People v. Enriquez CA5

Filed 1/30/15 P. v. Enriquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F065288

Plaintiff and Respondent,

(Kern Super. Ct. No. BF137853B)

v.

RAMIRO ENRIQUEZ, OPINION

Defendant and Appellant.

THE PEOPLE

F065481

Plaintiff and Respondent,

(Kern Super. Ct. No. BF137853A)

v.

GABRIEL RAMOS,

Defendant and Appellant.

THE PEOPLE

F065984

Plaintiff and Respondent,

(Kern Super. Ct. No. BF137853C)

v.

RENE GUTIERREZ, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Michael E.

Dellostritto, Judge.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and

Appellant Ramiro Enriquez.

Donn Ginoza, under appointment by the Court of Appeal, for Defendant and

Appellant Gabriel Ramos.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and

Appellant Rene Gutierrez, Jr.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer

M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted Ramiro Enriquez, Gabriel Ramos, and Rene Gutierrez, Jr.

(collectively, defendants) of attempted premeditated murder, assault with a firearm, and

active participation in a criminal street gang. The gang enhancement also was found true

as to Gutierrez and Enriquez. They raise multiple challenges to their convictions,

including insufficiency of the evidence, evidentiary error, instructional error,

prosecutorial misconduct, abuse of discretion to deny a mistrial motion, ineffective

assistance of counsel, and error pursuant to Batson v. Kentucky (1986) 476 U.S. 79

(Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

We reject their contentions and affirm the judgments.

FACTUAL AND PROCEDURAL SUMMARY

On the evening of July 29, 2011, about 15 to 20 people were at Melissa Schuetze’s

apartment. Among those at the apartment were Gutierrez, Enriquez, and Kyle Fuller.

They were smoking marijuana and using methamphetamine.

Schuetze, Gutierrez, Enriquez, Fuller, and others drove to the Western Knights

Motel in Fuller’s red SUV to pick up more drugs. Prior to leaving, Gutierrez placed a

2.

sawed-off shotgun in the SUV; Schuetze saw the shotgun wedged between the front

passenger seat and the door. Fuller drove and Gutierrez and Schuetze were in the

backseat. On the way to the motel, Gutierrez gave Schuetze two shotgun shells, which

she placed in her bra.

When Fuller arrived at the motel, Gabriel Trevino and Ramos already were there.

Enriquez, Fuller, and three women went into a vacant room to smoke marijuana and

methamphetamine. Ramos joined the group, using drugs for a while, and then headed

outside. At some point, Enriquez and Gutierrez went outside as well.

Fuller heard Ramos starting an argument outside. Schuetze also could hear the

argument and looked outside. Gutierrez was in the area where the argument was

occurring. Fuller and the women started to leave the room, but Enriquez instructed them

to go back inside. While in the doorway, Fuller could see Ramos arguing with a Black

man.

Ramos came up to the room and asked for a ride. Fuller went to his SUV and

climbed into the driver’s seat, Gutierrez got in the front passenger seat, and Enriquez and

Trevino got in the backseat. As Fuller drove away, Gutierrez pulled out a shotgun and

told him where to drive.

Gutierrez asked Enriquez what he wanted to do and Enriquez responded,

“[W]hatever you want to do my boy, whatever you want to do.” Gutierrez told Fuller to

stop and jumped out of the SUV. Gutierrez began firing at a Black man that looked like

the man Ramos had been arguing with in the motel parking lot. Gutierrez fired three

shots at the Black man, got back into the SUV, and they drove away.

As they drove away, Trevino instructed Fuller on where to drive until they arrived

at a house, where Trevino hid the shotgun. Enriquez took the keys from Fuller and drove

away; Gutierrez and Trevino took off walking; Fuller was told to stay at the house.

Fuller stayed for an hour or two and then left; he got his car back the next day.

3.

