PEOPLE v. GONZALES

No. C070345.

THE PEOPLE, Plaintiff and Respondent, v. ANGELO MARCUS GONZALES et al., Defendants and Appellants.

Court of Appeals of California, Third District, San Joaquin.


NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

MAURO, J.

A jury convicted defendants Angelo Marcus Gonzales and Lionzo Angel Villarreal, Jr., of first degree murder, shooting into an occupied vehicle, and active participation in a criminal street gang. It also found true numerous gang and firearm enhancement allegations. In addition, the jury convicted Villarreal of assault with force likely to produce great bodily injury.

The trial court sentenced both defendants to life in prison without the possibility of parole for the murder, plus 25 years to life for the gang enhancement. The trial court also sentenced Villarreal to six years for the assault conviction. The court imposed various fines and fees.

In their appellants' opening briefs, Gonzales and Villarreal asserted (1) there was insufficient evidence of premeditation or deliberation to support first degree murder, and insufficient evidence to support Villarreal's conviction for murder in any degree; (2) the trial court erred in admitting a hearsay statement; (3) the trial court should have declared a mistrial based on juror misconduct; (4) the trial court committed instructional error; and (5) the trial court improperly imposed victim restitution and parole revocation fines. In addition, Villarreal argued (6) his six-year sentence for assault should have been stayed.

Villarreal made two requests for supplemental briefing after the case was fully briefed, and we granted both requests. In his first supplemental brief, Villarreal claimed (7) the trial court erred in denying Villarreal's motion for new trial based on ineffective assistance of counsel. And in his second supplemental brief, Villarreal argued (8) there is insufficient evidence of gang association and street terrorism, and (9) that the gang expert testimony violated his constitutional right to confrontation. Gonzales joined in arguments pertinent to him, the Attorney General filed a supplemental respondent's brief, and Villarreal filed a supplemental reply brief.

We conclude (1) substantial evidence supports the convictions; (2) the trial court did not abuse its discretion in admitting the challenged statement for a nonhearsay purpose; (3) removing Juror No. 5 was a sufficient response to misconduct and did not require a mistrial; (4) the trial court did not commit prejudicial instructional error; (5) we will affirm the victim restitution fines but direct the trial court to correct the abstracts of judgment to omit the $10,000 parole revocation fines because they were not orally pronounced and are not permitted for life without parole; (6) we will modify Villarreal's judgment to stay his six-year sentence for assault because the assault facilitated the murder; (7) Villarreal has not established ineffective assistance of counsel; (8) substantial evidence supports gang association and street terrorism; and (9) the gang expert testimony did not result in a prejudicial violation.

We will modify the judgments and affirm the judgments as modified.

BACKGROUND

On the one-year anniversary of Vicente Salazar's murder, his family and friends gathered for a vigil on the sidewalk where he died in Stockton. Salazar had been shot in the head by members of the Sureño gang. A Stockton gang violence suppression unit officer testified that Salazar had been a member of the Norteño street gang. Salazar's mother asked her son's friends not to wear gang colors to the vigil because she had seen cars driving by earlier vigils yelling derogatory comments and once even brandishing a paint gun. She took a framed picture of her son to the vigil.

Villarreal and Gonzales attended the anniversary vigil. Both acknowledged being Norteños. Villarreal's 11-year-old nephew, Carlos, had noticed at an earlier vigil that a particular car kept circling and looking at the mourners, so when he saw the car that night just before 8:00 p.m. and noticed the driver staring and "looking mad," he told Villarreal, who took off in the direction of the car, intending to confront the driver. Carlos said he believed the man in the car might be a Sureño. The car parked by a liquor store.

Gonzales said he followed a group of six to eight men from the vigil across the street toward the liquor store, intending nothing more than to be "nosey." A witness who drove by the area before the shooting observed the group of men crossing the street and described them as being in a hurry and looking "sneaky." Several of those present at the vigil were witnesses at trial; although many denied gang membership, they did acknowledge having Norteño tattoos.

Security cameras at the liquor store recorded what happened next. A man later identified as Villarreal walked up to the driver's door of the parked car and smashed a beer can into the window. He yanked the door open and started to reach inside the car. A bystander, who had just parked his truck nose-to-nose with the victim's car, testified that he saw the can being smashed on the window and it seemed to him the driver was initially reluctant to leave his car but was about to fight with the man who opened his door. Before the victim could exit the car, however, two shots rang out. The victim managed to shut his door, back up enough to clear the witness's truck, and drive several hundred feet before crashing into a telephone pole.

When police arrived, the victim was kneeling beside his car, clutching his chest. Shortly after arriving at the hospital, he bled to death from a gunshot wound. A second bullet had struck his left wrist.

Gonzales admitted firing the shot that killed the victim. A police officer testified that the victim was a member of the Playboy Sureños; his status as a documented Sureño was undisputed at trial. One of the men arrested for Salazar's murder was also a Playboy Sureño. Villarreal kept an "inmate detail record" for that man in his nightstand drawer. Gonzales said he carried a gun for protection because there was a lot of gang activity in his neighborhood. He said when he noticed the car moving backward toward him, he fired the gun to scare the driver, not to hit him. Gonzales then took off running, learning two days later that the shots had been fatal. Villarreal said he merely intended to fight with the man who had frightened his nephew, and he ran away when he heard the unexpected gunshots.

A gang expert testified at trial that Norteño and Sureño gang members in Stockton readily recognize and distinguish gang affiliation based on distinctive clothing, hairstyles and grooming. He said disrespect from a rival gang member demands a violent response and that ignoring disrespect is a sign of weakness. He said gang members see themselves as family and when one of them gets into a fight, the member expects back-up from fellow gang members, knowing the gang will impose harsh discipline on members who fail to assist. The expert also said talking to police about gang matters, or cooperating with courts in prosecuting gang crime, could lead to gang-inflicted punishment ranging from severe beatings to death, so it is difficult to get people to aid police investigations into gang violence.

The gang expert further testified that he had reviewed police field identification cards, tattoos and personal belongings of both defendants before concluding they were Norteños. He identified Norteños as a criminal street gang active in Stockton since 1980. In addition, he described two particular robberies committed by members of Villarreal's subset, Pilgrim Street, concluding the crimes were by and for the benefit of Norteños and typical of area Norteño gangs. He said the shooting of a Sureño across the street from a place Norteños had gathered to mourn an earlier gang murder was a crime committed for the benefit of the gang, meant to show "if you take one of ours, we are going to take one of yours" and also to show the community that disrespect of Norteños would not be tolerated. He said the shooting also benefitted the individual gang members who would be perceived by their peers as having stepped up to show gang pride and a willingness to stop the enemy from repeated acts of disrespect, in this case the mean looks — the "mean mugging" or "mad dogging" — to which Villarreal reacted.

