PEOPLE v. MUNGUIA No. D056080.

THE PEOPLE, Plaintiff and Respondent, v. SALVADOR MUNGUIA et al., Defendants and Appellants.

Court of Appeals of California, Fourth District, Division One.
Filed December 21, 2010.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

BENKE, Acting P. J.

A jury convicted Salvador Munguia and Sergio Rodriguez of attempted murder (Pen. Code,1 §§ 664/187, subd. (a), count 1), two counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 2, 3), and of actively participating in a criminal street gang (§ 186.22, subd. (a), count 4). The jury found both Munguia and Rodriguez committed counts 1, 2 and 3 for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The jury also found both Munguia and Rodriguez were principals to the commission and attempted commission of count 1 and at least one principal intentionally discharged a firearm and proximately caused great bodily injury to another person. (§ 12022.53, subds. (d), (e)). Further, the jury found Rodriguez personally committed count 1 with the use of a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). Finally, the jury found, as to both Munguia and Rodriguez, the commission of count 1 was not willful, deliberate or premeditated. The trial court sentenced Munguia and Rodriguez each to an indeterminate 25 years to life in state prison plus a determinate seven years.

On appeal, both Munguia and Rodriguez contend the trial court erred in failing to instruct the jury sua sponte with attempted involuntary manslaughter as a lesser included offense of attempted murder. Munguia also contends there is insufficient evidence to support the jury's verdicts on all four counts. Rodriguez similarly contends there is insufficient evidence to support the jury's verdicts on counts 2, 3 and 4. Finally, Rodriguez contends there is insufficient evidence to support the jury's findings that he committed counts 1, 2, and 3 for the benefit of, at the direction of, or in association with a criminal street gang. Both defendants join in the other's arguments on appeal. As we explain, we disagree with these contentions and affirm the judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND2

Munguia and Rodriguez were active members of an Hispanic criminal street gang known as the Edgemont Locos (EML). Founded in the mid to early 1980's, by 2006 EML was the largest Hispanic criminal street gang in Moreno Valley with over 40 active members. The core membership of EML attended Moreno Valley High School. However, in early 2006, a new criminal street gang, known was the Brown Pride Crew (BPC) was beginning to form. By September 2006, law enforcement began seeing BPC tagging in the Moreno Valley neighborhoods near Canyon Springs High School and also identified five or six people claiming to be part of BPC.

A. Incident of September 21, 2006

In September 2006, Manuel Ramos (Manuel) and his younger brother Ruben were students at Canyon Springs High School. Manuel and Ruben were also BPC members. On September 20, 2006, a friend of Manuel got into a fight and was thrown to the ground by another student during physical education class. As Manuel's friend lay on the ground, Rodriguez's younger brother Jonathan, a fellow student who was not involved in the fight, went through Manuel's friend's pockets and took his money and cellular phone. At the time, Jonathan, like his older brother Rodriguez, was an EML member. The next day, September 21, 2006, Manuel challenged Jonathan to a one-on-one fight in order to get even with Jonathan for stealing from his friend. The fight was scheduled to take place after 3:00 p.m. in a large area behind the high school known as "Poorman's Reservoir" or the "Wash" (the Wash).

That afternoon, Manuel went down to the Wash in order to fight Jonathan as planned. He was accompanied by his younger brother Ruben, his friend Michael Rodriguez (Michael) and two female acquaintances. Meanwhile, Manuel and Ruben's older brother Robert and their cousin Javier Hernandez (Javier), had driven to the school to pick up Manuel and Ruben. When Manuel and Ruben were not out front, Robert and Javier drove behind the school. After driving about halfway into the Wash, they located Manuel and Robert.

As he was walking in the Wash, Michael heard a whistle and a "bunch of guys came out of nowhere." Manuel also became aware of the large group of around 15 to 20 men and concluded that he and his friends had walked into a "trap." Michael described the men as "Mexican [¶] gangsters." He also stated the men were big and muscular with tattoos of words and pictures. Additionally, Ruben, Michael and Manuel each characterized the men in the group as being associated with EML. As the large group walked forward, they "threw" what appeared to be EML gang signs. The group was armed with a "whole bunch of guns," a machete, a sawed-off shotgun and baseball bats. As active EML members, both Munguia and Rodriguez were present in the group at the Wash.

