P. v. Vicente

Filed 9/22/08 P. v. Vicente CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted codefendants Isaac Vicente and Vincent Juan Tomas of one count of discharging a firearm at an occupied motor vehicle and found, as an enhancement, that the crime was committed for the benefit of a criminal street gang. (Pen. Code, 246, 186.22, subd. (b)(1).)^[1]

Sentenced each to a prison term of 15 years to life, the two defendants appeal and join in each others arguments to the extent they help. ( 186.22, subd. (b)(4)(B).)

Vicente raises a litany of issues, which encompass broadly: group bias in jury selection; evidentiary and instructional deficiencies concerning the offense and the enhancement; and a jurors misconduct. Tomas adds a claim about another juror and contends his restitution fines are excessive.

We find no prejudicial error and affirm.

Background

The Offense

The offense involved a daylight shooting in the parking lot of a Sidewalk Pizza restaurant in Sacramento on March 2, 2006, around 5:30 p.m. There were two witnesses: J.J., a Sidewalk Pizza customer who had momentarily stepped outside the restaurant for a cigarette; and R.W., who was working as the restaurants cashier and saw the event unfold out the front window.

That unfolding took place as follows. Near where J.J. was standing outside the restaurant, a white Camaro, with a nonvisible, flipped-down rear license plate, had parked in backwards, i.e., facing into the parking lot. The passenger in the Camaro, later identified as Tomas, had just gotten out of the car when a white Ford, driven by a Hispanic male, drove slowly by the Camaro. The driver of the Ford remarked to Tomas, Whats up, and displayed a large handgun. The two men argued.

As the Ford drove through the parking lot, Tomas picked up rocks and threw them at the car. Tomas continued walking alongside the Ford and yelling at its driver (through the passenger side window), all the way to the parking lot exit where the Ford stopped.

While Tomas was arguing with the Fords driver, a man, later identified as Vicente (who is Tomass brother), emerged from the drivers seat of the Camaro and retrieved a handgun from the trunk. Crouching down, Vicente snuck up behind the Fords rear passenger side and fired two or three shots into the car. J.J. saw Vicente pull the trigger while just outside the Ford, and he heard the gunshots. R.W. said that Vicente reached into the passenger window of the Ford (to about wrist level) with a gun in his hand, and he heard two to three gunshots. During the shooting, Tomas was one or two feet right behind Vicente.

The Ford turned left out of the parking lot, and drove away as if nothing had happened. Tomas and Vicente ran back to the Camaro, taking off in the same direction as the Ford. Before leaving the parking lot, however, the Camaro stopped, and Tomas flopped out of the passenger side and grabbed things off the ground at the shooting site.

R.W. called 911. Officers apprehended defendants a short time later in the vicinity. The defendants and their car were then identified.

A criminalist testified that gunshot residue found on Vicente indicated he either fired a weapon or was less than two or three feet in front of a weapon fired at him. Gunshot residue on Tomas indicated he either fired a weapon, handled a fired weapon or fired ammunition, or was in the vicinity of a firearm that was fired.

The Gang Enhancement

A gang expert, Detective R., testified that Sureos and Norteos are rival Hispanic street gangs. Sureos is an umbrella term, and a particular group of Sureos that identifies with some geographical area is considered a subset. Sureos identify with the color blue and the numbers 13 and three.

About a month before the present offense, Vicente told Detective R. that he was a Sureo. Tomas told a probation officer that he too was a Sureo and affiliated with a Sureos gang, the Sur Town 916. Neither officer was aware of the Sur Town 916 subset. Support for these statements from defendants and for Detective R.s opinion that the defendants were Sureos street gang members came from tattoos, monikers (gang nicknames), and photos, as well as hairstyles and clothing on the night of the offense and evidence showing that defendants had written at least a portion of SUR in large letters in their holding cell during the present trial.

Detective R. opined that the primary activities of the Sureos street gang include, among its more serious crimes, felonious assault. He detailed the facts of two previous shootings of pedestrians done by two different Sureo gang members.

Detective R. also explained the importance of respect in gang culture. He opined that the present offense had the potential to benefit the defendants gang and their status within it.

