P. v. Juarez

Filed 2/5/10 P. v. Juarez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from the judgment of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Affirmed.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Juarez.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant David Armendariz.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________

The jury found defendants Jonathan Juarez and David Armendariz guilty of the first degree murder of David Calixtro. (Pen. Code, 189, subd. (a).)^[1] The jury further found that Juarez killed Calixtro by personally and intentionally discharging a handgun ( 12022.53, subds. (b)-(d)), and that both defendants committed the offense to benefit a criminal street gang ( 186.22, subd. (b)(1)(c)). As to Armendariz, the jury found not true the special allegations concerning firearm use by a principal. In a separate proceeding, the trial court found the recidivist allegations trueJuarez suffered a prior serious or violent felony conviction under the three strikes law ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior conviction within the meaning of section 667, subdivision (a); Armendariz suffered two prior strike convictions and two section 667, subdivision (a) prior convictions. Juarez received a sentence of 80 years to life, consisting of 25 years to life doubled under the three strikes law, plus 25 years to life for the firearm use finding and an additional five years for the prior conviction. Armendariz received a sentence of 85 years to life, consisting of 25 years to life tripled under the three strikes law, plus 10 years for the two prior convictions.

In his timely appeal, Juarez contends: (1) the trial court prejudicially erred in failing to grant his motion to bifurcate trial of the murder charge and the section 186.22 gang allegation; (2) his trial counsel rendered constitutionally ineffective assistance by failing to request a limiting instruction as to the proper bases for which gang evidence could be considered; (3) the pattern instruction, Judicial Council of California Criminal Jury Instructions (2008-2009) CALCRIM. No. 226, erroneously and prejudicially instructed the jury to use common sense and experience to evaluate evidence; and (4) the trial court imposed an unauthorized sentence by failing to award sufficient presentence custody credits. Armendariz contends there was constitutionally insufficient evidence to support his murder conviction and the gang finding. He also joins in Juarezs appellate arguments. We affirm.

STATEMENT OF FACTS

On March 29, 2006, at noon, Thomas Escobedo was driving westbound on Lucien Street in Compton. As Escobedo approached the four-way stop at the intersection of Aranbe Avenue, he saw defendant Juarez approaching the intersection, driving a green car northbound on Aranbe. Juarez had a single passenger, an African-American male, sitting in the front passenger seat.^[2] Escobedo yielded the right of way to Juarez at the intersection. After Juarez drove through the intersection, Escobedo turned right on Aranbe, behind Juarezs car, and parked on Aranbe. Juarez stopped his car in the middle of the street, 40 to 50 feet in front of Escobedo.

Calixtro was walking on the sidewalk, northbound in front of Juarezs car. Juarez exited his car with a gun in his hand. He approached Calixtro, who was unarmed and did not turn around to see Juarez. When Juarez was 15 to 20 feet behind Calixtro, Juarez began firing his handgun at the victim, who fell forward to the ground. Juarez walked up to Calixtro, fired three to five more gunshots at the prone victim, walked back to his car, and drove away from the scene. Within a few minutes, a white Blazer pulled up to Calixtro. A man got out, approached the victim, and took a small, dark object from him. Escobedo, who had watched those events from his parked car, called the 911 operator and reported the incident.

Deputy Eric Gonzalez responded to the scene and found Calixtro supine on the sidewalk, bleeding from gunshot wounds. The fire department arrived soon after that. Calixtro was taken to the hospital and was pronounced dead at 12:30 p.m., shortly after arrival. His blood contained trace amounts of methamphetamine. A medical examination showed that Calixtro suffered four through-and-through gunshot wounds to his back and torso, along with one that grazed his right thigh. At least one of the former wounds would have been fatal, as it injured organs including his aorta and stomach. Approximately 10 bullet casings were found in the street near the body.