Noticing they were outnumbered and unarmed, Manuel and his group decided not to fight and started walking away. As they were leaving, the larger group caught up with them and one of them yelled "come here you little bitches, why you fucking running?" Another EML member, Rueben Hernandez, also stepped forward and shouted: "This is Tiny from Edgemont Locos." Rodriguez then approached Manuel and said, "I heard you want to fight my brother[,]" referring to Jonathan. Feeling cornered and aware that his two younger brothers were scared, Robert jumped in front of Rodriguez as he was about to punch Manuel. Another member of the larger group also "started walking down on" Javier, challenging him to fight. Javier tried to avoid an altercation by responding, "I ain't gonna get down." Nevertheless, the two men started fighting.

During a break in the fight, someone threw "a big chunk of cement" at Robert, striking him on the head. The fight continued as Robert and Rodriguez wrestled on the ground. In the midst of this, Rodriguez took out a gun and shot Robert in the abdomen. Robert testified he only threw two punches before he was shot. Robert also testified that after being shot, he "lost [his] air," remembered sucking blood and "thought [he] was going to die right there."

Meanwhile, Hernandez, also known as "Tiny," hit Javier over the head with a baseball bat. The first hit caused Javier to fall to the ground face first, and then Javier was hit again after a matter of seconds. Ruben was also struck on the back of the head with a baseball bat.

After Rodriguez shot Robert, everyone ran away. Manuel and Ruben then tried to carry Robert back to Javier's car. As they were leaving, ambulances arrived and transported the injured individuals to the hospital. Robert underwent abdominal surgery and spent two weeks in the hospital recovering, Javier needed stitches to both sides of his head and Ruben was given medication for his head injury.

Riverside County Sheriff's Detective Lance Colmer (Detective Colmer) interviewed Robert, Ruben, Michael and Manuel, among others, in connection with the incident that occurred on September 21, 2006. Robert specifically told Detective Colmer that Rodriguez was the man who shot him. Ruben, Michael and Manuel also identified Rodriguez as the shooter. In addition, Ruben described the weapon as a "silver or chrome colored handgun [¶] partially wrapped in a white T-shirt." Lastly, when shown a photo lineup, Ruben and Robert recognized Munguia as being present at the Wash.3

B. Gang Allegation Evidence

Detective Colmer, a member of the special enforcement team gang unit at the Moreno Valley police station, testified as the prosecution's gang expert. Detective Colmer defined a criminal street gang as "an ongoing group or organization with three or more members having a common name, sign, or symbol, and that those members either individually or collectively commit a sustained pattern of criminal activity." He also testified to the following: in 2006, EML was the largest Hispanic criminal street gang in Moreno Valley; EML possessed several gang signs and symbols; EML's primary activities included narcotic sales, burglaries, tagging, vandalism and violent assaults; tagging is a form of graffiti used by gangs to mark their turf area and to write threats to rival gangs who might try to come into that area and gangs, including EML, control their turf or territory by intimidation and fear.

Detective Colmer further stated that Hispanic gangs are loose networks based on an individual's level of criminal sophistication and longevity in the gang. "Soldiers" put in work by committing crimes for the gang; the more work you put in, the more respect and status you gain within the gang. Detective Colmer also testified to several specific crimes committed by known EML members. First, EML member Gerardo Perez committed, and was subsequently convicted of, attempted murder on January 17, 2003. Second, EML member Herman Ramirez committed, and was subsequently convicted of, possession of a gun on March 24, 2005. Third, Munguia committed, and was subsequently convicted of, felony vandalism on November 18, 2005. Detective Colmer personally caught Munguia in the act of spray painting "EML" on a fence within the EML turf area. In all three incidents, the defendants were each convicted of section 186.22, committing the crime for the benefit of, at the direction of, or in association with a criminal street gang.

In addition, Detective Colmer testified that gang members identify their affiliation to a particular gang by particular tattoos and within each gang, members are identified by their nicknames or "monikers." Specifically, Detective Colmer indicated that Munguia's gang moniker was "Chava," he had several EML tattoos on his chest, back and ears and an October 25, 2006 search of Munguia's house revealed several items bearing symbols of the EML gang.

