P. v. Pacheco

Filed 2/11/10 P. v. Pacheco 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

This case contains all the elements of a senseless gang murder: drugs and beer, goofy nicknames, numeric tattoos, machismo, taunting, retaliation, guns, a blameless victim, and what has become de rigueur in gang casesa gang expert who in this instance was permitted to opine on the history, psychology, and sociology of gangs of all ethnicities throughout the state, whether the charged crimes were committed for the benefit of the gang, and on an individual gang members intent when participating in gang-related activities.

In this consolidated appeal by two Sureo gang members convicted of murder at their joint trial by two separate juries, defendants Luis Fernando Pacheco and Jorge Lopez raise various challenges to the expert testimony. Pacheco also alleges the trial court had a sua sponte obligation to instruct on voluntary manslaughter, and Lopez challenges the sufficiency of the evidence that the crimes were gang related. Even if, as defendants assert, the trial court erred by allowing inappropriate opinion and by disallowing appropriate cross-examination, we conclude the errors, if any, were harmless beyond a reasonable doubt. We reject their remaining claims of error and affirm.

FACTS

Sureo Brotherhood: Nicknames, Tattoos, and Lucky Numbers

The perpetrators in this case are validated members of a Sureo gang; the victim was the grandfather of a Norteo. None of the Sureos knew either the Norteo they shot at or the grandfather they killed. While according to the expert they were avenging an earlier assault presumably perpetrated by three teenage Norteos, they had no reason to suspect the Norteo they shot at had been involved in the earlier assault. It was a random and, as later acknowledged by one of the defendants, a senseless shooting.

The assault at about 7:00 p.m. and the killing that followed an hour and a half later occurred on February 5, 2007. High on crystal methamphetamine, Jose Goofy Medina was driving through a Norteo neighborhood when three teenagers on bicycles pulled up to him and one of them shot out the rear window of his car without, according to Goofy, any provocation. He testified he had not thrown any gang signs and did not expose his Sureo tattoos, including the HPS (Howe Park Sureos) on his knuckles, the number 13, or the three dots on the knuckles of his left hand. Believing he had been shot, he called his wife, his girlfriend, and at least one of his Sureo brothers. He drove over to the house of a friend, Juan Puppet Lopez, to hide his car. In fact, he had suffered only a superficial cut on his shoulder from the shattered window glass.

Puppet had tagged his own garage door with Sureo graffiti, including HPS; the number 13, representing the Sureos; farmer killa as a derogatory reference to Norteos; Sur for Sureos; his moniker, Puppet; and 916 for the Sacramento area. Several Sureos were hanging out at Puppets, drinking beer and smoking crystal methamphetamine. Codefendants Luis Pacheco, Jorge C-Locs Lopez, and Luis Diablo Garcia arrived at Puppets.[1] Goofy announced to everyone then assembled that three Norteos in Gardenland, a territory claimed by Norteos, had shot at him. Pacheco told everyone, Lets go get them.

Goofy claims he tried to dissuade his gang brothers from seeking revenge because, he testified, his wife, daughter, and sister lived in Norteo territory. Two of the gang members suggested they delay any retaliation for a few days to escape detection and to obtain a G-ride, a stolen car. Pacheco made a call to try to obtain a gun. Pacheco, Lopez, and Diablo dropped off Goofy at his girlfriends home and then proceeded to Norteo territory.

Gang Retribution

Lorenzo Fernandez had the misfortune of walking to a nearby liquor store at the same time three Sureo vigilantes arrived in his Norteo neighborhood. He assumed immediately they were Sureos because they wore baggy pants and were bald, except that one of the males had a little tail. Although he too was tattooed with gang insignia, he denied flaunting a rag, throwing any gang signs, or shouting any gang slurs. He testified he had been reading a magazine on the way to the liquor store. He did not, he insisted, have a gun.

Scared, Lorenzo began to run, throwing down his magazine. He saw two men pointing their guns at him and heard four or five gunshots. He ran into his house, shouting at everyone to stay inside and move to the back of the house because there was shooting outside. His grandfather, Jesse Fernandez, was walking over to lock the door when he was shot. Several neighbors witnessed or heard the shooting. Lorenzos grandfather died from a single gunshot wound.

The Informant

Goofy cooperated with the police because Norteos had threatened his wife. He told the police that Pacheco had told him a few days after the shooting that he chased Lorenzo to his house and shot at the door.