Clarence Langston was shot just after midnight on July 30, 2011. Langston had

been to the motel several times before the night of the shooting. Langston rode his bike

to the motel that night looking for his wife and a friend. Langston was standing in the

parking lot of the motel talking to a Black man when they were interrupted by two

Hispanic men.

One of the Hispanic men asked Langston what he was doing in the parking lot,

which started an argument. When it looked like there was going to be a problem,

Langston left the parking lot on his bicycle. As he rode off, Langston heard someone

yelling.

Langston rode around the corner to a friend’s house and stopped and called his

wife on his cell phone. As he did so, he saw someone with a gun jump out of the

passenger side of a red SUV. Langston turned to run and dropped his phone. Langston

heard a shotgun blast and then heard the shooter cock the gun and shoot again. Langston

was near the back of the house when he was hit with pellets. Langston ran around the

block and then back to the front of the house.

Just prior to the shooting, Langston’s wife, Joyce, received a call from Langston

asking her to meet him. She was in the vicinity and, when she turned onto Fourth Street,

she saw her husband across the street. Joyce saw a small, red SUV pull up. A Hispanic

man wearing a white shirt and jeans jumped out of the SUV with a shotgun; he had a

haircut that left very little hair on the sides and slightly more on top.

The shooter was about three feet from Langston when Langston took off running.

As Langston ran away, the shooter followed. Joyce started running but turned back

around in time to see the shooter get back into the SUV, which then drove away. She

heard a total of three gunshots being fired. After seeing the SUV drive away, Joyce went

to the friend’s house and called the police. Law enforcement arrived soon after.

Langston was taken to Kern Medical Center. The injuries to Langston were on his

left side. Langston was interviewed by Police Officer Ryan Kroeker, who knew

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Langston from the past. Kroeker found Langston on a gurney in one of the trauma

rooms. Langston told Kroeker he was at the motel when he began talking to a Hispanic

male. He described this male as being 30 to 40 years old and having a thick mustache,

short hair, and a tattoo of the word “Bakers” across his back. The conversation got

heated and the two started arguing. The man looked up to the balcony of one of the

motel rooms and instructed the people there to “get the cuete,” which Langston knew

meant to get a gun. Langston got on his bike and rode out of the motel parking lot.

Langston saw a red SUV approach him and someone from the vehicle shot at him.

Kroeker thought the description of the Hispanic man with a thick mustache, short

hair, and a “Bakers” tattoo across his back fit Ramos, so he created a photographic lineup

on his computer and showed it to Langston. Kroeker asked Langston to identify anyone

in the lineup who looked like the man who had instructed others to get the gun; Langston

immediately pointed to Ramos’s picture. Langston was positive this was the same

person.

Fuller was arrested on August 21, 2011, in connection with Langston’s shooting.

He initially lied to officers, but later he identified Ramos as the person involved in the

argument that led to the shooting. Fuller was housed in the Lerdo Detention Facility,

where he came into contact with Ramos numerous times. Ultimately, Fuller pled no

contest to being an accessory to attempted murder and testified under an immunity

agreement. Fuller previously had been convicted of first degree burglary in 2007.

After signing the immunity agreement, Fuller came into contact with Ramos.

Ramos told Fuller to lie and testify that Ramos was not involved; if Fuller did so, nothing

would happen to his family. After these encounters, Fuller was afraid for his family.

Schuetze initially lied to police at the motel, as well as later at the police station.

She lied because she liked Gutierrez and wanted to protect him. She, however, did

identify Enriquez from a photographic lineup. She also told officers that after shots were

fired, Ramos came back into the motel room.

5.

Trevino was arrested September 1, 2011, in connection with the shooting. Trevino

identified Ramos, Gutierrez, and Enriquez from photographic lineups. Trevino gave a

recorded statement to law enforcement, which was consistent with his trial testimony.

Trevino was placed in protective custody. Trevino testified extensively at trial about the

Sureños gang, including subsets known as the Varrio Wasco Rifa, Varrio Bakers, and

Varrio Westside Shafters.