Detective Colmer indicated that Rodriguez had a similar EML tattoo on his elbow and his gang moniker was "Ziggy." The jury was further provided with several photos, including one collected from Rodriguez's home, depicting both Munguia and Rodriguez simultaneously holding up EML gang signs. Detective Colmer stated that the presence of these photos in Rodriguez's home tends to show continued affiliation or membership in the gang.

In early September 2006, Detective Colmer also came across both Munguia and Rodriguez in the EML turf area hanging out with fellow EML members. Based on the foregoing, Detective Colmer opined that both Munguia and Rodriguez were active EML members on September 21, 2006.

Detective Colmer testified that members of a gang are expected to participate in crimes with other members as well as support their fellow members in a fight. According to Detective Colmer, generally a gang benefits from arriving in a group, with weapons, and announcing its name because it allows the gang, by way of intimidation, to control its victims and those who witness the crime. Intimidation and the fear of retaliation dissuade victims and witnesses from identifying members of the gang, thereby protecting the members from criminal prosecution. Additionally, Detective Colmer stated that working together to commit a violent act in the name of the gang fosters gang loyalty and trust among members.

DISCUSSION

I

Sua Sponte Duty to Instruct on Lesser Included Offenses

Even in the absence of a request, the trial court is required to instruct on general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This requirement includes giving instructions on any and all lesser included offenses when the evidence raises a doubt as to whether all of the elements of the charged offense were present. (Ibid.) However, the trial court's duty to instruct sua sponte arises only when there is substantial evidence the defendant committed the lesser offense. (People v. Barton (1995) 12 Cal.4th 186, 201.) In this context, substantial evidence is evidence from which a reasonable jury could find the defendant is guilty only of the lesser offense, but not the greater. (People v. Breverman, supra, 19 Cal.4th at p. 162.) Any doubt as to the sufficiency of the evidence to warrant instructions on a lesser included offense should be resolved in favor of the defendant. (People v. Flannel (1979) 25 Cal.3d 668, 685, disapproved on other grounds in In re Christian S. (1994) 7 Cal.4th 768.)

A. Trial Court Was Not Required to Instruct the Jury with Attempted Voluntary Manslaughter

Munguia and Rodriguez both contend the trial court erred by failing to instruct the jury sua sponte with attempted voluntary manslaughter as a lesser included offense of attempted murder. We disagree.

"Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lack malice is guilty of the lesser included offense of voluntary manslaughter. (§ 192.) But a defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances; either when the defendant acts in a `sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in `unreasonable self-defense'—the unreasonable but good faith belief in having to act in self-defense [citations]." (People v. Barton, supra, 12 Cal.4th at p. 199.) Likewise, attempted voluntary manslaughter is a lesser included offense of attempted murder. (See People v. Thompkins (1987) 195 Cal.App.3d 244, 255-256.)

Munguia and Rodriguez claim there was sufficient evidence from which the jury could reasonably conclude Rodriguez acted either in the heat of passion or imperfect self-defense, warranting instructions on attempted voluntary manslaughter.

A defendant attempts to kill in the heat of passion where the defendant's "reason was actually obscured as a result of a strong passion aroused by a `provocation' sufficient to cause an `"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."' [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 163.)

The heat of passion requirement for attempted voluntary manslaughter has both a subjective and an objective component. The defendant must actually, subjectively kill under the heat of passion. However, the circumstances giving rise to this heat of passion are viewed objectively. No defendant may set up his own standards of conduct and justify or excuse himself because his passions were aroused, unless the jury believes the facts and circumstances were sufficient to arouse the passions of an ordinary reasonable person. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)

Although no specific type of provocation is required (People v. Berry (1976) 18 Cal.3d 509, 515), the provocation which incites the defendant to act in the heat of passion must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Manriquez, supra, 37 Cal.4th at p. 584.) Further, a defendant may not provoke a fight, become the aggressor, and without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting it was accomplished upon a sudden quarrel or in the heat of passion. A claim of provocation cannot be based on events for which the defendant is "culpably responsible." (People v. Johnston (2003) 113 Cal.App.4th 1299, 1312-1313; People v. Hoover (1930) 107 Cal.App. 635.)