A defense gang expert testified that Norteos and Sureos are identities, rather than gangs, although specific gangs may operate under those identities.

We will set forth additional facts as appropriate in our discussion of particular issues.

Discussion

1. Group Bias--Jury Selection

Defendants contend they were denied their state constitutional right to a representative jury and their federal constitutional right to equal protection when the prosecutor peremptorily challenged three apparent Hispanic jury panel members, and the trial court concluded that defendants had not made a prima facie showing of group bias. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 86 [90 L.Ed.2d 69] (Batson).) We disagree with defendants contention.

Under Wheeler and Batson, the use of peremptory challenges to remove a prospective juror because of that jurors race or ethnicity is unconstitutional discrimination. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at pp. 86-87.)

To establish a Wheeler/Batson claim, three steps are involved. First, a defendant must make a prima facie case by showing that the totality of the relevant facts gives rise to a discriminatory inference. (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129], quoting Batson, supra, 476 U.S. at p. 94.) If that is done, the People must then show race-neutral reasons for the challenge. (Johnson, supra, at p. 168.) And if that is done, the trial court must then decide whether purposeful racial discrimination has been proved. (Ibid.)

Here, the trial court determined that defendants had not cleared the first hurdle--they had not made a prima facie case. The trial courts determination that no prima facie showing of group bias has been made is subject to review to determine whether it is supported by substantial evidence. [Citation.] We examine the record of the voir dire and accord particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand. (People v. Jenkins (2000) 22 Cal.4th 900, 993-994, fn. omitted.)

Three prospective jurors with Hispanic surnames are at issue: Mr. C, Mr. E, and Ms. G, who were excused in that order.

Mr. C grew up in Vallejo around different gang members. His brothers were affiliated with neighborhood area-like gangs. He was not involved in either side, and he said his experience would not affect his judgment in this case.

Mr. E was an insurance adjuster who had previously worked as a bilingual assistant for a school district. Mr. E personally knew Vicentes counsel, Mr. Enriquez, who was a friend of Mr. Es parents. Mr. E and Mr. Enriquez had been at social functions together. Mr. E stated he could be fair to all sides; knowing Mr. Enriquez shouldnt affect his judgment, and he did not think he would favor Mr. Enriquezs side.

Ms. G was not individually questioned by the trial court or by any party. The prospective jurors, however, had turned in questionnaires which are not in the record.

After the prosecutor excused Ms. G, defendants made their Wheeler motion, arguing that the prosecutor was using peremptory challenges to excuse all the Hispanics. The prosecutor immediately responded that Ms. G was White. The trial court noted that Ms. G had blonde hair and a fair complexion, and that she did not appear to be obviously Hispanic.

The record supports the trial courts determination that defendants failed to make a prima facie showing. The prosecutor certainly could have challenged Mr. C and Mr. E for legitimate reasons. (People v. Farnam (2002) 28 Cal.4th 107, 135.) Mr. Cs brothers were affiliated with a gang, and Mr. E was personally friendly with Vicentes counsel. That leaves Ms. G: blonde-haired, fair-complected Ms. G, whose first name was Shari and whose surname the trial court described as Spanish-sounding. (See People v. Bonilla (2007) 41 Cal.4th 313, 344 [Where a prosecutor is unaware of a prospective jurors group status, it logically follows he cannot have discriminated on the basis of that status].) The defendants described themselves as Hispanic/Mexican. On this record, we cannot say the trial courts determination of no prima facie showing lacks substantial evidence.

Tomas additionally alleges, in passing, that a comparative analysis--i.e., comparing the voir dire responses of these three excused prospective jurors with those of the other prospective jurors--would support the group bias claim. This allegation runs into a thicket of procedural roadblocks. Defendants did not assert this point in the trial court. They have asserted this point only summarily on appeal, without any argument. And our state Supreme Court has concluded that a comparative analysis is inappropriate where a prima facie showing has not been made, because, without any reasons having been posited for the peremptory challenges, there is no fit subject for comparison. (People v. Bell (2007) 40 Cal.4th 582, 601.)

