not alter our conclusion.

Defendant also relies on In re Nathaniel C. (1991) 228 Cal.App.3d 990. In that case the gang enhancement was reversed because, inter alia, an expert on gangs in South San Francisco testified regarding the criminal activities of gangs in his own area, but the gang at issue in that case was from a different areaSan Bruno. (Id. at pp. 1004-1005.) That is not the case here.

Finally, defendant relies on People v. Perez (2004) 118 Cal.App.4th 151 (Perez). In that case, the defendant was charged, inter alia, with the gang-related attempted murder of an Asian teenager. (Id. at p. 154.) The prosecutor presented no expert testimony to establish the gangs primary activities. (Id. at p. 160.) Instead, the prosecution relied on evidence of the gangs history of racial hatred and violent acts toward Asians, including the beating of an Asian child some years earlier and the shootings of Asian men in February 2002, as well as the instant offenses . . . . (Ibid.) The appellate court held this evidence was insufficient, stating, Even if we assume that the . . . gang was responsible for the shootings of Asians on February 16 and 18, as well as the shooting of [the victim in the case before the court], such evidence of the retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier, was insufficient to establish that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. [Citation.] (Ibid.)

Unlike Perez, supra, 118 Cal.App.4th 151, there was expert testimony in this case sufficient to establish Varrio Grapes primary activities. We conclude the evidence was sufficient to establish that Varrio Grape was a criminal street gang within the meaning of section 186.22, subdivisions (b)(1) and (f).

2. Benefit of the Gang

Defendant argues that the prosecution failed to prove that defendant murdered Mr. Ramirez for the benefit of Varrio Grape because defendant acted alone and for himself, not necessarily to benefit his gang. Although there was evidence to support the inference that defendant acted alone and for himself, there was also substantial evidence that defendant murdered Mr. Ramirez with the specific intent to benefit Varrio Grape. (See People v. Villalobos, supra, 145 Cal.App.4th at p. 322; People v. Hill (2006) 142 Cal.App.4th 770, 774; see also People v. Romero (2008) 44 Cal.4th 386, 412-413; People v. Gardeley, supra, 14 Cal.4th at pp. 612-613; People v. Ferraez (2003) 112 Cal.App.4th 925, 931.)

There was substantial (and undisputed) evidence that both defendant and Clever were members of Varrio Grape. Detective Stevens testified, in effect, that respect was a central value in gang culture because it directly related to the gangs ability to control its territory and make money. The murder of a gang member in the gangs own territorysuch as the murder of Clever in this casewould be considered a grave show of disrespect to the gang and would threaten the gangs ability to control its territory. Detective Stevens would expect that the gangand particularly those closest to the murdered gang memberto retaliate against the person who committed the murder or someone close to that person. Detective Stevens testified that the murder of a person who had information about the gang members deathsuch as the murder of Mr. Ramirez in this casewould benefit the gang because exacting revenge would assist the gang in controlling its turf. Further, based on the testimony of Detective Stevens and the evidence that defendantmurdered Mr. Ramirez because he refused to disclose information about Clevers murder, the jury reasonably could infer that the murder of Mr. Ramirez would benefit Varrio Grape because such a murder would intimidate members of the community and send the message that failure to cooperate with the gang would be dealt with harshly. Accordingly, sufficient evidence supported the jurys conclusion that defendant committed his crimes for the benefit of the gang.

Defendant relies on In re Frank S. (2006) 141 Cal.App.4th 1192. In that case, the police conducted a traffic stop of a minor riding a bicycle, and discovered that the minor possessed a knife. The minor admitted gang membership. The juvenile court sustained a petition alleging that the minor carried a concealed dirk or dagger, and found true a gang enhancement allegation. (Id. at pp. 1194-1195.) The only evidence offered to support the gang enhancement was the fact of the minors gang affiliation, and the testimony of a gang expert that a gang member would use the knife for protection from rival gang members and to assault rival gangs. When asked how the minors possession of the knife benefited the [minors gang], [the expert] responded it helps provide them protection should they be assaulted. (Id. at pp. 1195-1196.) The appellate court reversed the gang enhancement, holding such weak inferences and hypotheticals insufficient to establish the minor possessed the knife for the benefit of the gang. (Id. at p. 1199.)

In re Frank S., supra, 141 Cal.App.4th 1192,bears no resemblance to the facts in this case. Here, substantial evidencenot mere speculationsupported the inference that defendant committed his crimes for the benefit of his gang. (See People v. Martinez, supra, 158 Cal.App.4th at p. 1333.) Defendants challenge to the sufficiency of the evidence therefore fails.

D. Restitution Orders

The trial court ordered defendant to pay $5,000 in restitution to the State Victims Compensation Board[15]and $3,434 plus interest to Mr. Ramirezs widow for funeral costs. Defendant argues that the restitution orders must be reversed because (1) defendant was not given notice prior to the sentencing hearing regarding the amounts of the orders; and (2) there was insufficient evidence to support the amount of restitution ordered. We agree that defendant was not afforded a meaningful opportunity to be heard on the nature and amount of the restitution ordered, and that the restitution orders therefore must be reversed.

1. Additional Background

Prior to the sentencing hearing, the prosecution submitted a written sentencing memorandum. The memorandum did not mention victim restitution. The probation report also did not discuss victim restitution; the probation officer indicated that he had been unable to contact Mr. Ramirezs family. The only indication in the probation report that restitution would be sought was on a form attached to the report, in which a box is checked indicating that defendant should be ordered to pay restitution in an amount and in the manner prescribed by the Probation Officer, subject to a hearing if requested.

The subject of restitution was not raised at the sentencing hearing until near the end of the proceeding. At that point, the prosecutor stated, We submitted two restitution orders. Were asking the court to award the Victim Compensation [Board] $5,000 plus 10-percent interest from the date of loss. We have an order that we prepared for the court. [] And we also havewere requesting an order be entered for restitution to . . . the victims wife, in the amount of $3,434.03 for out of pocket funeral expenses plus 10 percent from the date of loss. The proposed orders to which the prosecutor referred are not part of the record on appeal. There is no indication in the record that the proposed orders were provided to defendant either at or prior to the sentencing hearing. There is also no indication in the record that any documentary or testimonial evidence was submitted to the trial court or provided to defendant to establish the amount of the loss, or to establish that the California Victim Compensation Program had paid money from the Restitution Fund to Mr. Ramirezs widow. No such evidence appears in the record.

The trial court stated it would order the restitution requested, but noted that defendant was unlikely to pay. Defense counsel stated, For the record, I would object to those orders. I wasnt provided with the documentation of that, but [s