Alternatively, the doctrine of "imperfect self-defense" reduces an attempted killing from attempted murder to attempted voluntary manslaughter when the defendant actually, but unreasonably believes it was necessary to defend himself or herself from imminent peril or great bodily injury. (In re Christian S., supra, 7 Cal. 4th at pp. 773, 783 [defendant was physically and verbally threatened by victim and his friends]; see also People v. Barton, supra, 12 Cal.4th at pp.199-200 [defendant unreasonably believed unarmed victim was armed and attempting to attack him].) To require instruction on imperfect self-defense, there must be evidence from which the jury could find appellant actually had such a belief. (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.)

Here, there was no evidence in the record to support the claim that Rodriguez subjectively or objectively acted under the heat of passion. Rather, the defense theory at trial was that Rodriguez was not the person who shot Robert. Rodriguez presented no evidence that he subjectively experienced an extreme emotional reaction that would suggest the shooting was the result of sudden quarrel or heat of passion. Similarly, the record discloses no evidence that Rodriguez was sufficiently and objectively provoked by the victim. To the contrary, the evidence demonstrated that as Robert and his brothers attempted to flee, the larger group caught up and started taunting them. Robert, the victim, testified he tried to leave but when the larger group would not let him go, he jumped in. Additionally, Ruben told Detective Colmer the fight started when Rodriguez walked up to Manuel and said, "I heard you wanted to fight my brother." Since Rodriguez himself provoked the fight with Robert, he cannot claim the shooting was the result of heat of passion.

Similarly, there was no evidence to support the theory that Rodriguez had a good faith belief that he was in danger of death or greatly bodily injury. No witness testified Rodriguez fired out of fear or testified Rodriguez appeared fearful. No evidence was presented that Rodriguez felt threatened or that Rodriguez believed that Robert was armed. Rather, the evidence showed that Rodriguez and other EML members were armed with guns, bats and a machete while the victims were unarmed. The evidence also showed Rodriguez and his group severely outnumbered the victims. Absent a showing of actual belief in the need to defend himself from death or great bodily injury, Rodriguez cannot claim the shooting was the result of imperfect self-defense.

Consequently, the trial court did not err in declining to instruct the jury on the lesser included offense of attempted voluntary manslaughter. Nevertheless, even if we found the trial court erred in failing to instruct the jury with voluntary manslaughter, that error would be harmless.

B. Harmless Error

"[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson." (People v. Breverman, supra, 19 Cal.4th at p. 178.) In applying the Watson standard, we must determine whether it is reasonably probable that the result would have been more favorable to Munguia and Rodriguez had the error not occurred. (See People v. Watson (1956) 46 Cal.2d 818, 836.)

Based on our review of the record, we conclude it is not reasonably probable Munguia and Rodriguez would have obtained a more favorable outcome had the trial court instructed the jury with voluntary manslaughter.

"[I]n some circumstances it is possible to determine that although an instruction was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support [such] a finding . . . has been rejected by the jury." (People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled on another ground in People v. Flannel, supra, 25 Cal.3d at pp. 684-685, fn. 12, and in People v. Breverman, supra, 19 Cal.4th at p. 149.)4

The jury was instructed that attempted murder requires express malice, the intent to unlawfully kill another human being. Thus, when the jury found Munguia and Rodriguez guilty of attempted murder, under the prosecution's alternative theories, they must have found either: (1) Munguia, as a direct perpetrator, had the specific intent to unlawfully kill Robert, and Rodriguez was an aider and abettor of that crime under the natural and probable consequences doctrine; or (2) Rodriguez, as a direct perpetrator, had the specific intent to unlawfully kill Robert, and Munguia was an aider and abettor of that crime under the natural and probable consequences doctrine. Therefore, by convicting them, the jury necessarily resolved the factual question of whether the shooter acted with malice when he shot Robert.

Further, based on extensive evidence, the jury found true that Rodriguez personally used a firearm in the commission of count 1, the attempted murder of Robert. Specifically, four witnesses present at the Wash, including the victim Robert, identified Rodriguez as the shooter. Also, as discussed ante, the defense presented no evidence on heat of passion or imperfect self-defense. Under these circumstances, and due to the lack of evidence negating malice, we conclude it is not reasonably probable Munguia and Rodriguez would have obtained a more favorable outcome had the trial court instructed the jury sua sponte with attempted voluntary manslaughter.