2. Evidentiary Sufficiency Regarding

Tomas Aiding and Abetting the Offense

Tomas contends there is insufficient evidence that he aided and abetted Vicentes shooting into the Ford. We disagree.

A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)

Tomas contends there is no evidence that he did anything with the knowledge or intent that Vicente was going to shoot into the Ford. The two defendants actions, Tomas maintains, were wholly independent of one another and not pursuant to any common plan. We do not share Tomass view of the evidence in the context of the evidentiary sufficiency rule we must apply.

In considering the sufficiency of the evidence in a criminal appeal, we review the evidence in the light most favorable to the judgment to determine whether it constitutes substantial evidence--that is, evidence which is reasonable, credible, and of solid value, including reasonable inferences therefrom--such that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Gurule (2002) 28 Cal.4th 557, 630; People v. Alcala (1984) 36 Cal.3d 604, 623.)

Vicente and Tomas were not only brothers, they were both members of the Sureos street gang. The argument between Tomas and the Ford driver, and that drivers handgun display, ensued so quickly after Vicente had backed the Camaro, with its nonvisible license plate, into the parking spot, that jurors reasonably could have inferred something sinister was afoot just prior to the parking lot drama. Defendants were each attired in gang-related clothing.

Armed only with rocks and anger, Tomas continued to hassle the handgun-armed Ford driver across the length of the parking lot. From this, the jurors reasonably could have inferred that while Tomas did not have a gun up his sleeve, he had the next best thing. And sure enough, as Tomas hurled rocks and words at the Ford driver, Vicente retrieved a gun from the back of the Camaro, snuck up on the Ford on the side where Tomas was standing, and unloaded two or three shots into the Ford. Tomas was but one or two feet directly behind Vicente at this point.

After the Ford left the parking lot, Tomas and Vicente ran back to the Camaro and took off after the Ford, but not before stopping briefly at the shooting site so Tomas could grab items off the ground. A gunshot residue test showed that Tomas may have handled a fired weapon or fired ammunition.

Detective R. opined that these actions by two Sureos gang members could benefit the gang and their status within it.

In considering, in light of this evidence, the aiding and abetting factors of presence at the scene of the crime, companionship, and conduct before and after the offense (Campbell, supra, 25 Cal.App.4th at p. 409), we conclude there was sufficient evidence that Tomas knew Vicente might shoot, intended that he do so, and encouraged or instigated the shooting. Accordingly, there is sufficient evidence that Tomas aided and abetted Vicentes shooting.

3. Evidentiary and Instructional Issues

Regarding the Gang Enhancement

Defendants raise several contentions alleging the evidence and the instructions are insufficient regarding the gang enhancement. Pursuant to the gang enhancement statute ( 186.22), this enhancement applies when a felony is committed on behalf of a criminal street gang. (Id., subd. (b)(1).) The jury found that defendants committed the felony offense of shooting into the occupied vehicle ( 246) on behalf of the Sureos, a criminal street gang.

A criminal street gang is defined in section 186.22, as relevant here, in terms of the groups primary activities and its members pattern of criminal gang activity. ( 186.22, subds. (f), (e), respectively, italics added.) And the concept of on behalf of a criminal street gang involves whether the charged offense was done for the benefit of the gang with the specific intent to promote criminal conduct by gang members. ( 186.22, subd. (b)(1), italics added.) Defendants contentions track these italicized elements. So will our analysis. We start with primary activities.

Primary Activities

Defendants contend there is insufficient evidence to establish this element of criminal street gang in the context of the trial courts instruction on that element. We disagree.

Specifically, section 186.22, subdivision (f), defines criminal street gang as: (1) any ongoing, formal or informal group of at least three persons with some identifying commonality; (2) having as one of its primary activities the commission of one or more of . . . [currently 28] criminal acts [offenses] enumerated in subdivision (e); and (3) whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. (As we explain later, this pattern element also uses the criminal offenses enumerated in subdivision (e).)