When Escobedo was interviewed by a sheriffs deputy later that afternoon, he was unable to identify anyone in a photographic lineup as being the shooter. At that time, the investigation had not identified Juarez as a potential suspect. Approximately five months later, when Juarezs photograph was included in a six-pack photo spread, Escobedo identified Juarez as the shooter. Escobedo had seen Juarezs face at the intersection and when Juarez walked back to the green car after the shooting. Escobedo also saw the side of Juarezs face when he stepped out of the car.

Antonio Rubio had been a member of the Vario 70s, a Compton street gang. It was contrary to gang culture to testify in criminal matters and Rubio feared retribution if he testified. According to Rubio, if someone snitches on a gang member, he will get killed. Before the shooting, Rubio was working on a car radio approximately seven houses south of the intersection of Aranbe Avenue and Stockwell Street (two blocks south of Lucien Street). Rubio watched as defendants talked to Calixtro from their car. Juarez was in the driver seat, and Armendariz was in the passenger seat. Rubio did not hear the conversation, but only the word, KAK, the name of a tagging crew. When he heard the gunshots, Rubio went to the intersection and saw an African-American jump into a car; he assumed it was the same person who had been in the green car but could not see him well enough to be sure.

In a subsequent interview with Sergeant Richard Garcia, Rubio said that he and Calixtro, whom he knew as C-Note, were smoking marijuana and talking before the incident. Rubio told the detective that Calixtro was a member of a tagging crew called KAK, which was affiliated with the Compton street gang, T-Flats. Juarez, whom Rubio knew as Solo, was in a green car with an African-American male. Rubio told the detective that when defendants drove up to him and Calixtro, Juarez told Calixtro, Youre lucky I dont kill you because theres a lot of people around here. Rubio identified Juarezs photograph from a six-pack photo spread as being that of the driver. He identified a photograph of Armendariz as the African-American who was in the car with Juarez.

Sergeant Garcia interviewed Rubio in September 2006, when Rubio had been arrested on a warrant. Rubio told Sergeant Garcia that he had information concerning the Calixtro killing. Minutes before the shooting, Rubio overheard Armendariz tell Juarez that there were too many witnesses in the area. Upon hearing that, Juarez told Calixtro that he would kill him, other than the fact that there were too many people in the area. Rubio also told Sergeant Garcia that Armendariz was holding a gun. Rubio did not appear intoxicated during the interview.

On cross-examination, Rubio recanted his statements and identification, asserting that he made them to avoid going to jail and because he was intoxicated. He was subject to an arrest warrant and had been interviewed after having been arrested for drug possession.

Detective Ron Navarrette of the sheriffs department testified as a gang expert. Having been assigned to Compton since late 2000, he was familiar with the Compton-based gangs in general and with Vario Locos Trece, also known as Locos 13, in particular. It had approximately 150 members. The primary activities of Locos 13 are narcotics sales, theft crimes, and other violent crimes including murders. The detectives knowledge came from personal experience in crime investigations and familiarity with investigations by other officers. Juarez is a member of Locos 13, with gang-identifying tattoos, including one covering his entire back. Additionally, Juarez admitted membership, dressed as a gang member, and kept company with other gang members. His gang monikers were Solo and Lil Red. According to Detective Navarrette, Armendariz was also a member of Locos 13. Armendariz had a Locos 13 tattoo on his stomach, a 13 on his arm, and a gang logo on his leg. His gang moniker, Dirty D, was tattooed on his other arm.

One of Locos 13s main rivals was the Tortilla Flats gang. The KAK tagging crew was a lower echelon of the Tortilla Flats gang. Inherent in Locos 13 culture was its members hatred for members of Tortilla Flats. Calixtro had a KAK tattoo on his ankle. The shooting occurred in Locos 13 territory.