II

Sufficiency of the Evidence

Munguia and Rodriguez assert numerous sufficiency of the evidence arguments.

A. Standard of Review

We review challenges to the sufficiency of the evidence to support a conviction under the familiar substantial evidence standard of review. Under this standard we examine the entire record in the light most favorable to the trial court decision and draw all reasonable inferences in support of that decision. We do not evaluate the credibility of witnesses, nor do we reweigh the evidence. Rather, our task is to determine if there is enough substantial evidence from which a reasonable jury could find the elements of the crime to have been proved beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Towler (1982) 31 Cal.3d 105, 117-119.)

With this standard of review in mind, we turn to appellants' particular sufficiency contentions.

B. Munguia's Felony Assault Convictions are Supported by Substantial Evidence

During the fight, both Javier and Ruben were struck over the head with a baseball bat. As a result, Munguia was convicted of two counts of felony assault with a deadly weapon (counts 2, 3). Munguia contends that his assault convictions are not supported by substantial evidence because the prosecution presented no evidence that Munguia possessed a weapon, made any verbal threats, verbally referenced his gang or used physical violence against anyone. This contention lacks merit.

Section 245, subdivision (a)(1), provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished . . . ." "Assault" is defined in section 240 as "an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another." Additionally, any person who aids and abets the commission of any crimes shares the guilt of the actual perpetrator of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.)

"The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged, . . . An aider and abetter on the other hand, must `act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.] The jury must find `the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense.' [Citation.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123.)

Therefore, in order to convict Munguia as an aider and abettor, the jury had to find that he acted (1) with knowledge of the unlawful purpose of the perpetrator, (2) with the intent or purpose of committing, facilitating or encouraging the commission of the crime, and (3) by act or advice aided, promoted, encouraged or instigated the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) However, since there is rarely direct evidence of a defendant's intent, such intent is usually derived from all circumstances of the attempt, including the defendant's actions. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)

While mere presence at the scene is not sufficient to prove aiding and abetting, it is a factor which can be considered, together with other conduct, to support an inference that the person is there to assist and encourage others to commit a crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) Other factors to be considered by the trier of fact in determining whether one is an aider and abettor include failure to take steps to prevent the commission of the crime, companionship, flight and conduct before and after the crime. (People v. Jones (1980) 108 Cal.App.3d 9, 15.)

Here, Munguia's assault convictions are supported by substantial evidence. On September 21, 2006, Manuel challenged Jonathan to a fight afterschool in the Wash. The record shows Munguia and over 15 fellow EML members gathered in the Wash to back up Jonathan. The record also demonstrates that the EML members' actions were planned. They waited until Manuel and his group arrived and then emerged out of the trees upon the call of a whistle. Manuel also told the police he immediately knew he had fallen into a "trap" as the EML members appeared out of nowhere, armed with guns, baseball bats and a machete. When Manuel and his group attempted to leave, the EML members followed them and subsequently hit Javier and Ruben over the head with the baseball bats. From the evidence, the jury could reasonably infer that Munguia was one of the EML members who emerged from the trees and pursued the other group until the time the assaults took place. The jury could also infer that by so doing, Munguia was at the Wash to assist or encourage others to commit the assaults.

Additionally, the jury heard the testimony of gang expert Detective Colmer. Based on extensive evidence, Detective Colmer opined that Munguia was an active EML member on September 21, 2006. He testified that gang members are expected to participate in crimes with other members as well as back each other up in fights. Such activities foster gang loyalty and trust among members. Detective Colmer also testified that gangs seek to maintain their control through intimidation. The more members present at the Wash, the more intimidating the group will be. Also, because Manuel was perceived as a member of a rival gang, BPC, the jury could infer it was especially important for EML to maintain its control in the area.

Based on the evidence, the jury could reasonably find (1) Munguia knew his fellow EML members intended to inflict injury on the members of the other group based on the planned attack; (2) Munguia went to the Wash in order commit, facilitate or encourage such acts; and (3) Munguia's presence at Wash aided, promoted, or encouraged his fellow gang members to commit the acts. Therefore, we conclude Munguia's assault convictions are supported by substantial evidence.