Lopez and Pacheco Admissions

During two police interviews, Lopez admitted that he, Pacheco, and Diablo left Puppets to look for a Norteo to avenge the earlier shooting at Goofys car. He saw Lorenzo throw up a four, which, when combined with the fact they were in a Norteo neighborhood, signified that he was a Norteo. Although he did not see Pacheco pull out a gun, he heard three or four shots and believed that Pacheco was just trying to scare Lorenzo.

Pacheco admitted his involvement in the shooting during a police interview. He claimed the kid they were chasing was wearing a red rag on his shoulder and threw up a number four as they drove by. They parked the car, got out, and began running after Lorenzo. Pacheco pulled the gun out of his pocket and shot it once Lorenzo got a little too far ahead. He insisted he shot at the house only to scare Lorenzo. Pacheco told the officer he had been shot at several times by Norteos but had not been hit. He admitted he bought the box of ammunition found in his room and described the gun he used to shoot at Lorenzos house. During his testimony, Detective Michael Lange read a letter of apology that Pacheco wrote:

Dear Judge, I dont know who -- whats going to happen to me, but what happened that night -- it was an accident. The person who passed away was never intended to be killed. In [sic] was an incident [sic], and I feel sorry for what happened. I just want to clear my head of that night and get it over with. Thats all I got to say.

Separate juries convicted both defendants of first degree murder (Pen. Code, 187, subd. (a))[2] and found true firearm use ( 12022.53, subds. (b), (c), (d) & (e)(1)) and gang enhancements ( 186.22, subd. (b)(1)).

DISCUSSION

I

It is well settled in this state that gang experts enjoy considerable latitude in expressing their opinions on a host of topics related to gang behavior, gang culture, gang values, gang motivation, gang response, and gang ideology. (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.) A Court of Appeal panel in People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), however, reversed a gang members conviction because the expert had been allowed to opine that the defendant knew that other gang members in another car possessed a firearm and the defendant subjectively intended to possess it.

Defendants contend the trial court committed the same error condemned in Killebrew; that is, the court erroneously allowed the gang expert to opine on their individual subjective intents. The wobbly line separating the admissible gang expert opinion from the inadmissible appears to rest on whether the experts testimony relates to gang behavior in general and/or the behavior of hypothetical gang members, or whether the expert opined on the individual defendants intent. Thus, we must carefully examine the record to determine whether the trial court abused its discretion by allowing the gang expert to stray from generalized descriptions of hypothetical gang members to specific opinions of each defendants intent.

As defendants readily concede, the prosecutor used the sanctioned device of the hypothetical question. He asked:

I want you to assume certain facts for this hypothetical. I want you to assume that a Sureo gang member is shot at in, say, Gardenland turf. That Sureo goes to a fellow Sureos house where he calls fellow Sureos to come and talk to him where they discuss what had just happened to him.

Assume that, for this hypothetical that when this group is together that they discuss needing a handgun. I want you to assume that three of the Sureos then get into a car and drive into Gardenland turf where they spot a Norteo walking down the street; okay?

What might you expect to happen when those Sureos see that Norteo.

A[.] Well, in my opinion, when they got called by the subject who was shot at to come over to the residence and they were in concert together and went and got a handgun, they were intending to go out looking for Norteos or Gardenland gang members to retaliate the earlier shooting. They did not care who it was, just a Norteo in the Gardenland area.

When they saw this individual who they believed to be a Norteo they pursued him. They went after him. And in doing so, they chased him in retaliation for the earlier incidents and subsequently shot into the residence.

[] . . . []

Q[.] Would it surprise you under the hypothetical to find that [sic] Sureos shooting at a Norteo that is running away from them?

A[.] No, theyre preying on them and stalking them and chasing them. Thats what they want. They know now that the numbers are on their side. Earlier the numbers were not on their side. (Italics added.)

The hypothetical question, despite the misgivings of the scholars cited by defendants, can be used to elicit an opinion on the basis of the facts the prosecutor asks the expert to assume. (Gardeley, supra, 14 Cal.4th at p. 618.) Such a hypothetical question must be rooted in facts shown by the evidence, however. (Ibid.)