Detective Navarrette opined that the facts adduced in the prosecution case indicated the shooting would have been committed for the benefit of Locos 13. Calixtro was aligned with Tortilla Flats. Defendants were members of rival gang Locos 13. They found Calixtro in Locos 13 territoryand that alone would be perceived as an act of disrespect toward Locos 13. Prior to the shooting, defendants made unfriendly or threatening comments to Calixtro. In gang culture, to allow Calixtro to walk away unchallenged would be a mark of weakness against Locos 13 because the gang claimed the territory as its own. Maintaining the climate of fear and intimidation that preserved their influence in their territory demanded that Locos 13 members respond violently against encroaching rivals. The fact that there were two Locos 13 members together increased the likelihood of violent retribution because there would be additional pressure to respond to the perceived act of disrespect.

DISCUSSION

Bifurcation of Gang Allegation

Defendants contend the trial court prejudicially erred in failing to grant the pretrial motion to bifurcate trial of the murder charge and the section 186.22 gang allegation. We review the trial courts ruling under the deferential abuse of discretion standard. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).)

In opposing the bifurcation motion, the prosecution argued that its proffered evidence would support the reasonable inference of a gang-related killing, based on defendants status as members of a gang and the victims membership in a tagging crew affiliated with a rival gangwhich tended to show a gang-based motive for the shooting. Defendants responded that membership in a tagging crew was too attenuated to support such an inference. In denying the motion, the trial court agreed with the prosecution and additionally found the proposed gang evidence would not be unduly prejudicial.

We perceive neither error nor prejudice. Evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Gang evidence may be relevant to identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. (Hernandez, supra, 33 Cal.4th at p. 1049.) To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. (Id. at pp. 1049-1050.) However, [e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itselffor example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is chargeda court may still deny bifurcation. (Id. at p. 1050.) Accordingly, a trial courts discretion to deny a bifurcation motion is broader than its discretion to admit gang evidence when the gang allegation is not charged. (Ibid.) Joinder of a gang allegation and substantive charge is inappropriate only when the evidence admitted to prove the gang allegation is so minimally probative on the charged offense, and so inflammatory in comparison, that it threatens to sway the jury to convict regardless of actual guilt. (Id. at p. 1051.) The defendant has the burden of clearly establishing a substantial danger of prejudice requiring bifurcation. (Ibid.)

Here, defendants failed to satisfy that burden because there was substantial evidence to support the reasonable inference of a gang-related motive for the Calixtro killing: The victim was affiliated with a gang rival; his mere presence in Locos 13 territory would have been perceived as an affront to members of Locos 13; the name of Calixtros tagging crew was mentioned in the verbal confrontation between Calixtro and defendants minutes before the shooting; and the murder was accomplished in an execution style with no indication that defendants had any other motive, such as robbery.

This case is unlike People v. Ramon (2009) 175 Cal.App.4th 843, in which the appellate court found the experts opinion as to a gang-related purpose was merely speculative. There, the gang expert rendered his opinion based solely on the facts that the two defendants were found in a stolen car with an unregistered handgun, driving in their gangs territory. As such, the expert opined, the defendants had obtained the tools with which they might commit other gang-related crimes in the future. (Id. at pp. 847-848, 853.) Here, in contrast, there was no speculation about future crimes to benefit the gang. The prosecution presented substantial evidence that the Calixtro murder was committed by gang members against a rival who was openly encroaching in gang territory. Accordingly, as the gang evidence of motive would have been admissible at a trial of guilt on the murder charge, any inference of prejudice would be dispelled, and bifurcation would not be necessary. (See People v. Balderas (1985) 41 Cal.3d 144, 171-172 [discussing severance of charged offenses].) (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)

Nor is this a case that posed a serious risk that joinder would prevent the jury from making a reliable judgment about guilt or innocence. Contrary to defendants assertion, the eyewitness testimony was not inherently contradictory. Escobedo presented strong evidence that Juarez drove the green car and shot Calixtro; however, Escobedo did not testify as to the passengers identity but did identify him as an African-American malewhich was consistent with Rubios testimony. On the other hand, Rubio saw both defendants in the green car minutes before the shooting, but did not witness the shooting itself. Rubio merely assumed Armendariz was the shooter because of his race, and when Rubio arrived at the scene, he saw an African-American male get into a car and drive away. The jury could therefore reasonably conclude that the person Rubio saw was the third person described by Escobedothe male who took property from the victim after Juarez fled the scene with his accomplice. In short, the jury did not have to rely on the gang evidence to place Armendariz in the green car at the time of the initial verbal confrontation and subsequent shooting.