Langston testified at trial under an immunity agreement. Langston had suffered

prior convictions for failing to register as a sex offender, felony sexual battery, assault

with a firearm, and possession of a controlled substance for sale. Langston also had been

a gang member when he was younger.

Officer Travis Harless testified as a gang expert. Harless testified about the

Sureños gang and its various subsets. He also testified about the primary activities, gang

culture, and predicate offenses of the Sureños. Harless opined Ramos was an active

member of the Varrio Bakers subset of the Sureños, and Enriquez and Gutierrez were

active members of the Varrio Westside Shafters subset of the Sureños. Harless opined

that the shooting was done in association with the Sureños gang and it furthered the

criminal conduct of the gang.

Gutierrez was convicted of attempted premeditated murder in count 1, assault with

a firearm in count 2, and active participation in a criminal street gang in count 3. It also

was found true as to count 1 that Gutierrez personally used and discharged a firearm and

that the offense was committed in association with a criminal street gang. As to count 2,

the gang enhancement and personal use of a firearm enhancement were found true. In a

bifurcated trial, it was found true that Gutierrez suffered a prior strike conviction and had

served three prior prison terms.

Enriquez was convicted of attempted premeditated murder in count 1, assault with

a firearm in count 2, and the active participation in a criminal street gang offense in count

3. As to count 1 it was found true that a principal personally and intentionally discharged

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a firearm, and as to counts 1 and 2 it was found true that the offense was committed in

association with a criminal street gang. In a bifurcated proceeding, the trial court found

true that Enriquez had suffered a prior strike conviction.

Ramos was convicted by a jury of the count 3 offense, active participation in a

criminal street gang. The jury was unable to reach a verdict on the count 1 attempted

murder offense and the count 2 assault with a firearm offense, and the trial court declared

a mistrial as to these two counts. Thereafter, the trial court permitted the People to

amend the information to allege a fourth count, making criminal threats, and prior

conviction and prior prison term allegations. Ramos pled no contest to count 4 and

admitted the prior conviction and prior prison term enhancements as to counts 3 and 4.

In exchange, the People dismissed counts 1 and 2 and one enhancement appended to

count 3.

DISCUSSION

All three defendants challenge the trial court’s denial of the Batson/Wheeler

motion. Enriquez contends the trial court abused its discretion when it denied a mistrial

motion based upon comments made by a juror that tainted the venire.

Enriquez challenges the sufficiency of the evidence to establish (1) intent to kill

and premeditation and deliberation on the attempted murder charge, (2) aiding and

abetting attempted murder and assault with a firearm, (3) the gang enhancements, (4) the

substantive gang offense, and (5) that his prior conviction constitutes a strike. He also

asserts instructional error in the giving of CALCRIM Nos. 337 and 3550 and in not

instructing the jury to determine whether Schuetze was an accomplice, and, if so, her

testimony had to be corroborated. He contends the trial court erred by admitting lay

opinion, allowing the gang expert (Harless) to opine that Enriquez was a gang member

based on the current offenses, the use of booking statements to determine gang status, a

contention Ramos joins, and in the lack of foundation for the gang expert’s testimony.

7.

Enriquez also contends the prosecutor committed misconduct by vouching for witness

testimony and referring to matters outside the record.

Ramos challenges the sufficiency of the evidence to support the substantive gang

conviction and also contends, and Enriquez joins this contention, that he was denied due

process because he was convicted on less than substantial evidence. Ramos additionally

contends the gang registration requirement must be reversed because it was not part of

the oral pronouncement of judgment.

Gutierrez contends there was insufficient evidence corroborating accomplice

testimony, which requires reversal of all convictions, as well as insufficient evidence of

intent to kill. He asserts ineffective assistance of counsel for failure to make objections to

parts of Schuetze’s testimony and move to strike it. Gutierrez also claims prosecutorial

misconduct by misstating the law, arguing facts not in evidence, stating one accomplice

can corroborate another, and vouching. He argues (1) instructional error, claiming the

trial court erred by instructing that potential punishment of a witness could not be

considered by a jury in assessing the truth of the witness’s testimony, (2) CALCRIM No.