The jury convicted Gonzales and Villarreal of first degree murder, shooting into an occupied vehicle, and active participation in a criminal street gang. It also found true numerous gang and firearm enhancement allegations. In addition, the jury convicted Villarreal of assault with force likely to produce great bodily injury. The trial court sentenced them to life in prison without the possibility of parole for the murder, plus 25 years to life for the gang enhancement. The trial court also sentenced Villarreal to six years for the assault conviction. The trial court imposed various fines and fees.

Additional facts are set forth in the discussion as relevant to the contentions on appeal.

DISCUSSION

I

Gonzales and Villarreal contend there was (A) insufficient evidence of premeditation or deliberation to support first degree murder, and (B) insufficient evidence to support Villarreal's conviction for murder in any degree.

A

We begin with the claim that there is insufficient evidence of premeditation or deliberation to support first degree murder. A challenge to the sufficiency of the evidence supporting a criminal conviction requires us to view the record in a light most favorable to the conviction and to presume the existence of all facts in support of the verdict that the jury could have reasonably inferred from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) We do not evaluate whether guilt was established beyond a reasonable doubt and we will not set aside the judgment unless it clearly appears that "upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "Simply put, if the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Farnam (2002) 28 Cal.4th 107, 143.)

Gonzales and Villarreal describe the shooting as "a split-second explosion of violence." Gonzales argues the shooting was inconsistent with premeditation and deliberation and Villarreal notes there was no direct evidence they "communicated their intentions to one another."

Gonzales directs our attention to the factors set out in People v. Anderson (1968) 70 Cal.2d 15, for guidance on the sufficiency of premeditation evidence for first degree murder. That case held premeditation could be established by proof of (1) planning activity, (2) motive to kill, and (3) manner of killing. (Id. at pp. 26-27.) The California Supreme Court has since "emphasized that [People v. Anderson's] guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight." (People v. Halvorsen (2007) 42 Cal.4th 379, 420.) A senseless and random but premeditated killing supports a verdict of first degree murder and will be upheld on appeal if there is evidence of a motive to kill coupled with evidence of planning or a manner of killing suggesting a preconceived plan. (People v. Edwards (1991) 54 Cal.3d 787, 814.) Moreover, "a murder is of the first degree no matter how quickly the act of killing follows the ultimate formation of the intention if that intention has been reached with deliberation and premeditation." (People v. Thomas (1945) 25 Cal.2d 880, 900.)

Villarreal said he knew Gonzales only by name although he sometimes saw him with Villarreal's brother, Albert. Gonzales admitted he was a good friend of Albert's, but said he had only seen Villarreal "from time to time" because Villarreal had been incarcerated. Villarreal's sister, Selena, also knew Gonzales and had dated Gonzales's brother. The defendants were both at a family barbecue at the Salazar home immediately before the vigil. Both were Norteños. There had been mounting gang tension between Norteños and Sureños at earlier vigils at the same location.

A witness who observed the shooting from the other side of the victim's car in the approximate line of fire testified that the "second guy" (Gonzales) moved behind the first (Villarreal). The witness said immediately after the car door opened, the shooter fired and both men ran away in the same direction. That sequence of events was confirmed on video recordings shown to the jury. A few days after the shooting, Villarreal contacted Gonzales and arranged a meeting, after which the two drove to San Jose together to spend a few days at the home of Villarreal's sister. While they were gone, Gonzales sent a text message saying he had left with "his friend," a reference he acknowledged at trial was to Villarreal. Villarreal's girlfriend later drove the defendants back to Stockton.

Villarreal argues the prosecutor convinced the jury to convict solely on the basis of gang membership by "invoking the stereotype of the gangster-monster." We disagree. Although there was no direct evidence of a specific plan between the defendants to kill the victim and escape, there was the following substantial evidence of planning, motive and method: Defendants were Norteño gang members at a vigil for a fallen Norteño killed by rival Sureños; Norteños can recognize and distinguish rival Sureños; gang members believe disrespect of fellow gang members requires a violent response, and they expect fellow gang members to back them up; Gonzales carried a gun; Villarreal and Gonzales knew each other and Gonzales described Villarreal as his friend; vigil attendees were aware of drive-by taunting at prior vigils; Villarreal's nephew informed him of the victim and his car and believed the victim was a Sureño; Villarreal approached the victim; a group of other vigil attendees, including Gonzales, also approached the victim, acting "sneaky;" the victim was a Playboy Sureño; Villarreal smashed a beer can into the car window and pulled the door open; Gonzales fired more than one shot at the victim, striking the victim in the chest and wrist; and Villarreal and Gonzales ran away together. In addition, Villarreal's nephew testified about the apparent disrespect the victim showed to those attending the vigil.

Based on those facts, there was substantial evidence that defendants had an expectation and a plan to respond to disrespect with violence, including murder; they were motivated to carry out the plan based on their gang affiliation; and they did carry out the plan through the method of a group sneak attack, with Villarreal striking with a beer can and opening the car door, Gonzales firing his weapon, and the two of them running away together. The evidence supports the convictions for first degree murder.

B

We turn to the claim that there is insufficient evidence to support Villarreal's conviction for murder in any degree.

One can be guilty of a crime by aiding and abetting it or by participating in a different crime when the charged crime was a natural and probable consequence. The elements of aiding and abetting are set out in People v. McCoy (2001) 25 Cal.4th 1111. An aider and abettor is liable only if he has the requisite mental state when he committed the crime, but he is liable not only for the crime he intended but also for any offense that was a natural and probable consequence of that crime. (Id. at p. 1117.)

In supplemental briefing, Villarreal pointed out that, following his conviction, the California Supreme Court held there can be no liability for first degree murder under the natural and probable consequences doctrine alone. (People v. Chiu (2014) 59 Cal.4th 155, 165-166 (Chiu).) In this case, however, the prosecution presented two alternative theories for Villarreal to be held liable: the natural and probable consequences doctrine and also direct liability as an aider and abettor. Significantly, the jury instructions here required the jury to decide between first and second degree murder before considering the natural and probable consequences doctrine and the jury found Villarreal guilty of first degree murder with special circumstances under Penal Code section 190.2, subdivision (c) [a "person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree" by enumerated special circumstance]. Among the enumerated special circumstances is intentional killing "while the defendant was an active participant in a criminal street gang" and "the murder was carried out to further the activities of the criminal street gang." (Pen. Code, § 190.2, subd. (a)(22).)