C. Rodriguez's Felony Assault Convictions are Supported by Substantial Evidence

Similarly, Rodriguez contends the evidence was insufficient to support his convictions of assault (counts 2, 3). We disagree.

Here, Rodriguez's assault convictions are supported by substantial evidence. Detective Colmer testified that Rodriguez was an active EML member on September 21, 2006. The record also indicates Rodriguez and over 15 fellow EML members gathered in the Wash to back up Jonathan and carry out a planned attack. From this evidence, as well as Detective Colmer's testimony concerning gang culture, a reasonable jury could infer Rodriguez had knowledge of the perpetrators' criminal purpose.

Additionally, when Manuel and his group attempted to leave, the EML members followed them. Rodriguez played a leading role in the instigation of the fight. Rodriguez was not only present at the Wash, but he also actively participated in the fighting. If Rodriguez did not join in the fighting, he would lose the trust and respect of his fellow members. In light of this, the jury could reasonably conclude Rodriguez went to the Wash in order commit, facilitate or encourage the assaults and Rodriguez's actions, by instigating the fight, aided, promoted or encouraged his fellow gang members to commit the assaults. Therefore, Rodriguez's assault convictions are supported by substantial evidence.

D. Munguia's Attempted Murder Conviction is Supported by Substantial Evidence

In addition to the assaults that occurred during the fight, Robert was also shot in the side. The jury was instructed that under the natural and probable consequences doctrine, if the evidence establishes aiding and abetting of one crime, the target crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime. The jury subsequently found Munguia guilty of attempted murder (count 1). Munguia contends his attempted murder conviction is not supported by substantial evidence. We disagree.

"Liability under the natural and probable consequences doctrine `is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 920.) To be "reasonably foreseeable," the charged offense must have been a possible consequence which might have been contemplated. (Ibid.) Whether the charged offense was "reasonably foreseeable" is a factual question to be resolved by the jury based on the circumstances of the individual case. (Ibid.)

In People v. Medina, supra, 46 Cal.4th 913 the California Supreme Court recently affirmed a murder a conviction under the natural and probable consequences doctrine on facts similar to those presented here. There, three members of the Lil Watts gang engaged in a fistfight at a party with a rival gang member. The rival gang member was eventually able to get into his car, but as he was trying to drive away one of the Lil Watts members shot and killed him. All three Lil Watts members were convicted of murder. The Supreme Court affirmed the convictions of those who did not fire the gun, concluding that a "rational trier of fact could have found that the shooting of the victim was a reasonably foreseeable consequence of the gang assault in this case." (Id. at p. 922.)5 The court also found that prior knowledge that a fellow gang member is armed and prior gang rivalry are not necessary to support a defendant's murder conviction as an aider and abettor. (Id. at p. 921.)

Here, the record similarly supports the jury's implicit finding that the shooting was a natural and probable consequence of the assaults. First, EML maintains its control in Moreno Valley through intimidation and fear. Second, EML was a criminal street gang whose primary activities include violent assaults. Third, Munguia's fellow EML members were armed with guns, bats and a machete. Fourth, Manuel, a rival gang member, challenged Jonathan to the initial fight. Based on the foregoing, a jury could find it reasonably foreseeable that an EML member would escalate the confrontation to a deadly level. (See People v. Medina, supra, 46 Cal.4th at p. 923.) Thus, Munguia's attempted murder conviction was supported by substantial evidence.

5. Munguia's Active Gang Participation Conviction is Supported by Substantial Evidence

In order to find a defendant guilty of actively participating in a criminal street gang, under section 186.22, subdivision (a), the prosecution must show that the defendant actively participated in a criminal street gang in a sense that is more than nominal or passive, with knowledge that other members engage in or have engaged in pattern of criminal gang activity and the defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.) Further, a defendant can willfully assist, further or promote felonious criminal conduct by members of the gang either by directly and actively committing a felony offense or aiding and abetting a felony offense. (People v. Salcido (2007) 149 Cal.App.4th 356, 363-364.)