Defendant Pacheco contends that the experts response ventured from the hypothetical to the specific. Unlike the opinion offered in response to the hypothetical question posed in Gardeley that the activity was gang-related, defendants argue that the gang expert opined they were in concert together, they were intending to go out looking for Norteos . . . , they chased him in retaliation for the earlier incidents and subsequently shot into the residence, and theyre preying on them and stalking them and chasing them. In defendants view, these opinions were analogous to the forbidden opinions offered in Killebrew whereby the expert opined not only on the motivations of gang members in general, but on the intent of specific gang members accused of possessing a gun they claimed they knew nothing about.

Defendants argument echoes the same objection raised by the defendant in People v. Ward (2005) 36 Cal.4th 186 (Ward). Like defendants, Ward contended: [T]he prosecutor impermissibly used fact-specific hypothetical questions to elicit testimony from these experts that a gang member going into rival gang territorylike defendantwould do so as a challenge and would protect himself with a weapon. According to defendant, the specificity of the hypothetical questions converted the answers by the experts into improper opinions on his state of mind and intent at the time of the shooting. As such, the experts were not merely explaining gang practices or methods generally but opining that defendant premeditated the crimes. (Id. at p. 209.)

The Supreme Court rejected the defendants notion that the hypothetical questions called for impermissible opinions. According to the Supreme Court, the questions did not call upon the experts to opine on the defendants intent; rather, they sought an explanation for the defendants motivation. The court concluded that the expert opinions in this case fall within the gang culture and habit evidence approved in People v. Gardeley, supra, 14 Cal.4th at page 617. The substance of the experts testimony, as given through their responses to hypothetical questions, related to defendants motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges. [Citations.] This testimony was not tantamount to expressing an opinion as to defendants guilt. (Ward, supra, 36 Cal.4th at p. 210.)

In Ward, as in People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez I), the defendants relied upon Killebrews holding that a gang expert may not opine on the knowledge or intent of a defendant on trial. In both cases, they were rebuffed. To date, the Supreme Court has shown no aversion to permitting gang experts to opine on a wide range of gang-related topics. And, as the court admonished in Gonzalez I, Killebrew should not be read to bar the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. (Gonzalez I, at pp. 946-947.) Citing People v. Gonzalez (2005) 126 Cal.App.4th 1539 (Gonzalez II), the court stated plainly that the use of hypothetical questions is proper. (Gonzalez I, supra, 38 Cal.4th at p. 946, fn. 3.)

But Gonzalez II involved safeguards lacking in Ward, Gonzalez I, and the case before us. The prosecutor assured the trial court she would not ask the expert any hypothetical questions based on anything that could be interpreted as asking his opinion with regard to the specific intent of the perpetrator in this case. (Gonzalez II, supra, 126 Cal.App.4th at pp. 1549-1550.) Although the trial court allowed the prosecutor to elicit an experts opinion about gang motivation to intimidate over an Evidence Code section 352 objection, the trial court admonished the prosecutor not to inquire about any individuals knowledge or mind set, and the gang expert was not to testify to the effect that the Mexican Mafias rules were absolute and uniform. (Id. at p. 1550.)

In affirming the trial courts admission of the expert opinion, the Court of Appeal found there had been no abuse of discretion. No hypothetical question had been asked involving the facts of the case, and the gang experts testimony did not embrace the defendants particular knowledge or his intent, specific or otherwise.^[[3]^] Rather, his testimony addressed the motives of jailhouse gang members in general. This evidence, coupled with the evidence that appellant was a gang member, may have led the jury to the ineluctable conclusion that appellant intended to kill Cruz, but that does not render it inadmissible. (Gonzalez II, supra, 126 Cal.App.4th at p. 1551.)

Unlike the prosecutor in Gonzalez II, here the prosecutor purposely posed a hypothetical incorporating the specific facts supporting his theory of premeditated murder. The trial court did not admonish the prosecutor to restrain his inquiry, nor did it impose any limitations on the scope of the hypothetical or the specificity of the responses. Thus, unlike the Court of Appeal in Gonzalez II, we cannot express the same confidence in the trial courts exercise of discretion that the expert only made comprehensible and logical that which is otherwise inexplicable and incredible (Gonzalez II, supra, 126 Cal.App.4th at p. 1551) and was not a mere mouthpiece for the prosecutors theory that defendants intended to kill because that is what gang members typically intend.

Our discomfort arises from the specificity of the gang experts responses to the prosecutors questions. While the prosecutor may have based the hypothetical on the evidence presented at trial, the expert clearly converted the hypothetical to the specific defendants. He opined that when they got called they were in concert together, and when they went to get a gun they were intending to go out looking for Norteos . . . . The gang experts responses are reminiscent of the opinion of subjective intent prohibited by Killebrew.