Among the 28 (primary activity) offenses enumerated in subdivision (e) are: assault with a deadly weapon ( 245); discharging a firearm from a motor vehicle ( 12034); and shooting at an occupied motor vehicle ( 246). (See 186.22, subd. (e)(1), (e)(6), (e)(5), respectively.)

The trial court instructed the jury, as to the element of primary activit[ies], that a criminal street gang in the present case must have as one or more of its primary activities, the commission of assault with a firearm or discharging or permitting the discharge of a firearm from a motor vehicle.

The evidence of primary activities came in three ways. First, Detective R. detailed the facts of two prior offenses, one that occurred on September 7, 2003, and the other on December 3, 2003. In the September 7 offense, Herardo Rodriguez, a validated Sureos gang member, fired four or five shots from a car at an individual who was walking near the Howe Park area claimed by a Sureos subset. The individual had apparently replied unfavorably to a question from a car occupant, and this cost him a bullet in the arm. As for the December 3 offense, a verbal confrontation ensued between a couple of individuals walking on a street in South Sacramento and a car containing numerous occupants, including Pancho Bettencourt, a validated Sureos gang member. Bettencourt fired numerous shots at the individuals, injuring one of them.

Second, Detective R. opined that the primary activities of the Sureos street gang included vandalism and theft and possession of drugs up to . . . car theft, robbery, felonious assault and murder. (Italics added.) (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith) [expert testimony may be used to establish the primary activities element].)

And third, there is the present offense of shooting at an occupied motor vehicle. ( 186.22, subd. (e)(5), 246; Sengpadychith, supra, 26 Cal.4th at p. 323 [evidence of past or present criminal acts listed in 186.22, subd. (e), is admissible to establish the primary activities element].)

Defendants contend this evidence is insufficient to establish the element of primary activities because: (1) Detective R.s testimony regarding the two prior offenses concerned the element of pattern of criminal gang activity rather than the element of primary activities; (2) Detective R.s opinion stated felonious assault as a primary activity, rather than any primary activity offenses enumerated in section 186.22, subdivision (e), and rather than the two offenses specified in the trial courts instruction on primary activities (i.e., firearm assault or firearm discharge from vehicle); and (3) the instruction on primary activities precluded the jury from considering the present offense as a primary activity. We disagree with each of these arguments.

Detective R.s testimony about the two prior offenses--both of which involved Sureos shooting from a car and injuring their victims--constituted sufficient evidence of both assault with a firearm and discharge of a firearm from a vehicle, in line with the trial courts instruction on the element of primary activities.

Defendants argue, though, that the evidence of these two prior offenses was presented in the context of pattern of criminal gang activity rather than in the context of primary activities. Defendants have sliced the elements of primary activities and pattern of criminal gang activity too finely here for three reasons. First, both elements here rely on the same prior (predicate) offenses; the record does not distinguish between these two elements in this way. (See  186.22, subds. (e)(1), (e)(5), (e)(6) & (f).) Second, under section 186.22, primary activities is defined as involving the commission of one or more of 28 (predicate) offenses enumerated in subdivision (e), while pattern of criminal gang activity is defined as involving the commission of two or more of these 28 (predicate) offenses (subdivision (e) enumerates an additional five offenses available for the pattern element). (See 186.22, subds. (f), (e).) And third, given this close statutory relationship between these two elements, as well as common sense, a criminal gangs primary activity will also generally encompass its pattern of criminal gang activity. (See 186.22, subds. (a)(1), (a)(5), (a)(6), (e), (f).)

As for their second point, defendants question Detective R.s opinion of felonious assault as a primary activity of the Sureos street gang. They note that felonious assault is not an offense enumerated in section 186.22, subdivision (e), as a primary activities offense, nor an offense listed within the trial courts instruction on the primary activities element here (i.e., the offenses of assault with a firearm and discharge of a firearm from a car). However, jurors reasonably could have evaluated Detective R.s opinion on felonious assault in light of the detectives testimony detailing the two prior Sureo shooting offenses, which were offenses enumerated in subdivision (e) and within the trial courts instruction on the primary activities element (i.e., the offenses of assault with a firearm ( 245) and firearm discharge from a vehicle ( 12034)). ( 186.22, subd. (e)(6).)