Further, as the trial court found, the gang evidence was not unduly inflammatory. There was reliable evidence, including gang-identifying tattoos, to support a reasonable inference that defendants were Locos 13 members and that Calixtro was a member of a tagging crew, known to be a lower echelon of one of Locos 13s primary rivals. The only gang-related evidence not relevant to the murder charge was the testimony concerning predicate crimes committed by other Locos 13 members, but that was presented in a summary fashion without any detailed, inflammatory testimony concerning the prior crimes. Thus, there was no serious danger the jury would be tempted to punish defendants for other crimes committed by their gang.

Defendants also argue that even assuming the propriety of the trial courts ruling on bifurcation, the court was obliged to give a limiting instruction on the permissible uses for the gang evidence. Not so. Neither defendant requested such an instruction. As our Supreme Court explains, trial courts have no sua sponte duty to give such a special instruction absent an extraordinary case in which the evidence subject to the foregone request was a dominant part of the prosecution case and both highly prejudicial and minimally relevant to any legitimate purpose. (Hernandez, supra, 33 Cal.4th at p. 1052.)

Finally, defendants appellate invocation of the due process clause is similarly lacking in merit. We discern nothing in defendants argument that implicates the federal Constitution. [T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida), citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913.) We consider the very narrow due process argument on appeal that the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process. (Partida, supra, 37 Cal.4th at p. 435.) There was no such evidentiary objection, and we find no due process violation for the same reasons we found no prejudicial error under state law.

Sixth Amendment

Defendants argue their respective trial counsel rendered constitutionally ineffective assistance by failing to request a limiting instruction as to the proper bases for which gang evidence could be considered. As our Supreme Courts recent decision in Hernandez, supra, 33 Cal.4th 1040 makes clear, defendants fail to make the required showing to establish either aspect of a Sixth Amendment violation.

To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings. (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; Williams v. Taylor (2000) 529 U.S. 362, 390-391; People v. Kraft (2000) 23 Cal.4th 978, 1068.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.) (People v. Cunningham, supra, at p. 1003.) A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citations.] (Id. at p. 1003; Hernandez, supra, 33 Cal.4th at p. 1053.)

Here, as in Hernandez, we cannot say that counsel were deficient for not requesting a limiting instruction because a reasonable attorney could have concluded, as a tactical matter, that the risk of a limiting instruction outweighed the questionable benefits such instruction would provide. (Hernandez, supra, 33 Cal.4th at p. 1053, citing People v. Maury (2003) 30 Cal.4th 342, 394.) As we have shown, most of the gang evidence in defendants case was relevant to the murder charge. It was relevant to explain the reference to KAK during the verbal confrontation and to demonstrate a motive for the shooting. (See Hernandez, supra, at p. 1053 [much of [the gang evidence] was relevant to, and could be considered regarding, the charged offense. . . . Gang testimony was relevant to permit the jury to understand Hernandezs statement . . . [and] to show a motive for the crime].)

Of course, the gang evidence was was not admissible, and the jury could not consider it, solely to show that defendants were persons of bad character or had a disposition to commit crimes. (Hernandez, supra, 33 Cal.4th at p. 1053.) Counsel was therefore entitled to a limiting instruction to explain that evidence of other crimes may not be considered to show the defendant is a bad person or has a disposition to commit crimes and to outlin[e] the proper purposes for which the evidence may be considered. (Ibid.) For example, CALCRIM No. 1403 instructs the jury that gang evidence is admissible for the limited purpose of deciding whether, among other things, defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime and/or enhancement, or whether defendant had a motive to commit the charged offense. Additionally, such evidence may be considered in evaluating witness credibility or the facts and information relied on by an expert witness in reaching his or her opinion. (CALCRIM No. 1403.) On the other hand, the pattern instruction proscribes the jury from using the gang evidence to conclude that the defendant is a person of bad character or that he has a disposition to commit crime. (Ibid.; see Hernandez, supra, at p. 1053.)