Yet we remain sobered by the breadth of hypothetical questions allowed by the Supreme Court in cases such as Gardeley, Ward, and GonzalezII. Indeed, those cases provide a gang expert with substantial wiggle room. If, as the Attorney General implies, they refers not to the individual defendants in this case but to the hypothetical gang members staged in the prosecutors hypothetical, then it is difficult to conclude the trial court abused its discretion under the expansive authority provided by the Supreme Court.

Ultimately, in this case we need not decide this difficult question because we conclude that any error in allowing impermissible opinion was harmless beyond a reasonable doubt. Unlike Killebrew, wherein the evidence of guilt was flimsy at best and the expert opinion was pivotal, here the evidence of guilt was overwhelming and the expert opinion had a minuscule impact, if any. In fact, there is some doubt whether the expert opinion was necessary to assist the trier of fact at all.

Pacheco admitted his involvement during the police investigation following the shooting. Goofy testified that Pacheco told him he had shot at the Fernandez house. Pacheco, a validated gang member, after hearing of the earlier shooting, announced, Lets go get them, secured a gun, and set off for Norteo territory. There is no dispute he pursued a random Norteo on foot, shot at him, and then shot through the door of his house, killing the grandfather who was merely attempting to secure the door and safeguard his family.

There was hardly anything subtle or nuanced about Pachecos behavior. Thus, the gang experts testimony that gang members often retaliate added little to what the jury could deduce on its own. Whether his gratuitous comment that they were intending to go out looking for Norteos constituted an improper opinion on Pachecos subjective intent, it did little to enhance the unchallenged evidence that Pacheco spearheaded the retaliatory attack and had plenty of time to deliberate and execute a cold-blooded shooting. Whatever trepidation we have about the opinion offered by this gang expert is mitigated by the confidence we have in this case that any error in admitting the opinion was harmless beyond a reasonable doubt. As a result, it did not render the trial fundamentally unfair so as to constitute a violation of Pachecos constitutional right to due process under the federal and state Constitutions.

II

Pacheco and Lopez also complain that the trial courts limitation on their cross-examination of the gang expert violated their constitutional rights to confrontation and to present a defense. The sanctity of defendants rights of confrontation and to present their defense is at the heart and soul of our criminal justice system. The question is not on the scope or the importance of their asserted rights, but whether the record demonstrates that the courts ruling limiting but two questions posed by Pachecos defense attorney in the context of the overall cross-examination of the gang expert and the presentation of their defense rendered their trial constitutionally deficient.

We begin with the context. The prosecutions hypothetical questions posed to the gang expert were designed to demonstrate that defendants engaged in a premeditated murder by gathering together, planning the shooting in retaliation for the earlier incident involving Goofy, obtaining a gun, and stalking their Norteo victim. Pacheco proferred a theory of self-defense; that is, his lawyer argued Norteos had shot at Pacheco in the past, he believed Lorenzo was carrying a gun, not a magazine, and he shot out of fear for his safety. Lopezs lawyer argued that Lopez did not know Pacheco had a gun, and when Pacheco pulled it out during the chase, he believed Pacheco intended only to scare the fleeing Norteo. Both relied on evidence the murder had not been planned; rather, any retaliation was scheduled for Thursday, not the Monday on which the shooting occurred. In contrast to the prosecutions theory of premeditated murder, they sought to convince the jury the Norteo they encountered coincidentally later on Monday night provoked the shooting.

The record discloses they had ample opportunity to develop these defenses. Goofy and Puppet testified they heard conversations indicating that any retaliation would take place on Thursday, not Monday. Puppet stated there was talk about getting a G-ride, a stolen car, for Thursday so they would not be recognized or caught. While Pacheco was anxious to retaliate immediately, urging his compatriots, Lets go right now! Lets go right now, another gang member, Grande, suggested going on Thursday instead. This evidence supported the inference, however weakly, that the murder was not premeditated. In any event, defendants were given the opportunity to present this evidence to advance their defenses.

Nevertheless, Pacheco attempted to cross-examine the gang expert about whether it would be hypothetically reasonable for gang members to postpone their retaliation for two or three days or, in other words, from Monday night to Thursday night. The court sustained the prosecutors objection about the possibility they might discuss doing it on a different night. The court stated, Hes not here for that.