Under Chiu, we must reverse Villarreal's first degree murder conviction unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that Villarreal directly aided and abetted the premeditated murder. (Chiu, supra, 59 Cal.4th at p. 167.) Here, the jury found Villarreal guilty of first degree murder on the theory that although he was not the actual killer, he directly aided and abetted the murder with the intent to kill because he was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. There is sufficient evidence to support the first degree murder conviction, and as we explain in Part IV(I) of this opinion, any error in instructing on the natural and probable consequences doctrine was harmless. Viewing the evidence in a light most favorable to the judgment, a reasonable jury could have believed Villarreal and Gonzales were fellow gang members who worked together in tandem to kill the man who disrespected them, with Villarreal beginning the attack and Gonzales finishing it.

II

Defendants next contend the trial court erred in admitting a hearsay statement.

A witness heard the gunshots from a nearby restaurant. She testified she saw a car crash into a telephone pole and called 911. She said she also saw two females on the sidewalk, the older one carrying a picture. The witness denied hearing what the females said until her recollection was refreshed with a copy of her statement to police. She then testified, over objection, that the older of the two women seemed excited that "something was taken care of." The witness said she heard the woman carrying the picture say "justice was done or something similar."

Vicente Salazar's mother testified she carried a framed photograph of her son at the vigil and was accompanied by her niece. She acknowledged hearing shots and walking on the sidewalk, but she denied seeing the shooting or talking to anyone about it as she walked.

Villarreal argues the mother's statement that "justice was done" was inadmissible hearsay offered to prove the truth of the matter asserted, that defendants killed the victim in the car to avenge the murder of Vicente Salazar. The Attorney General counters that the statement was admissible for the nonhearsay purpose of explaining the witness's lay opinion that the older female seemed excited that "something was taken care of." The Attorney General adds that the statement was also admissible under the state of mind exception to the hearsay rule.

A lay witness may offer an opinion if it is rationally based on her own perception and if it is helpful to a clear understanding of her testimony. (Evid. Code § 800; People v. Farnam, supra, 28 Cal.4th at p. 153.) Perceptions about another person's attitude or demeanor are sufficiently within common experience to support explanatory testimony about those perceptions and their foundations. (Id. at pp. 153-154.) In this case, the "justice was done" statement was offered by the testifying witness to explain her prior assertion that the older woman carrying a photograph seemed "excited" after the shooting and car crash. The statement was admissible for the nonhearsay purpose to explain the witness's perception and lay opinion.1

Even if the statement had been offered for the truth of the matter asserted, Salazar's mother made the statement immediately after the shooting and car crash, and thus the statement fell within the state of mind exception to the hearsay rule. (Evid. Code, § 1250, subd. (a)(1) [evidence offered "to prove the declarant's state of mind, emotion, or physical sensation at that time"].) There was no inherent lack of trustworthiness in the testimony and no error when the trial court overruled the defense objection to it. (See People v. Smith (2003) 30 Cal.4th 581, 629 [statement reflecting state of mind may be made inadmissible under Evidence Code section 1252 if circumstances show lack of trustworthiness].

III

In addition, defendants argue the trial court should have declared a mistrial based on juror misconduct.

A

At the beginning of the second week of trial, Juror No. 5 submitted a rambling three-page note to the trial court. Among other things, the note mentioned overhearing another juror say that the trial lawyer representing Gonzales had been a judge but had been "disbarred."

At a mid-morning break, after excusing the other jurors, the trial court asked Juror No. 5 to explain his note and to identify the jurors whose comments he described in it. The attorneys then asked follow-up questions. Juror No. 5 reported that two female jurors had talked about the prosecutor's nervous habit of twirling her hair and about her Spanish pronunciation. He also reported that one of the same two jurors made comments about Gonzales's lawyer. But Juror No. 5's concerns were broad; for instance, he complained that a juror had said "they go to doctor school sooner" in Africa, apparently referring to the medical examiner's statement that he had done medical training in both Africa and the United States.

Asked whether the juror's comment about one of the lawyers being a former judge bothered him, Juror No.5 said, "Kind of, yes. Very much. [¶] . . . [¶] Because I think she's trying to influence the other jurors." He said he had taken the comment with a grain of salt himself but was worried it would "get out" and he also conceded it might be hard for him to work with the two jurors. He had not heard any discussion among the jurors about the evidence but he recommended that other jurors be asked if they had discussed evidence because, "I'm not there all the time."

The two jurors identified by Juror No. 5 were called in separately. The first juror denied talking about the lawyer's background, saying she had never seen him before and knew nothing about his background and had not heard anything negative about any of the lawyers. The second juror said the only negative thing she had said about the lawyer was that he appeared to be sick and she hoped he would get some rest over the weekend and feel better; she denied knowing or hearing anything about his background. The trial court later called in each of the other jurors, one at a time, asking generally about whether anyone had heard any discussion of the attorneys' backgrounds; they all said no. The prosecutor stated for the record that each of the jurors had appeared puzzled during the questioning except for Juror No. 5.

Gonzales moved for mistrial or, in the alternative, for dismissal of Juror No. 5 and the two jurors accused by him. The trial court determined the source of information reported by Juror No. 5 remained uncertain. Gonzales's lawyer asked to have Juror No. 5 brought back to ask why he had been so specific about the two jurors he accused. Denying the request and the motion, the trial court said there was no basis to find that Juror No. 5 was telling the truth and the others were lying. The trial court added that the region had been "drenched in publicity" about the former judge, saying it would be "amazing" if none of the jurors were aware of it, but even if they knew about the story, it was unlikely to influence the trial. In any event, with the concurrence of all counsel, the trial court excused Juror No. 5 based on implied bias.

B

Gonzales moved for mistrial, but Villarreal did not. Although Villarreal subsequently moved for a new trial on this ground, his claim is forfeited because he did not join in Gonzales's motion for mistrial. (People v. Russell (2010) 50 Cal.4th 1228, 1250.)

Gonzales faults the trial court for refusing to find that the two female jurors were lying, arguing that it "strains credulity to believe Juror No. 5 just made everything up." But the trial court was in the best position to make credibility determinations and we defer to the trial court's findings if they are supported by substantial evidence. (People v. Cissna (2010) 182 Cal.App.4th 1105, 1117.) We will disturb the trial court's credibility findings only if a statement it relied upon is physically impossible or if falsity is apparent without resorting to inferences or deductions. (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 750.) There is no such evidence here.