Here, as in Hernandez, no one suggested the evidence could be used to show defendants were bad persons. (Hernandez, supra, 33 Cal.4th at p. 1053.) Under the circumstances, defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used. (Ibid.) Moreover, as we have pointed out, the gang evidence concerning criminal acts by other Locos 13 members was presented in a relatively sanitized manner so as to avoid anything inflammatory. Thus, even as to the gang evidence that was admissible solely to prove the gang allegation, counsel might reasonably not have wanted the court to emphasize this evidence either, especially since it was obvious for what purpose it was being admitted. (People v. Freeman (1994) 8 Cal.4th 450, 495.) This record presents no basis for finding that counsel acted ineffectively. (Hernandez, supra, at p. 1053.)

Nor can defendants satisfy the prejudice aspect of the Strickland inquiry. [T]he jury could properly consider most of the gang evidence on guilt, although not merely as showing that defendants were bad people. No one suggested that defendants should be found guilty solely because they were bad people. Even absent an instruction, it would have been obvious to the jury that the other gang members convictions [for the predicate offenses] were not relevant to and, accordingly, could not be considered regarding, defendants guilt of [the charged offense]. (Hernandez, supra, 33 Cal.4th at p. 1054.) Under these circumstances, a limiting instruction would not have significantly aided defendants under these facts or weakened the strength of the evidence of guilt the jury properly could have considered. (Ibid.)

CALCRIM No. 226

Defendants contend the pattern instruction for evaluating evidence, CALCRIM No. 226, erroneously and prejudicially instructed the jury to use common sense and experience. That is, by advocating the use of common sense and experience without cautioning that the jury must base its decision entirely on the evidence admitted at trial, the instruction posed the danger the jurors would commit misconduct by considering their own personal, extra-judicial experiences during deliberations, instead of the evidence. Like our colleagues in Division Two of this District, we find the argument unpersuasive. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1239-1240 (Campos).)

Without objection, the trial court instructed the jury on the manner in which to assess witness credibility pursuant to CALCRIM No. 226, which provides in pertinent part: You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witnesss testimony. Consider the testimony of each witness and decide how much of it you believe. In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. (CALCRIM No. 226.) The instruction went on to provide a list of authorized criteria for making that assessment.

As the Campos court explained, consideration of the jury instructions as a whole precludes any reasonable likelihood the jury would understand CALCRIM No. 226 to authorize the jurors to use their common sense and experience instead of the admissible evidence in reaching their verdicts and findings. (See Campos, supra, 156 Cal.App.4th at p. 1240.) To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a jurors background, experience and reasoning must necessarily provide the backdrop for the jurors decision making, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses credibility should be evaluated is common sense and experience. (Ibid.) More specifically, the pattern instruction does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses credibility. (Ibid.)

Furthermore, other instructions given to jurors make clear that the term common sense and experience is not a license to consider matters outside of the evidence. Jurors were instructed that they must decide the facts based on the evidence presented (CALCRIM No. 200), that they were not to conduct research or investigate the crime (CALCRIM No. 201), that their determination of guilt had to be based on evidence received at trial (CALCRIM No. 220), that they were only to consider evidence (sworn testimony and exhibits) presented in the courtroom (CALCRIM No. 222), that they had to decide whether facts have been proved based on all the evidence (CALCRIM No. 223), that they should review all the evidence before concluding that the testimony of one witness proves a fact (CALCRIM No. 301) and other instructions emphasizing the exclusive significance of the evidence (CALCRIM No. 302). (Campos, supra, 156 Cal.App.4th at p. 1240.)