Here, Munguia contends the prosecution failed to show that he willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang. We disagree.

At trial, the jury convicted Munguia of two counts of assault with a deadly weapon. As we discussed ante, these convictions were supported by substantial evidence. Given Munguia's presence at the Wash, the evidence that the EML members appeared from the trees at the call of a whistle, the evidence that the EML members pursued the victims as they attempted to leave and Detective Colmer's expert testimony regarding gang culture, a reasonable jury could find that Munguia aided and abetted the assaults. Further, Detective Colmer testified to his opinion that Munguia was an active EML member based on, among other things, in November 2005 Munguia was caught spray painting "EML" on a fence within the EML turf area and convicted of felony vandalism with a gang enhancement. Therefore, we conclude there is substantial evidence to support the jury's implicit finding that Munguia willfully assisted, furthered or promoted felonious criminal conduct by aiding and abetting the felony assaults. In light of this, we further conclude Munguia's active gang participation conviction is supported by substantial evidence.

E. Rodriguez's Active Gang Participation Conviction is Supported by Substantial Evidence

Similarly, Rodriguez contends the evidence was insufficient to support his conviction under section 186.22, subdivision(a), for active participation in a criminal street gang. This contention is without merit.

Detective Colmer, a gang expert familiar with EML, opined Rodriguez was an active EML member on September 21, 2006. He based his opinion on the evidence showing Rodriguez had EML gang tattoos and had the gang moniker" Ziggy." Rodriguez also had photos in his home where he was holding up EML gang signs with other EML members. Detective Colmer also observed Rodriguez hanging out with other members on EML turf a couple weeks before the fight. This evidence provides substantial support for the jury's implied finding Rodriguez's participation in the gang was more than nominal or passive.

In addition, Detective Colmer testified gangs control their turf or territory through intimidation and fear. Specifically, gang members are expected to participate in crimes with their fellow members and support each other in a fight. Also, members gain respect and status within the gang by committing crimes. Based on this evidence, a reasonable jury could conclude that Rodriguez knew the gang's members engage in or have engaged in a pattern of criminal activity.

Rodriguez not only directly committed felonious criminal conduct, by shooting Robert, but he also aided and abetted assaults on Javier and Ruben. These crimes were committed in the presence of other gang members and are typical of EML's primary activities. Therefore, we conclude a reasonable jury could find Rodriguez willfully, promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (See People v. Salcido, supra, 149 Cal.App.4th at pp. 363-364.)

As there is substantial evidence to support each element of the offense, we thus conclude Rodriguez's active gang participation conviction is supported by substantial evidence.

F. Rodriguez's Gang Enhancements are Supported by Substantial Evidence

To establish the truth of a criminal street gang enhancement allegation under section 186.22, subdivision (b)(1), the prosecution must prove two elements: (1) that the crime for which the defendant was convicted had been committed for the benefit of, at the direction of, or in association with any criminal street gang, and (2) the defendant committed the crime with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Gardeley (1996) 14 Cal.4th 605, 616-617; see also People v. Williams (2009) 170 Cal.App.4th 587, 625.) Rodriguez contends the prosecution failed to present sufficient evidence to support the jury's findings on either of these two essential elements. We disagree. Because subdivision (b) shares the same "promote, further or assist" language as subdivision (a), discussed ante, we interpret it similarly.

The prosecution may rely on expert testimony in proving the elements of a gang enhancement allegation. (People v. Gardeley, supra, 14 Cal.4th at pp. 617-620; People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) An expert's testimony is admissible concerning the existence, size, or composition of a gang; an individual's membership in, or association with, a gang; the primary activities of a specific gang; the motivation for a particular crime; whether a crime was committed to benefit or promote a gang, and how; rivalries between gangs; gang-related tattoos; and gang colors and attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew).) However, a gang expert's testimony alone is insufficient to support a finding that a crime is gang related. "`[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' [Citation.]" (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.)