Defendants counter, however, that assault with a firearm, which, as noted, is one of the two offenses listed in the trial courts instruction on primary activity offenses, is not enumerated as a primary activity offense in section 186.22, subdivision (e). (See 186.22, subd. (f).) While assault with a firearm may not be specifically enumerated in the statute, [a]ssault with a deadly weapon is, and assault with a firearm is certainly assault with a deadly weapon in this context. (See 186.22, subd. (e)(1), 245, subd. (a)(1), (a)(2); People v. Maldonado (2005) 134 Cal.App.4th 627, 635 [assault with a deadly weapon includes assault with a firearm for purposes of 186.22, subd. (e)(1)].)

That leaves defendants third point. Defendants assert that the trial courts instruction on primary activity offenses (limited to firearm assault and firearm discharge from a vehicle) precluded the jury from considering the present offense (shooting at an occupied vehicle, 246) as a primary activity. But the jury reasonably could have deemed the current offense to also be an assault with a firearm (i.e., within the trial courts instruction on primary activities, and within the relevant enumerated statutory offense of assault with a deadly weapon, 186.22, subd. (e)(1)). In fact, the trial court additionally instructed the jury on the element of primary activities that [i]f you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the groups primary activities was commission of that crime[.] (Italics added.)

We conclude there is sufficient evidence of the element of primary activities in the context of the trial courts instruction on that element. In addition to the evidence of primary activities involving the two prior offenses, there is Detective R.s supported expert opinion on primary activities as well as the current offense of shooting at an occupied vehicle.

Our resolution of this issue also dispenses with the following related argument from defendants: the jury must have failed to follow the trial courts instruction on primary activities because the jury found this element true notwithstanding the insufficiency of the evidence to support it.

Pattern of Criminal Gang Activity

Defendants raise two contentions as to this element, one evidentiary and the other instructional. We disagree with both.

First, the evidentiary claim. Defendants claim that Detective R.s testimony detailing the two prior offenses involving Sureo shootings is insufficient because Detective R. stated that the two Sureos involved (Rodriguez and Bettencourt) were both convicted of various offenses. Defendants explain that if the two Sureos were convicted of something, any proof less than what the convictions were for necessarily fails to establish a predicate offense. We are unpersuaded.

A pattern of criminal gang activity does not require convictions because the statutory definition of this phrase includes the commission of, attempted commission of, or conviction of the offenses. ( 186.22, subd. (e).) A similar issue involving predicate offenses was involved in In re I.M. (2005) 125 Cal.App.4th 1195. There, the court concluded that beingprosecuted [for the predicate offense] permits the conclusion that there was significant evidence that [the gang member] had in fact committed the offense. (Id. at p. 1208, italics added.) If being prosecuted constitutes sufficient evidence of commission, being convicted of various offenses certainly does too.

Now we turn to defendants instructional claim. They contend that the trial courts limiting instruction on considering the evidence of gang activity precluded the jury from considering the evidence of the two prior offenses involving the Sureo shootings on the element of a pattern of criminal gang activity. This argument is too clever by half.

The instruction at issue told the jurors that they could consider evidence of gang activity, among other limited purposes, when you consider the facts and information relied on by an expert witness in reaching his opinion. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.

Defendants maintain the jury was not authorized under [this] instruction to find a pattern of criminal gang activity based on [Detective R.s] testimony concerning the two predicate offenses because the evidence was not to be considered for that purpose. It was only to be considered as it bore on [R.s] opinion or for other limited purposes not applicable here.

As defendants note, Detective R. did not opine as an expert on the pattern of criminal gang activity. Nor is this element all that amenable to expert testimony. ( 186.22, subd. (e).) Instead, Detective R. simply tallied the offenses that prosaically added up to such a pattern. The evaluation of an experts opinion, then, was not at issue when the jury considered Detective R.s nonexpert testimony concerning this pattern. Consequently, the instruction, read in a manner that is as technical as the manner in which the defendants are reading it, was inapplicable. Moreover, the instruction also recognized, obliquely, that the charged gang enhancement would have to involve proof supplied by gang activity evidence, by stating that such evidence could be considered in deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement charged. And, fundamentally, how could the gang enhancement be proved other than with evidence of gang activity?