As defendants fail to offer any reason to depart from the cogent analysis presented in Campos, we reject their contention.

Sufficiency of Evidence as to Armendariz

Armendariz contends there was constitutionally insufficient evidence to support his murder conviction and the gang finding against him. As to the underlying conviction, Armendariz argues, first, there was no reliable evidence to support Rubios testimony that Armendariz was at the scene and, alternatively, he cannot be found an aider and abettor because the prosecution case established nothing more than his presence at the shooting scene. His attack on the gang finding essentially recapitulates the argument made with regard to the bifurcation issuethat there was no substantial evidence to support the reasonable inference of a gang-related motive for the Calixtro killing.

The legal standard is well established. In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

A.Murder Conviction

Armendariz asserts the evidence of his presence at the shooting scene was inherently unreliable because Rubio told police that Armendariz was the shooter and later recanted and admitted he did not see the shooting and was poor at making cross-racial identifications. This argument fails because, as we explained supra, the jury could reasonably harmonize the testimony of Escobedo and Rubio to find that it was Armendariz who was the passenger in the green car at the time of the verbal confrontation and the shooting.

Rubio witnessed defendants talk to Calixtro from the green car at the time Calixtros KAK affiliation was mentioned. Rubio saw Juarez in the driver seat and Armendariz in the passenger seat. Given the short time that passed between the verbal confrontation and the shooting, along with Escobedos testimony that the passenger was African-American and the uncontested evidence that defendants were both Locos 13 members, it would be reasonable to infer that Armendariz was the passenger at the time of the shooting.

The fact that Armendariz can point to conflicts in the testimony and can offer reasons for challenging Rubios credibility does not render the evidence constitutionally insufficient. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. (E.g., People v. Young (2005) 34 Cal.4th 1149, 1181.) Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]) (People v. Perez (1992) 2 Cal.4th 1117, 1124.) Further, the fact that Rubio recanted the inculpatory statements he had made to Sergeant Garcia did not proscribe the jury from relying on them. As the jury was instructed, pursuant to CALCRIM No. 318, the prior inconsistent statements were admissible both for impeachment and for their truth. (See, e.g., People v. Coffman (2004) 34 Cal.4th 1, 63.)

Armendariz also argues that even assuming the prosecution evidence reliably placed him at the scene, there was no reasonable, credible, and solid evidentiary basis for finding that his active involvement rose to the level of aiding and abetting. We disagree.

Under California law, a person who aids and abets the commission of a crime is a principal in the crime, and thus shares the guilt of the actual perpetrator. ( 31.) [] Accomplice liability is derivative, that is, it results from an act by the perpetrator to which the accomplice contributed. [Citation.] (People v. Prettyman (1996) 14 Cal.4th 248, 259.) [A]n aider and abettor is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; . . . (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense[; and] (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 136.) 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. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)

Here, it was established that defendants were members of the same criminal street gang and the victim was aligned with their rivals. The jury was permitted to credit Rubios statements that minutes before the shooting incident, during the same confrontation with Calixtro in which his tagging crew was mentioned, Armendariz held a firearm and told Juarez that there were too many witnesses in the area, prompting Juarez to threaten Calixtro that he would have killed him then, but for the presence of witnesses in that location. From Escobedos testimony, the jury was entitled to find that defendants followed Calixtro at a discrete distance to a place where the victim was alone on the sidewalk. Juarez, in plain sight of Armendariz, parked the car in the middle of the street behind Calixtro. Juarez approached on foot, shot Calixtro in the back, walked up to the prone victim, and fired additional shots. During that incident, Armendariz remained in the car and fled with Juarez.