The first element of section 186.22, subdivision (b)(1), that Rodriguez acted "for the benefit of, at the direction of, or in association with" a gang is supported by substantial evidence. Detective Colmer testified that in 2006 EML was the largest Hispanic criminal street gang in Moreno Valley. However, a new Hispanic gang, BPC, was starting to form in the area. The record reveals that over 15 EML members, including Rodriguez, gathered at the Wash, throwing EML gang signs and displaying EML gang tattoos. One member identified himself according to his moniker. This same member was identified as the man who hit Javier over the head with a baseball bat. The charged crimes were typical of EML's primary activities and each was committed in the presence of other gang members. Given this evidence and Detective Colmer's testimony regarding gang culture, the jury could also infer the crimes were committed to engender fear and maintain control, both for the benefit of the gang.6

The second element of section 186.22, subdivision (b)(1), that Rodriguez committed the crime with the specific intent to promote, further, or assist in any criminal conduct by gang members is also supported by substantial evidence. "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.]" (People v. Villalobos (2006) 145 Cal.App.4th 310, 322; see also People v. Gardeley, supra, 14 Cal.4th at p. 619.) Further, the defendant's own criminal activity can satisfy this element. (See People v. Hill (2006) 142 Cal.App.4th 770, 774.) Rodriguez's own actions qualified as the gang-related criminal activity he was promoting. He not only brought a gun to the Wash, but he also instigated and directly participated in the fight. Therefore, for reasons already discussed, the jury could reasonably conclude Rodriguez had the requisite specific intent to promote, further, or assist criminal conduct by gang members.

DISPOSITION

The judgment of conviction is affirmed.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise specified.
2. The testimony of the victims in this case differed substantially from their previous statements to law enforcement agents. Two of the victims were in custody at the time of trial based on their failure to appear in response to subpoenas. Evidence was presented by the prosecution that the victims did not wish to be "rats," feared retaliation, and generally "would not" remember much of anything. Discussion of certain facts relating to the specific claims of error is reserved for analysis in those sections, We state the facts in a light most favorable to the judgment. ( (2002) , 1427.)
3. At trial, all four either denied or did not recall making these statements to Detective Colmer.
4. See also (2004) , 97 [finding "[a]ny error in failing to instruct on second degree implied-malice murder as a lesser included offense of premeditated and deliberate first degree murder was harmless, because the factual question posed by the omitted instruction necessarily was resolved unfavorably to Coffman under the instructions on the special circumstance allegations, which required a finding of intent to kill."]
5. See also (2001) , 10-11 [shooting during gang-related fistfight was a natural and probable consequence of fistfight]; (1994) , 1376 [defendant's punching of victim during gang confrontation foreseeably led to fatal shooting of victim by fellow gang member]; (1979) , 226 [defendant's aiding and encouragement of battery foreseeably led to shooting of victim by fellow gang members].
6. We note the prosecution presented Detective Colmer with the following hypothetical: "I want to ask you to assume that a fight occurs at a local high school. And during that fight an item, possession, is taken from one individual. A second individual hearing about this fight challenges the person who took the possession to a one-on-one fist fight. That fight is supposed to occur the next day. [¶] The individual who makes the challenge appears at the fight and, in addition to that, the individual who took possession now calls several members of the same gang to that fight. Those members are wearing, displaying their tattoos with their shirt off, someone from within that same group calls out—that he gives his moniker and calls out that he is there from a particular gang. There are weapons used. Numerous weapons. There are guns. There are baseball bats. There's a sawed-off shot gun, and there's a machete. And I want you to assume that the person who brought these individuals is younger and he has now called out his older members of the gang to come to the fight. [¶] I want you to assume that members of the group who initially issued or displayed the challenge start to leave but do not when they are called `bitches.' [¶] . . . [¶] [Finally, as] the fight itself occurs, a gun is produced by the side who has called out their gang name and someone from the other side is shot." The prosecutor asked whether the crime was for the benefit and at the direction of the gang and Detective Colmer testified that it was. Although arguably objectionable under 103 Cal.App.4th at page 647, Rodriguez did not object to the hypothetical. Thus, contrary to Rodriguez's argument the expert's response to the hypothetical, that the crime was for the benefit and at the direction of the gang, was substantial evidence. However, even assuming error, the error was in no sense prejudicial. Each of the facts in the hypothetical was based on evidence presented at trial; moreover, expert opinion was not necessary likely to materially influence the powerful inference of gang activity that arises from the facts set forth in the narrative.

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