More specifically, the jury was also instructed fully on what constitutes a pattern of criminal gang activity, including the commission of two or more firearm assaults and/or firearm discharges from a vehicle by gang member(s), the very evidence Detective R. provided for such a pattern. In any event, as we discussed in the preceding section of this opinion, Detective R.s testimony about the two (predicate) Sureo shootings was admissible in the context of his expert opinion regarding the primary activities of the Sureos street gang, and the evidence of primary activities and pattern of criminal gang activity are inextricably intertwined here.

Our resolution of this issue also dispenses with the following related argument from defendants: the jury must have failed to follow the trial courts instruction on the limited purposes of gang evidence because the jury found a pattern of criminal gang activity notwithstanding these limitations.

Benefit of and Specific Intent to Further Gang

Defendants claim there is insufficient evidence that the shooting was committed for the benefit of a criminal street gang and with the specific intent to promote or further any criminal conduct by gang members, as required by the gang enhancement statute. ( 186.22, subd. (b)(1).) Again, we disagree.

Detective R. opined that the shooting by defendants benefitted the Sureos gang by instilling fear and respect in the public, and had the potential to enhance the status of defendants within the gang. The detective had several reasons for this opinion: the public nature of the crime, involving a shooting, could be witnessed by numerous people; defendants willingness to confront an armed individual rather than try to avoid the confrontation; and the fact the victim did not report the shooting, all of which are characteristic of gang behavior.

Defendants acknowledge Detective R.s opinion, but argue that an experts testimony alone [is] not . . . sufficient to find the . . . offense was gang related. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931; In re Frank S. (2006) 141 Cal.App.4th 1192, 1198-1199.) Defendants maintain that gang membership was strictly coincidental here: Vicente merely acted spontaneously after the Ford driver brandished a gun at Vicentes brother, Tomas.

That may be one way of viewing the evidence. But it is certainly not the only way. And it was the jurys call on what the evidence showed, not our call. Defendants own argument concedes the strength of Detective R.s opinion and of the evidence of defendants gang membership. In addition, the defendants sported gang-style haircuts and wore gang-related clothing during the commission of the crime (Tomas was wearing a blue belt while Vicente was attired in an Oakland Raiders sweatshirt, both emblematic of the Sureos street gang). The incident, moreover, occurred in a manner that did not suggest spontaneity, but instead a coordinated response to an affront that may have begun prior to the parking lot activity. The defendants Camaro was parked facing forward with its rear license plate flipped so it could not be seen by the Sidewalk Pizza patrons. Unarmed himself, Tomas continued to hassle and essentially attack the armed victim, while Vicente retrieved the gun from the Camaro, snuck up on the Ford, and fired multiple shots into the Ford. And defendants had the presence of mind to apparently retrieve the spent casings from the shooting site.

4. Evidentiary Sufficiency Regarding Firearm

Defendants contend the evidence is insufficient that the instrument Vicente had was a firearm. We disagree.

Both of the witnesses to the shooting, J.J. and R.W., testified that Vicente had a handgun. J.J. saw Vicente pull the trigger just outside the Ford, and he heard the gunshots. J.J. did not see any flashes, but did notice the gun kick back two or three times. R.W. saw Vicente reach into the passenger window of the Ford (to about wrist level) with a gun in his hand, and heard two or three gunshots. A criminalist testified that a gunshot residue test was consistent with Vicente having fired a gun, and Tomas flopped out of the Camaro on its way out of the parking lot to grab items off the ground at the shooting site.

Defendants rely on the improbability of Vicente having missed the driver, and relatedly on the criminalists additional testimony that if Vicente had stuck his hand in a car window as R.W. testified and a bullet was fired by a person inside the car that passed very close to Vicentes hand, that act could possibly account for the gunshot residue on Vicentes hand. One may equally wonder from defendants theorizing about the improbability of the driver missing Vicente. And who is to say that Vicente did miss? But more importantly, defendants argument turns the evidentiary sufficiency rule on its head: we are to review the evidence in the light most favorable to the judgment, not in the light least favorable.