When individually questioned, no juror expressed concern about the trial lawyers. Moreover, even if they had some knowledge about the background of Gonzales's lawyer, there is no evidence it had an impact on the trial. The trial court did not err in denying the motion for mistrial.

IV

Defendants further assert the trial court committed instructional error. We address each claimed error in turn.

A

The trial court instructed the jury with CALCRIM No. 1401 [crime committed for benefit of criminal street gang]. According to the instruction, for the jury to find that the charged crimes were committed for the benefit of a criminal street gang, the People had to prove defendant committed the charged crimes "for the benefit of/at the direction of/or in association with a criminal street gang" and "[t]he defendant intended to assist, further, or promote criminal conduct by gang members." The language of the instruction tracks Penal Code section 186.22, subdivision (b)(1).

Defendants contend the trial court should have further defined the words "in association with a criminal street gang." They make this argument even though they did not request an expansion of the instruction and did not object to the instruction as given. To support their argument, defendants cite the concurring and dissenting opinion by Justice Werdegar in People v. Albillar (2010) 51 Cal.4th 47, 68-74 (Albillar). The majority concluded sufficient evidence supported the determination that several sex crimes had been committed "for the benefit of, at the direction of, or in association with a criminal street gang." (Id. at pp. 51, 68 (maj. opn. of Baxter, J.).) Justice Werdegar disagreed. (Id. at p. 68 (conc. & disn. opn. of Werdegar, J.).) Regarding association, Justice Werdegar said there was no showing on that point, but "[t]he prosecutor avoided the problem by providing the jury with a meaning of the phrase `in association with' that did not require such evidence." (Id. at p. 72 (conc. & disn. opn. of Werdegar, J.).) She said the prosecutor argued association has a plain, common, ordinary meaning: "[t]wo or more gang members is an association." (Ibid.) Justice Werdegar said that by focusing on gang members as associating with one another rather than as associating with the gang, the majority's definition threatened to render a portion of Penal Code section 186.22, subdivision (b) redundant. (Albillar, at p. 73 (conc. & disn. opn. of Werdegar, J.).)

Justice Werdegar's concurring and dissenting opinion in Albillar, supra, 51 Cal.4th 47 does not support defendants' argument in this case. The decision did not involve a challenge to CALCRIM No. 1401 and it did not hold that the phrase "in association with a criminal street gang" is a technical term requiring further trial court instruction. The trial court did not have a sua sponte duty to provide further instruction on this point in the absence of a specific request or objection from defendants. In any event, the prosecutor presented evidence that each defendant independently belonged to and associated with the Norteño gang.

B

The trial court also instructed the jury with CALCRIM No. 1403 [limited purpose of evidence of gang activity]. The trial court instructed the jury that it may consider evidence of gang activity only to decide whether the defendant acted with the intent, purpose, and knowledge required to prove the gang-related crimes, enhancements and special circumstance allegations; whether defendant had a motive to commit the charged crimes; or whether defendant actually believed the need to defend himself. The trial court further instructed that the jury may also consider evidence of gang activity to evaluate the credibility or believability of a witness or in considering the facts relied on by an expert witness in reaching an opinion. The trial court instructed that the jury "may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he had a disposition to commit crime."

Defendants assert various challenges to the instruction,2 but because they failed to object to the instruction at trial and did not seek to modify or clarify it, their contentions are not preserved for appeal. (People v. Russell (2010) 50 Cal.4th 1228, 1273; People v. Arias (1996) 13 Cal.4th 92, 171.) They assert it was not necessary to object in the trial court because the issue affects their substantial rights. (Pen. Code, § 1259 [an appellate court may review an instruction even though no objection was made if the substantial rights of the defendant were affected].) But instructional error does not affect substantial rights unless it results in a miscarriage of justice. (People v. Anderson (2007) 152 Cal.App.4th 919, 927 [distinguishing harmless error from a miscarriage of justice].) Recent examples of the instructional error cognizable on appeal despite the lack of objection at trial include People v. Townsel (2016) 63 Cal.4th 25 [instruction erroneously kept jury from considering mental disability defense] and People v. Ramirez (2015) 233 Cal.App.4th 940 [instruction erroneously kept jury from finding self-defense].) Conjecture about potential juror misunderstanding does not establish a miscarriage of justice. Based on our review of the record, we have determined the instruction did not cause a miscarriage of justice. By way of example, Gonzales argues CALCRIM No. 1403 allowed the jury to consider gang activity in assessing premeditation, intent to kill and implied malice. A similar argument was made and rejected in People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168 [CALCRIM No. 1403 in gang-related murder case was not contrary to law].) As another example, defendants claim the phrase "gang-related crimes" in CALCRIM No. 1403 would be confusing to jurors. The phrase was appropriate, however, to distinguish between the count three charge of street terrorism, in which active participation in a criminal street gang was an element of the offense, and the count two charge of shooting into an occupied vehicle, in which active participation in a criminal street gang was not an element of the charged offense. Moreover, the instruction directed the jury not to use evidence for any purpose other than that for which it was offered. Defendants have not shown that CALCRIM No. 1403 caused a miscarriage of justice.

Defendants assert defense counsel was ineffective in failing to object to the instruction or in failing to seek a modification. But we have concluded there was no instructional error and no miscarriage of justice; accordingly, counsel was not deficient and defendants did not suffer prejudice.

C

In addition, defendants argue the trial court failed to give an instruction like CALJIC 2.50.2 informing jurors to disregard other crimes or gang activities not established by a preponderance of the evidence or, in the case of evidence essential to guilt, beyond a reasonable doubt.

An instruction on the burden of proof for other crimes evidence is mandatory upon request. (People v. Carpenter (1997) 15 Cal.4th 312, 380-382, superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) A sua sponte instruction is required only in the "occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose." (People v. Collie (1981) 30 Cal.3d 43, 64, superseded by statute on other grounds as recognized in People v. Champion (1995) 9 Cal.4th 879, 912-913.) As we discuss more fully in Parts VIII and IX, this was not an extraordinary case in which evidence of past offenses was both prejudicial and minimally relevant. In fact, the trial court denied the prosecutor's request to put on evidence of prior specific acts by defendants to prove their gang membership. Instead, only field contacts between testifying officers and defendants, most of which did not involve criminal activity, were admitted for the limited purpose of proving defendants' Norteño affiliation. The jury was told that gang membership is not a crime.

D

Defendants argue there was no adequate instruction limiting the jury's use of hearsay evidence relied upon by the prosecution's gang experts. But the trial court instructed the jury with CALCRIM No. 332 [expert witness testimony] and it is a correct statement of the law. (People v. Felix (2008) 160 Cal.App.4th 849, 859-860.) Among other things, the instruction included the following limitation: "You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." Parts VIII and IX of this opinion will address other issues involving hearsay evidence presented through a gang expert, but defendants have not established that the instructions caused a miscarriage of justice.