Pachecos counsel tried again. She rephrased her hypothetical as follows: The same Sureo who has been shot up by Norteos has taken his car over to [a] friends house. They meet, they talk, and they discuss retaliation. And then its decided to do it on a Thursday night. The court again sustained the prosecutors objection because what you are asking for is for jury determination. And the only reason they use the expert is to assist the jury. This jury can make that determination. Hes not here for that.

It is difficult to understand the trial courts justification for allowing the gang expert to opine on gang members intent but not to allow him to consider the possibility that they might delay their retaliation. Nevertheless, defense counsels formulation of the question was problematic as it arguably allowed the expert to opine on a question of fact, whether the gang had planned to retaliate on Monday or Thursday, rather than on likely gang behavior. As a result, we cannot say the trial court abused its discretion by sustaining the prosecutors objections. The more important consideration is whether the courts ruling limiting this one area of exploration denied defendants their fundamental right to confrontation and to a fair trial. We have no difficulty concluding that the courts rejection of this evidence played a de minimis role in this trial and did not deprive defendants of any of their asserted constitutional rights.

The jury heard testimony from the gang members themselves that they planned to delay their retaliation for a few days. It was up to the jury to decide whether it believed their account or whether defendants followed the announced plan to go get them. As the trial court ruled, the expert could not determine whether the gang members decided to retaliate on Monday or Thursday; that was an issue solely within the province of the jury to decide. At best, the expert might have surmised that on occasion gang members did not retaliate right away. But that opinion would have added little to what the jury already knew and did not resolve the pivotal factual issue as to whether the murder was premeditated. Consequently, the trial courts rulings did not compromise defendants defenses or cross the threshold for constitutional error.

III

Defendants contend the trial court erred by failing to instruct the jury on the lesser-included offense of voluntary manslaughter. They acknowledge a trial court has an obligation to instruct on lesser included offenses only when there is substantial evidence from which a jury composed of reasonable [persons] could . . . conclude[] that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) They insist the following evidence triggered the trial courts duty to instruct on voluntary manslaughter.

Norteos had shot at Pacheco in the past, and Norteos had killed some of his friends. Presumably a Norteo had shot at his friend Goofy a couple of hours before the fatal shooting. Thus, when defendants saw Lorenzo, sporting a red rag on his shoulder, throwing gang signs, and shouting gang epithets, they were provoked, became impassioned, and feared for their lives. Their anxiety was heightened when they saw something in his hand they believed might be a gun.

A killing constitutes voluntary manslaughter, and not murder, if the perpetrator acts in a sudden quarrel or heat of passion ( 192, subd. (a)) or if the perpetrator kills in a good faith, although unreasonable, belief his life is threatened (People v. Barton (1995) 12 Cal.4th 186, 193-194). For a heat of passion killing to qualify as voluntary manslaughter, there must be sufficient provocation that would arouse the passions of an ordinarily reasonable person under the same circumstances. (People v. Moye (2009) 47 Cal.4th 537, 549-550.) We must determine whether there is substantial evidence defendants reason was, at the time of the shooting, so disturbed or obscured by some passion . . . to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. (Id. at p. 326, quoting People v. Berry (1976) 18 Cal.3d at p. 515.)

Substantial evidence does not mean any evidence. And substantial evidence is not gleaned merely from the evidence most favorable to the defense. Rather, we must review the entire record to determine whether there is substantial evidence to trigger the trial courts obligation to instruct on the lesser included offense. (People v. Cruz (2008) 44 Cal.4th 636, 664.)

If we were merely to accept defendants one-sided presentation of the evidence they believe triggered the obligation to instruct, every member of a street gang charged with murder would be entitled to an instruction on voluntary manslaughter. It is hard to imagine many gang members who have not been shot at or who have not lost friends to gang violence. Yet defendants contend their intimate familiarity with gang shootings inflamed their passions and obscured their reason. We do not find the evidence that defendants were personally acquainted with street violence as substantial evidence of sufficient provocation to chase down a lone Norteo walking down the street.

We do agree with defendants criticism of the Attorney Generals parsing of the evidence in such a way as to trivialize its provocative nature. We are quite willing to look at the totality of the circumstances, but those include all the circumstances, not just those favoring defendants skewed perception of reality. Indeed, there was evidence from various Sureos that Lorenzo wore red and called defendants by the derogatory term scraps. We will also consider the possibility that defendants believed he was armed. But defendants conveniently ignore all the facts that make their claim of heat of passion and unreasonable self-defense utterly implausible and certainly not supported by substantial evidence in light of the whole record.