5. Vicentes Extrajudicial Statement That He Was a Sureo

Defendants contend the trial court erred in failing to instruct the jury on its own motion (1) on the definition of an admission; (2) that Vicentes oral admission that he was a Sureo must be viewed with caution; and (3) that the corpus delicti of the gang enhancement (i.e., the actual criminal act) must be proved independent of the admission. Additionally, Vicente contends (4) this extrajudicial oral admission was improperly admitted into evidence because it was elicited without any Miranda warning.^[2] We find no prejudicial error.

These issues arose as follows. Outside the jurys presence, Detective R. testified at an evidentiary hearing that he booked Vicente about a month before the present shooting on an unrelated matter, that he broached the subject of gang affiliation, and that Vicente admitted he was a Sureo. In the jurys presence, Detective R. testified at trial that on February 3, 2006, Vicente admitted to him that Vicente was a Sureo.

Preliminarily, we note three procedural hurdles to defendants contentions. First, both defendants at least implicitly refused the trial courts invitation to give the instruction that included the principle of viewing extrajudicial oral statements with caution; this raises the spectre of defense-invited error. (See CALCRIM No. 358.) Second, the corpus delicti rule refers to the body or elements of a crime and is therefore generally inapplicable to enhancements. (People v. Shoemake (1993) 16 Cal.App.4th 243, 254-255.) And third, a booking officer generally may ask for gang affiliation information for purposes of jail safety, without running afoul of Miranda and evidentiary exclusion. (People v. Morris (1987) 192 Cal.App.3d 380, 389-390.) (Defendants claim that Detective R. went beyond this booking exception to which he testified, by also engaging Vicente, in the detectives words, in a general conversation that gang investigators commonly engage in with known or suspected gang members in order to gain intelligence and information about street gang lifestyle, ways of life, trends, crime patterns[,] if you will.)

But let us assume for the sake of argument that defendants can jump all of these procedural hurdles. And let us further apply the most defense-favorable standard of prejudice available here: the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705], based on the alleged constitutional violation involving Miranda. We would still not reverse.

This is because the trial court instructed the jury that Vicentes extrajudicial statement was not being received for the truth of the matter as against defendant Tomas, but only for the limited purpose of establishing the basis for [Detective R.s] opinion as to [] Vicentes gang affiliation, if any, and the other respects. Defendants try to make much of the undefined other respects, but this term reasonably applies to Detective R.s gang opinions aside from gang affiliation. And even without Vicentes challenged extrajudicial statement, there was a cornucopia of evidence supporting the conclusion that Vicente was a Sureo gang member and on which Detective R. relied in giving his opinions regarding the gang enhancement allegation.

Vicente had an inked 13 on the web of his hand. He had been pictured in a gang-type photograph, depicting with another man the number 13 with their hands. His confederate in the present offense, Tomas, was an admitted Sureo gang member who had a Sureo gang-related tattoo. Both Vicente and Tomas had gang-like monikers. Both were wearing gang-related clothing during the commission of the present crime, and featured the Sureo hairstyle. Defendants had written at least a portion of SUR in their holding cell during trial, which indicated Sureo gang membership. And, as explained previously, the circumstances of the shooting itself typified gang-related behavior.

6. Lesser Included Instruction on Attempted Discharge

Defendants contend the trial court erred in failing to instruct on its own motion on the lesser included offense of attempted firearm discharge at an occupied vehicle. We disagree.

A trial court must instruct on its own motion on any necessarily included or attempted offense when there is evidence sufficient to support a conviction on such an offense as opposed to the charged offense; in other words, when there is evidence from which a reasonable jury could conclude that the lesser offense, but not the greater, was committed. (People v. Strunk (1995) 31 Cal.App.4th 265, 271 (Strunk); People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).)