E

Gonzales requested instructions on both reasonable and unreasonable self-defense. Villarreal did not argue self-defense. Gonzales now objects to the trial court's addition of a "contrived self-defense" instruction that provided: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472.)

Counsel for Gonzales conceded at trial that the jury would not find complete self-defense, but argued the theory of unreasonable self-defense should reduce the charge to manslaughter. Gonzales now contends the contrived self-defense instruction was improper because it reduced the prosecution's burden of proof in violation of due process and denied his right to present a defense and to a jury's determination of all issues. He claims there was no evidence of an intentional ruse and it is speculative that defendants had time to plot what he characterizes as a "split-second explosion of violence" by provoking a fight in order to justify the shooting. He asserts the instruction was overbroad because, although there was video of a gun behind his back as he approached the victim's car, there is no evidence he started to shoot before the car started moving.

Gonzales was not deprived of an opportunity to argue his theory of the case by the addition of an instruction to which he made no objection. It is undisputed that instructions may be given only when they are supported by the evidence. (See People v. Cross (2008) 45 Cal.4th 58, 67 [to give an instruction that has no application to the facts is error].) The Attorney General argues the contrived self-defense instruction was warranted because a reasonable juror could have inferred from the evidence that Villarreal's assault of the victim was intended to provide Gonzales with an unobstructed shot. We agree. Gonzales's shots immediately followed Villarreal's assault. Moreover, even when facts supporting an instruction are not apparent, we must defer to the trial court's evaluation of the evidence, particularly where the parties agreed to it. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.) Although no witness testified to a premeditated plan for the defendants to kill the victim, the victim was a member of a rival gang who had just been accused of disrespecting a family member's memorial service not only that evening but also on at least one prior occasion. The speed with which events escalated — from smashing a beer can on the car window to the fatal shooting — could have been construed as a swift and well-executed revenge killing. Although defendants said a provoked fist-fight escalated to a shooting only because the victim stayed in his car and started backing up toward his pursuers, the evidence was susceptible to the prosecutor's alternative interpretation and we decline to second-guess the trial court's assessment of the facts in determining the jury instructions to be given. (See ibid. [proper deference by reviewing court].)

F

Gonzales contends the trial court had an obligation to instruct sua sponte on heat of passion and the failure to do so deprived him of state and federal constitutional rights.

During the jury instruction conference outside the presence of the jurors, Villarreal waived instruction on lesser included offenses for murder. In a discussion about CALCRIM No. 1403 [limited purpose of evidence of gang activity], counsel for Gonzales said, "We are not asking about heat of passion or arguing about heat of passion. So that can be deleted." Counsel for Gonzales added that CALJIC No. 844 would also be withdrawn because it discussed emotion for heat of passion. And the trial court said CALJIC 842, pertaining to sudden quarrel or heat of passion, would not be given and there was no evidence to support it. Regarding CALCRIM No. 570 [voluntary manslaughter: heat of passion — lesser included offense], counsel for Gonzales repeated, "I have said heat of passion, the two that relate to heat of passion, I withdraw."

Now, however, Gonzales argues that because the prosecutor was permitted to offer the contrived self-defense instruction despite the absence of direct evidence, the heat of passion instruction was also warranted based on circumstantial evidence. Gonzales reasons the victim's conduct toward the funeral vigil was purposely and pointedly provocative. Villarreal's sister said she heard honking and yelling and believed she had seen the victim's car drive by twice before the shooting. Villarreal's young nephew told Villarreal the same car had circled around at previous vigils and frightened him, which Villarreal said "emotionally messed me up." Also in evidence was a text message in which Villarreal believed the victim was associated with his cousin's killers because he was "always driv[ing] by [the vigils] mugging and talking shit." According to Gonzales, this evidence, plus the fact the victim was a Sureño, supported a finding that the shooting was not a cold-blooded ambush but the result of a sudden passion arising out of the victim's persistent disrespectful conduct.

Instructions on a lesser included offense must be given if the evidence supporting it is substantial enough to merit a jury's consideration. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) Substantial evidence is not any evidence, but evidence by which reasonable jurors could conclude that the lesser, not the greater, offense was committed. (Id. at p. 162.) Revenge does not constitute heat of passion. (Id. at p. 163.)

Here, Gonzales testified he crossed the street to the victim's car only to be nosey. He said he fired his gun only because the victim's car began to reverse in his direction and, even then, he intended only to protect himself and scare the victim. Gonzales's text messages immediately after the shooting boasted that he had "juzt blaztd sum thang" and was laying low and had handled some "shyt." There was no basis for the jury to assume that the impassioned emotional state described by Villarreal was shared by Gonzales or that Gonzales's actions were in any other way motivated by heat of passion. The trial court did not have a sua sponte obligation to instruct on heat of passion.

G

The trial court used CALCRIM No. 372 to instruct that if defendant fled immediately after the crime was committed, such conduct "may show that he was aware of his guilt." The instruction added: "If you conclude that a defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that a defendant fled or tried to flee cannot prove guilt by itself." (CALCRIM No. 372) Defendants argue the instruction deprived them of constitutional rights by "erecting an irrational permissive inference of guilt of murder." But this court rejected the same constitutional challenge to CALCRIM No. 372 in People v. Paysinger (2009) 174 Cal.App.4th 26, 30-32. We decline to revisit it.

Gonzales cites Hanna v. Riveland (9th Cir. 1996) 87 F.3d 1034, 1037, which held it was improper to instruct a jury on a permissive inference of reckless driving when the prosecution alleged a collision was caused by the driver's sustained excessive speed and the driver admitted exceeding the speed limit but only briefly and not during the critical time before the collision. (Ibid.) The Ninth Circuit expressed concern that a jury might have convicted the defendant solely by inferring fault from his admission of speeding without evaluating the evidence of recklessness. (Ibid.) The court added, however, that a permissive inference instruction is improper only when the proposed inference is not justified by reason and common sense in light of the proven facts. (Ibid.) Even then, it concluded, permissive inference instructions are acceptable if other instructions "condition, qualify or explain them." (Id. at p. 1038.)