Those circumstances go well beyond mere presence at the scene. The jury could reasonably infer that Armendariz knew of Calixtros KAK membership, was aware of Juarezs intent to shoot Calixtro, advised his comrade to delay the shooting because of the presence of witnesses, and encouraged Juarez to commit the crime when Calixtro was alone on the sidewalk. Not only were defendants fellow gang members who shared the same gang-related motive to shoot Calixtro, but Armendarizs statements just prior to the act and his presence in the car before, during, and after the shooting support an inference of active involvement. That is, the jury could reasonably find that Juarez followed Armendarizs advice to find a more promising location for the shooting. Additionally, after Juarez fired the initial shots to fell Calixtro, Armendariz had the opportunity to disassociate himself from Juarez, but chose to flee the scene with him. Contrary to Armendarizs assertion, the prosecution case amply permitted the jury to find that he was not merely along for the ride.

Finally, as we explained in the context of defendants bifurcation argument, there was substantial evidence to support the reasonable inference of a gang-related motive for the Calixtro killing. The prosecution gang experts testimony cannot be dismissed as being speculative or conclusory. There was a solid evidentiary basis for Detective Navarrettes opinion testimony: The shooting occurred in Locos 13 territory; defendants were members of Locos 13, who were rivals of the Tortilla Flats gang; the KAK tagging crew was a lower echelon of the Tortilla Flats gang; Calixtro was a member of KAK, whose presence in Locos 13 territory would be deemed an insult to Locos 13; and allowing Calixtro to proceed openly in Locos 13 territory would be perceived as an insult to the gang. That testimony, along with the percipient witness testimony, provided reasonable, credible, and solid evidence of Armendarizs active participation in a verbal gang confrontation preceding the shooting, along with his encouragement of Juarez in committing a crime that had no apparent motive other than vindication of Locos 13s territorial claims.

Custody Credits

Defendants contend the trial court imposed an unauthorized sentence by failing to award any presentence custody credits. That is, defendants concede they are not entitled to conduct or work time credits, having been convicted of murder (see 2933.2, subd. (a)) but argue they were not given full credit for the actual time spent in local custody from the time of arrest to the imposition of their sentences on September 9, 2008. (See  4019.) At the time of sentencing, the trial court did not make a finding as to the amount of local custody time to be credited. The minute order and abstract of judgment for each defendant references an award of 365 days of actual custody for both defendants.

Neither defendant can point to any solid, unambiguous evidence in the record as to the date of arrest. Armendariz points to a reference in his probation officers report that indicates an arrest date of September 6, 2007, which if accurate would mean that he is entitled to four additional days of credit. Unfortunately, there is nothing else in the record to corroborate that date. In the same fashion, Juarezs probation officers report contains a reference to an arrest date of August 3, 2006, for total of 767 days of actual custody. However, a subsequent reference in the criminal history section indicates that arrest was for a different crime in a different matter.^[3]

The Attorney General does not dispute that under section 2900.5, defendants are entitled to credit for the actual amount of time spent in custody on the underlying charges prior to sentencing, but argues the record is not adequate to make a reliable determination of presentence custody credit. We agree. Although each defendant received credit for one year, the trial court did not make any finding to that effect at the time of sentencing. Moreover, the appellate record is insufficient for us to make the requisite finding. (See People v. Mendez (2007) 151 Cal.App.4th 861, 864 [A defendant is entitled to credit for presentence custody only if he shows the conduct that led to his conviction was the sole reason for his loss of liberty during the presentence period.], citing People v. Bruner (1995) 9 Cal.4th 1178, 1191.)

Our rejection of this appellate claim is without prejudice to any relief defendants may seek in the trial court. (See 1237.1 [No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.]; People v. Fares (1993) 16 Cal.App.4th 954, 958 [If a dispute arises as to the correct calculation of credit days, such should be presented on noticed motion to the court that imposed sentence].)

DISPOSITION

The judgment is affirmed as to both defendants.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

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^[1] All further statutory citations are to the Penal Code unless noted otherwise.

^[2] Escobedo did not identify the passenger, but from the testimony of prosecution witness Antonio Rubio, whose testimony is summarized infra, the jury could infer it was Armendariz.

^[3] In a motion to dismiss filed by Juarez on November 27, 2007, it was represented that as of January or February 2007, Juarez was being held on an unrelated case.