Preliminarily, there is some question whether an attempt is even legally available for instruction here. Contrary to defendants reliance on section 1159--which permits a defendant to be convicted of any necessarily included or attempted offense to that charged--Strunk noted the following: While the same . . . jury instruction rule [i.e., the rule about the trial court instructing on its own motion on any necessarily included or attempted offense] generally applies to attempts as well as to lesser included offenses (see, e.g., 1159), an attempt is a specific intent crime and does not fit within the definition of a necessarily included offense of a general intent crime. (Strunk, supra, 31 Cal.App.4th at p. 271.) The charged offense here--shooting at an occupied vehicle ( 246)--is a general intent crime. (People v. Watie (2002) 100 Cal.App.4th 866, 879.)

In any event, defendants base this contention entirely on the discrepancy between eyewitness J.J.s account that Vicente fired into the victims car from just outside the window and eyewitness R.W.s account that Vicente fired into the car from just inside the window. Both of these eyewitnesses, however, had Vicente firing into the car. Defendants couple this discrepancy with the positive gunshot residue test on Vicente to conjecture that it may have been the driver who fired, rather than Vicente. As we have explained previously, the gunshot residue test indicated that Vicente would have to have been almost on top of the driver for the driver to have been the shooter. Defendants evidence is not such that a reasonable jury could . . . conclude that the lesser [offense of attempt], but not the greater, . . . was committed. (Breverman, supra, 19 Cal.4th at p. 177, italics omitted.) Accordingly, the trial court did not have to instruct on its own motion on attempted discharge.

7. Juror Issues

Vicente contends the trial court abused its discretion in failing to discharge juror No. 3, while Tomas contends the trial court abused its discretion in discharging juror No. 9. We find no abuse.

Section 1089 authorizes a trial court to discharge a juror for inability to perform his or her duty. A trial courts decision to discharge, or not discharge, a juror under section 1089 is reviewed for abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 743.) The jurors inability must appear in the record as a demonstrable reality. (Ibid.)

As for juror No. 3, the record shows the following. During a break in the trial, witness R.W. approached juror No. 3, and the juror told R.W. he was not supposed to talk to him. Juror No. 3 did not engage in any more conversation, but R.W. continued to talk a little bit about trivial things. Juror No. 3 unequivocally indicated that this contact would not affect his judgment in evaluating R.W.s testimony. The record does not show a demonstrable reality of juror No. 3s inability to function.

Additionally, Vicente contends that the incident involving juror No. 3 shows, once again, the jurys inability to follow instructions, here the instruction not to speak to . . . any of the witnesses. But juror No. 3 did not speak to R.W., other than to tell R.W. he could not do so.

The trial court discharged juror No. 9 after noticing that the juror, upon entering the courtroom following a lunch period during trial, shook hands with Vicentes gang expert, James Hernandez. Juror No. 9 was acquainted with Hernandez as a result of their wives membership in a womens club, the Red Hat Society. The trial court determined that this information should have been disclosed. We find no abuse of discretion.

8. Restitution Fines

Finally, we reject Tomass argument that the trial court abused its discretion by imposing the statutory maximum and constitutionally excessive $10,000 restitution fine ( 1202.4) (and a corresponding $10,000 parole revocation fine under section 1202.45, to be suspended unless parole were to be revoked). (People v. Wyman (1985) 166 Cal.App.3d 810, 816 [setting forth the abuse of discretion standard of review].)

The probation report recommended this amount. Tomas committed the crime in a public commercial area during business hours while people were about, the crime involved the discharge of a firearm at a person, and the crime was gang-related. While Tomas may not have been the shooter, substantial evidence shows he was the instigator of the shooting. Given the gravity of the offense and the circumstances of its commission, the trial court did not abuse its discretion in imposing these fines, which were not unconstitutionally grossly disproportional to the gravity of [the] offense. (United States v. Bajakajian (1998) 524 U.S. 321, 324 [141 L.Ed.2d 314] [setting forth this constitutional standard].)

Disposition

The judgments are affirmed.

DAVIS , J.

We concur:

SCOTLAND, P.J.

BUTZ , J.

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^[1] Hereafter, undesignated section references are to the Penal Code.

^[2]Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).