In California, "flight instruction[s] not only should, but must be given where evidence of flight tends logically and reasonably to establish guilt of the defendant." (People v. Scott (1988) 200 Cal.App.3d 1090, 1094.) The Bench Notes for CALCRIM No. 372 mandate the instruction "whenever the prosecution relies on evidence of flight to show consciousness of guilt." In this case the prosecutor argued in closing that a video showing defendants fleeing the scene together after the shots were fired showed consciousness of guilt. The prosecutor also characterized the subsequent trip defendants took together as a joint effort to hide out. Under the circumstances, the trial court had an obligation to give the flight instruction. (See People v. Bradford (1997) 14 Cal.4th 1005, 1054-1055.)

Gonzales testified he did not intend to shoot or kill the victim and he ran afterward because he was scared. Villarreal testified he ran when he heard shots but returned to pick up his beer can because he "didn't want to get tied down to nothing in case anything did happen." Villarreal said the motive for the subsequent trip to San Jose was to clear his head because he figured he was in a lot of trouble for hitting a car with a beer can. Nothing in the instruction prohibited the jury from accepting defendants' version of events or relieved the jury from evaluating the shooting under other instructions to determine whether the shooting was an accident or a crime. There was no instructional error.

H

Defendants claim CALCRIM No. 702 [special circumstances: intent requirement for accomplice other than felony murder] as given contradicted CALCRIM No. 736 [special circumstances: killing by street gang member] as given and impermissibly reduced the prosecution's burden of proof in violation of their constitutional rights.

As we have said, when we review challenged instructions, we look at them as a whole. (People v. Richardson, supra, 43 Cal.4th 959, 1028.) The trial court instructed the jury with CALCRIM No. 700, stating in part: "Now, if you find the defendant guilty of first degree murder, you must also decide whether the People have proved that a special circumstance is true. The People have the burden of proving the special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. . . . You must consider each special circumstance for each defendant." The trial court also instructed with CALCRIM No. 736, stating that the defendant was charged with the special circumstance of committing a murder while an active participant in a criminal street gang, and that to prove the special circumstance, the People had to prove, among other things, "that the defendant intentionally killed [the victim]." In addition, the trial court instructed with CALCRIM No. 702, stating in part: "Now, if you decide that a defendant is guilty of first degree murder, but was not the actual killer, then when you consider the special circumstances of murder to promote gang activity, you must also decide whether the defendant acted with an intent to kill. In order to prove this special circumstance for a defendant who is not the actual killer, but who is guilty of first degree murder as an aider and abettor, the People must prove that the defendant acted with the intent to kill. The People do not have to prove that the actual killer acted with the intent to kill in order for this special circumstance to be true."

Defendants acknowledge CALCRIM No. 736 properly instructed the jury that intent to kill was an element of the murder charge, but they argue it was contradicted by the phrase in CALCRIM No. 702 stating that the People "do not have to prove that the actual killer acted with the intent to kill in order for this special circumstance to be true." They claim the burden of proof was thereby reduced, denying them due process and a jury determination of all elements of the offenses beyond a reasonable doubt.

The instructions, however, did not contradict each other and did not reduce the burden of proof. CALCRIM No. 700 said the People had the burden of proving the special circumstance beyond a reasonable doubt. CALCRIM No. 736 said the People had to prove the defendant intentionally killed the victim. And CALCRIM No. 702 expressly applied only to an aider and abettor who was not the actual killer, instructing that the People had to prove the aider and abettor who was not the actual killer acted with the intent to kill. Villarreal smashed the car window with a beer can but did not fire a gun; Gonzales admitted shooting the victim. Thus Gonzales was the only "actual killer." The portion of CALCRIM No. 702 challenged by defendants — saying the People did not have to prove the actual killer acted with the intent to kill in order for this special circumstance to be true — merely served to clarify the People's burden applicable to an aider and abettor who was not the actual killer. We presume jurors are intelligent and capable of correlating instructions. (People v. Richardson, supra, 43 Cal.4th at 1028.) The instructions are not reasonably susceptible to the interpretation proposed by defendants and there was no violation of their constitutional rights.

I

Villarreal challenges CALCRIM No. 402 [natural and probable consequences doctrine] as it applied to charges that he aided and abetted first degree murder. We already concluded in Part I ante that the evidence was sufficient to support a finding of first degree murder against Villarreal. Nevertheless, Villarreal contends the jury may have convicted him based on its assessment of Gonzales's culpability.

CALCRIM No. 402 as given instructed the jury that it had to first decide whether Villarreal was guilty of assault with force likely to cause great bodily injury and committing a crime for the benefit of a gang. The trial court instructed that if the jury found Villarreal guilty of those crimes, it must then decide whether he is guilty of murder and shooting at an occupied vehicle; to prove those additional crimes, the People had to prove (a) Villarreal was guilty of assault with force likely to cause great bodily injury or committing a crime for the benefit of a gang; (b) during the commission of those crimes, a coparticipant in those crimes committed the crimes of murder and shooting at an occupied vehicle; and (c) under all the circumstances a reasonable person in Villarreal's position would have known that the commission of murder and shooting at an occupied vehicle was a natural and probable consequence of the assault with force likely to cause great bodily injury and committing a crime for the benefit of a gang.

But the trial court also instructed the jury with CALCRIM No. 520 [first or second degree murder with malice aforethought], stating in part that both defendants were charged with first degree murder and that the People had to prove, among other things, that they acted with a state of mind called malice aforethought. The trial court further instructed: "If you decide that the defendant committed murder, you must then decide whether it is murder of the first or of the second degree."

In addition, the trial court instructed with CALCRIM No. 521 [first degree murder], stating: "You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder in general. The defendant is guilty of first degree murder if the People have also proved that he acted willfully, deliberately, and with premeditation," terms the trial court defined. The trial court added, "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden you must find the defendant not guilty of first degree murder." Moreover, the trial court used CALCRIM No. 203 to instruct that the jurors "must decide each charge for each defendant separately."

When the jury sent a note asking for clarification of the difference in the elements between first and second degree murder, the trial court referred jurors back to CALCRIM Numbers 520 and 521, then stated, "If murder has been proved, but the additional elements for first degree have not, then it is second degree." Villarreal contends the jury question demonstrated the need for additional instructions, citing People v. Woods (1992) 8 Cal.App.4th 1570 (Woods). In Woods, two defendants went looking for a rival; while one served as a lookout, the other assaulted two women in an attempt to find the rival's whereabouts and, not having found the rival, shot and killed an innocent bystander. (Id. at p. 1577.) Both men were convicted of first degree murder. (Ibid.) The jury asked during deliberations whether the lookout could be found guilty of aiding and abetting murder in the second degree if the actual perpetrator was found guilty of the same murder in the first degree and the trial court incorrectly replied, "No." (Id. at p. 1579.) On appeal, this court concluded the jury might have returned a verdict of first degree murder for the lookout only to avoid absolving him of the consequences of aiding and abetting the assaults. (Id. at p. 1590.) Criticizing this "unwarranted all-or-nothing choice," this court said the jury "should have been told it could find a defendant guilty of second degree murder as an aider and abettor even if it determined the perpetrator was guilty of first degree murder." (Ibid.) This court concluded, "the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence." (Id. at p. 1588.)