Pacheco announced his intention to pursue Norteos just as soon as he heard Goofys car had been shot. He spearheaded the effort to obtain a gun and solicited the help of Lopez and Diablo. Even if we assume that they officially planned to delay the retaliation for a few days, as defendants would have us believe, within an hour and a half of the earlier incident involving Goofy, they drove into Norteo territory and spotted Lorenzo walking down the street. Again, assuming defendants version of the facts, Lorenzo might have made taunting gestures and uttered derogatory names, but they jumped out of their car and chased him. There is no evidence Lorenzo shot at them or pursued them.

Defendants would have us find the trial court failed to instruct on voluntary manslaughter based on evidence the three Sureos chased the lone Norteo into his house and, once the door was closed, shot through the door. We agree with the trial court that the record does not disclose substantial evidence of either heat of passion or unreasonable self-defense. The evidence of provocation or the need for self-defense was terribly weak when defendants first encountered Lorenzo, but it dissipated entirely once he ran away and tried to find safe harbor in his house. No ordinary men of average disposition would have remained in such a state of justifiable passion once the perceived danger had subsided and the Norteo was safely behind closed doors. There was no instructional error.

IV

Lopez challenges the sufficiency of the evidence that the murder was 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).) His challenge to the gang enhancement is completely without merit.

The scope of appellate review of a sufficiency challenge is exceedingly narrow. We must consider the evidence in the light most favorable to the verdict and presume the existence of every fact the jury could reasonably deduce from the evidence in support of the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The question before us is whether there is substantial evidence to support the judgment, not whether the evidence proves guilt beyond a reasonable doubt. (Id. at p. 576.)

Lopez assaults the character and credibility of the gang expert. He reiterates his objection to the experts opinion as to his intent, and he accuses the expert of hostility and bias. He also complains that the expert, for all his flawed opinions, failed to testify that the murder was gang related or committed for the benefit of the gang. In the absence of this kind of expert opinion, Lopez insists, there was no substantial evidence to support the gang enhancement. Not so.

First, we must disabuse Lopez of the notion that a gang expert is necessary to prove that a crime is committed for the benefit of a gang. We recognize, of course, that expert testimony on the benefit a gang derives from criminal conduct has become the norm in gang cases. But that is not to say that in the absence of an expert who explicitly testifies a crime is gang related, a jury cannot draw the same inference from testimony from gang members and the evidence of the gang-related nature of the crime.

It is, in fact, hard to imagine a more classic crime of gang retaliation than the evidence demonstrates here. As soon as Goofy, a Sureo, was shot at, he summoned his gang brothers and told them the incident occurred in well-known Norteo territory. The group immediately started planning their retaliation. There was an overwhelming abundance of evidence that the participants were deeply steeped in Sureo culture and were fiercely loyal to Sureo solidarity. Puppets garage was covered in Sureo graffiti. Goofy and Puppet were tattooed with Sureo symbols and numerology. Many wore Sureo blue and the customary short haircut or little tail. Neither of the defendants ever denied his Sureo affiliation.

Pacheco and Diablo obtained a gun and set off into Norteo territory within an hour and a half after the incident involving Goofy. The jury could certainly draw the reasonable inference that loyal Sureos, properly armed, would seek to avenge the earlier shooting. Goofy and Lopez both told law enforcement that retaliation would enhance the reputation and respect of the gang. Lopez and Diablo wore blue during the shooting, thereby advertising their gang affiliation.

Moreover, the gang expert did offer testimony to support the gang enhancement. He, too, testified that the shooting would set in motion a kind of retaliatory tug-of-war. Each gang, by inference, benefited by the next round of violence.

In sum, the evidence was not just substantial; it was overwhelming. Defendants retaliatory murder was for the benefit of their gang. Lopezs argument to the contrary is without merit.

DISPOSITION

The judgments are affirmed.

RAYE , J.

We concur:

SCOTLAND , P. J.

CANTIL-SAKAUYE , J.

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[1] Codefendant Luis Garcia is not a party to these consolidated appeals.

[2] All further statutory references are to the Penal Code unless otherwise indicated.

[3] While observing that the prosecutions hypothetical questions were not based on the facts of the case, the court also emphasized it was not holding that questions based on the facts of the case would have been improper. (Gonzalez II, supra, 126 Cal.App.4th at p. 1551, fn. 4.)