Seeking to apply Woods, supra, 8 Cal.App.4th 1570, Villarreal notes that if the jury relied on the natural and probable consequences theory to find him guilty of first degree murder, it may have done so only because it found Gonzales guilty of that crime and it may not have ever determined that first degree premeditated murder was a likely consequence of Villarreal's own criminal conduct.

We have already concluded beyond a reasonable doubt, however, that the jury did not rely on the natural and probable consequences doctrine to convict Villarreal of first degree murder. Rather, the jury found Villarreal guilty of first degree murder as a direct aider and abettor. Thus, any error in instructing the jury with CALCRIM No. 402 is harmless. And Woods, supra, 8 Cal.App.4th 1570 is inapposite, because here the jury was not given an all-or-nothing choice.

Based on our conclusions, we reject Gonzales's broad contention that allegedly prejudicial instructional errors were attributable to the ineffective assistance of his counsel.

V

Defendants argue the trial court improperly imposed victim restitution and parole revocation fines.

Regarding the parole revocation fines, they contend the abstracts of judgment must be corrected to omit the $10,000 parole revocation fines. The Attorney General agrees and so do we. The trial court did not mention such a fine when the sentence was imposed and when there is a discrepancy between the oral pronouncement of a sentence and the written order, the oral pronouncement controls because it "constitutes the rendition of judgment," whereas "the written document is ministerial." (People v. Freitas (2009) 179 Cal.App.4th 747, 750, fn. 2, overruled on other grounds as stated in People v. Hall (2017) 2 Cal.5th 494, 504, fn. 2.) In any event, a parole revocation fine is not authorized when, as here, a defendant is sentenced to life without the possibility of parole. (People v. Battle (2011) 198 Cal.App.4th 50, 63.) We will direct the trial court to correct the abstracts of judgment to omit the $10,000 parole revocation fines.

In addition, Villarreal contends the trial court violated his right to due process by imposing a victim restitution fine beyond the statutory minimum without an express finding that he has the ability to pay. The trial court explained that, although Villarreal, like many other defendants, would probably never be able to actually pay the fine, the crimes were serious enough to justify imposing the maximum, $10,000. The Penal Code provides that, in addition to other penalties, the trial court must impose a restitution fine "unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (Pen. Code, § 1202.4, subd. (b).) And the statute explains, "A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine." (Pen. Code, § 1202.4, subd (c).)

Villarreal directs our attention to a 1994 juvenile case that held an ability-to-pay finding was required "only where the court imposes a restitution fine exceeding the statutory minimum." (In re Enrique Z. (1994) 30 Cal.App.4th 464, 469.) The point in that case was that an ability-to-pay finding was unnecessary because the fine had been set at the statutory minimum, and the court never considered whether an ability-to-pay finding would be necessary under facts not then before the court. (Id. at pp. 468-469.)

Villarreal's argument was soundly rejected in People v. Kramis (2012) 209 Cal.App.4th 346, 352. In Kramis, as in this case, the trial court imposed a restitution fine within the range authorized by the jury's finding of guilt for a very serious crime; the appellate court concluded due process concerns were never triggered. (Id. at pp. 350-352 [discussing Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and its progeny].) We reject Villarreal's contention that Kramis was wrongly decided and that a separate hearing should be required before a trial court imposes statutory restitution in an amount higher than $200. The crimes were very serious, as the trial court aptly observed, and we find no abuse of discretion in its exercise of discretion to impose the maximum fine. (See People v. Fortune (2005) 129 Cal.App.4th 790, 794 [abuse of discretion in restitution found only if there is no factual or rational basis for the amount].)

VI

Villarreal contends his six-year sentence for assault should have been stayed pursuant to Penal Code section 654. The Attorney General agrees and we do too.

"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654.) When the evidence suggests the defendant's objective of committing one offense is merely to facilitate a second offense, the sentence for the lesser offense should be stayed. (See People v. Hensley (2014) 59 Cal.4th 788, 828 [robbery sentence stayed in light of sentence for attempted murder].)

At the time of sentencing, the trial court said it was imposing a separate sentence for Villarreal's assault because it was a separate incident. We will uphold on appeal a determination that two crimes are separate, involving separate objectives, if that determination is supported by substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.) In this case, the evidence does not support the determination.

Villarreal testified he intended to assault the victim and nothing more, but the jury could not have convicted him of first degree murder unless it rejected that testimony and found instead that his assault and Gonzales's shooting were part of a single plan. The shooting took place within a split second of Villarreal opening the victim's car door, while Villarreal was reaching for the victim but before he touched him. There was support in the evidence for the jury's implicit finding that the sole object of both defendants was first degree murder. This finding was inconsistent with the trial court's conclusion at sentencing that Villarreal intended an assault entirely separate from the murder. Accordingly, the assault facilitated the murder and the separate assault sentence should have been imposed and stayed under Penal Code section 654. (See In re Jose P. (2003) 106 Cal.App.4th 458, 469 [if two crimes are incident to a single objective, the trial court may impose sentence only for the one carrying the higher penalty], disapproved on other grounds as stated in People v. Prunty (2015) 62 Cal.4th 59, 78, fn.5.) We will modify the judgment to stay the six-year sentence for assault, and direct the trial court to amend the abstract of judgment accordingly.

VII

Villarreal's motion for a new trial on the basis of ineffective assistance of counsel was denied. On appeal, he contends again that his trial attorney was ineffective because he (1) failed to object to hearsay (the state of mind of Villarreal's girlfriend when she wrote a text message saying Villarreal was in trouble for the shooting); (2) failed to interview Villarreal's nephew and to know the boy would contradict Villarreal's testimony that the two spent considerable time together on the day of the murder; (3) failed to object to the prosecutor's exercise of peremptory challenges to two African-American prospective jurors; (4) failed to call Villarreal's supervisor, who allegedly would have testified that he got along well with Villarreal in spite of the fact that they belonged to rival gangs; and (5) failed to cross-examine the codefendant. The trial court considered each of these contentions in Villarreal's 15-page handwritten note and also in arguments the trial court characterized as defense counsel "falling on [his] own sword." Nevertheless, the trial court ruled that even if counsel had made errors, the jury saw the crime in a video recording and it would be no more than "pure speculation" to find that the challenged evidentiary tactics had any effect on the verdict or that a motion challenging the jury's composition should have been made or might have been granted. We agree.

The grounds asserted for a new trial all related to factual matters the trial court had a chance to personally observe. We defer to its determination that even if counsel's asserted errors had not been made, a different result would not have been reasonably likely. (See People v. Daniels (1991) 52 Cal.3d 815, 849 [deference to trial court's conclusions on effectiveness of trial counsel in support of its denial of motion for new trial].) The motion for new trial was properly denied.

VIII

Defendants assert in supplemental briefing that there is insufficient evidence of gang association and street terrorism. They base their argument on People v. Prunty, supra, 62 Cal.4th 59. But in Prunty, the California Supreme Court's concern was that imposition of penalties under Penal Code section 186.22, subdivision (f) [defining criminal street gangs] requires proof that the predicate crimes establishing a gang as a criminal enterprise were committed by a criminal street gang with which the defendant was affiliated. (Prunty, at pp. 84-85.) The proof was inadequate in Prunty because an expert identified crimes committed by gang subsets different from the defendant's subset and the expert offered no evidence tying the defendant to the subsets who committed the predicate crimes. (Ibid.)

Here, however, the gang expert testified that Villarreal's Pilgrim Street subset committed the two requisite predicate crimes. Although Gonzales was apparently affiliated with a different subset than Villarreal, the expert cited extensive police records for his conclusion that both defendants belonged to the Norteño gang. The expert also testified that in Stockton, different subsets of the same gang (Norteños) hang out together and commit crimes together. Defendants admitted they were Norteños who gathered together to mourn the gang slaying of a fellow Norteño at the time of the crimes. That evidence, combined with the evidence of Gonzales's swift action in joining Villarreal to confront a disrespectful rival gang member, was sufficient to support a determination of gang association and street terrorism.

IX

Defendants also argued in supplemental briefing that the gang expert testimony violated their constitutional right to confrontation as guaranteed by the Sixth Amendment.

In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court held that when an expert "relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.) Moreover, when such hearsay is testimonial, "there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Ibid.)

Villarreal claims the gang expert in this case relayed information about Villarreal's Norteño affiliation over a period of years from numerous Field Identification (FI) cards and that only a few of the oldest cards were authenticated by witnesses Villarreal had an opportunity to cross-examine. The record supports his contention. The expert also relayed information from FI cards regarding Gonzales. Most, but not all, of the officers who prepared the FI cards about Gonzales testified at trial and were subject to cross-examination.

To the extent the jury heard case-specific testimonial evidence attributed to witnesses who prepared FI cards and who were not subject to cross-examination, the new rule from Sanchez applies. The court in Sanchez defined testimonial evidence as a statement made, or evidence prepared, "primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Sanchez, supra, 63 Cal.4th at p. 689.) In Sanchez, the circumstances surrounding the preparation of an FI card were unclear. (Id. at p. 697.) The Attorney General argued the purpose of FI cards was for non-testimonial community policing efforts, but there was evidence the card was created in the course of a criminal investigation and "more akin to a police report, rendering it testimonial." (Ibid.)

In this case, it appears most of the FI card entries were not testimonial. The expert testified that when gang members spoke freely with Stockton police, the police recorded the information on FI cards to focus police attention where it was needed. On cross-examination, defendants elicited testimony from the officers who authenticated the FI cards that, except in one instance, defendants were not accused of committing crimes when the cards were prepared. The exception was one officer who testified that he arrested Gonzales in 2008 for driving without a license and documented that at least one of Gonzales's passengers was a Norteño. Although that one instance was investigative, Gonzales cross-examined that witness. Villarreal acknowledges the distinction between criminal investigation and community policing as discussed in People v. Hill (2011) 191 Cal.App.4th 1104, 1135-1136, but argues every contact between an alleged gang member and a police officer is testimonial. We disagree.

In any event, any error in allowing the gang expert testimony based on the FI cards was harmless beyond a reasonable doubt. (See People v. Banos (2009) 178 Cal.App.4th 483, 493, 504 [applying harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] to admission of evidence in violation of Confrontation Clause].) The only factual conclusion for which the expert said he relied on the FI cards was that defendants were both documented Norteños at the time of the crimes. The expert also relied on other evidence, however, such as defendants' tattoos, personal effects and, in Gonzales's case, personal contacts. More importantly, as we have said, defendants later admitted on the witness stand that they were Norteños at the time of the crimes. Thus, the circumstances in this case are readily distinguishable from the circumstances in Sanchez, supra, 63 Cal.4th 665. Given Villarreal's testimony that he was affiliated with the Norteños at the time of the crime and at the time of trial, we reject his contention that the jury might have concluded otherwise in the absence of the gang expert's testimony.

In addition, the other evidence of gang affiliation and gang motivation was overwhelming. Among other things, a group of people gathered on a sidewalk where a young Norteño was murdered by a Sureño. Villarreal's young nephew told Villarreal the driver of a car looked like a Sureño and was glaring at the mourners. Villarreal "took off" toward the victim's car and others followed. Villarreal knew there was a Norteño rule requiring members to back up other Norteños. A video showed the jury that Villarreal's door-opening and Gonzales's shot were almost simultaneous. The gang expert testified that gang culture requires retaliation when a rival is "caught slipping" (entering into their territory unprepared) or openly showing them disrespect by casting hostile looks. We conclude beyond a reasonable doubt that the jury would have convicted defendants even if they had not heard evidence that they had been observed by police with other gang members on numerous occasions over the years.

DISPOSITION

Villarreal's judgment is modified to stay his six-year sentence for assault and his judgment is affirmed as modified. Gonzales's judgment is affirmed. The trial court shall amend Villarreal's abstract of judgment to reflect the judgment as modified and it shall correct the abstracts of judgment for Villarreal and Gonzales to omit the $10,000 parole revocation fines. The trial court shall forward a copy of Villarreal's amended and corrected abstract of judgment, and Gonzales's corrected abstract of judgment, to the Department of Corrections and Rehabilitation.

BUTZ, Acting P. J., and HOCH, J., concurs.

FootNotes


1. In closing argument, the prosecutor pointed to the mother's statement and argued that the vigil attendees expected a vengeance killing. However, the trial court instructed the jury that nothing the attorneys said was evidence. The jury was free to accept or reject the prosecutor's interpretation of the evidence. (People v. Farnam, supra, 28 Cal.4th at p. 169.)
2. We address additional contentions about the gang evidence in Parts VIII and IX.

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