335 is incomplete, and (3) CALCRIM No. 302 lessens the prosecution’s burden of proof.

He also asserts cumulative error requires reversal.

Defendants have, in several instances, joined in issues raised by another defendant

in this case. When doing so, counsel are obligated to provide particularized legal

argument and citation to authority on each point raised. Counsel did not always fulfill

this obligation in their briefing. If not so briefed, this court may treat the issue as waived.

(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364 (Bryant).)

Counsel in future cases should be on notice that we will not be inclined to address issues

in which a party has joined, absent particularized legal argument as to that party and

citation to authority for each point raised. (Ibid.)

8.

Regardless, we have attempted to address the issues in which a defendant has

joined with specificity as to that defendant. We, however, do not assume each defendant

has standing to raise each contention. (Bryant, supra, 60 Cal.4th at pp. 363-364.)

I. Batson/Wheeler

At trial, defense counsel made a Batson/Wheeler motion, claiming the prosecutor

engaged in racial discrimination when he exercised peremptory challenges against 10 of

11 potential Hispanic jurors. The trial court noted that the prosecutor had exercised

peremptory challenges against 16 potential jurors, of which nine or 10 appeared to be

Hispanic. The trial court found a prima facie case to be established, based largely upon

the percentage of Hispanics challenged, and the prosecutor was asked to justify the

peremptory challenges against Hispanics. The prosecutor gave reasons for the challenges

and the trial court denied the motion.

On appeal, all three defendants contend the trial court erred in denying the

Batson/Wheeler motion and challenge the prosecutor’s exercise of peremptory challenges

against these jurors. Gutierrez asserts the peremptory challenges to three female potential

jurors, Nos. 2547226, 2723471, and 2510083, were improper. Enriquez and Ramos

contend all the challenges to Hispanics were racially motivated. We disagree.

Federal law following Batson holds that exercising peremptory challenges solely

on the basis of race offends the Fourteenth Amendment’s guaranty of the equal protection

of the laws (U.S. v. Martinez-Salazar (2000) 528 U.S. 304, 315), and Wheeler holds that

such conduct violates a defendant’s right to trial by a jury drawn from a representative

cross-section of the community under article I, section 16 of the state Constitution

(Wheeler, supra, 22 Cal.3d at pp. 276-277).

Excluding even a single prospective juror for reasons impermissible under Batson

and Wheeler requires reversal. (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).) And

although a party may exercise a peremptory challenge for any permissible reason or no

reason at all (Purkett v. Elem (1995) 514 U.S. 765, 768 (Purkett); People v. Jones (1998)

9.

17 Cal.4th 279, 294), “implausible or fantastic justifications may (and probably will) be

found to be pretexts for purposeful discrimination.” (Purkett, at p. 768).

In evaluating a trial court’s Batson/Wheeler ruling that a party has offered a race-

neutral basis for subjecting particular prospective jurors to peremptory challenge, we are

mindful that “‘Unless a discriminatory intent is inherent in the prosecutor’s explanation,

the reason offered will be deemed race neutral.’ [Citation.]” (Purkett, supra, 514 U.S. at

p. 768; see, Silva, supra, 25 Cal.4th at pp. 385-386.) In a case in which deference is due,

“The trial court’s ruling on this issue is reviewed for substantial evidence. [Citation.]”

(People v. McDermott (2002) 28 Cal.4th 946, 971 (McDermott).)

On a Batson/Wheeler motion, “the issue is not whether there is a pattern of

systematic exclusion; rather, the issue is whether a particular prospective juror has been

challenged because of group bias. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491,

549 (Avila).) At trial, the court and counsel follow a three-step constitutional analysis of

peremptory challenges. First, the defendant must make out a prima facie case by

showing that the totality of the relevant facts gives rise to an inference of discriminatory

purpose. Second, if the defendant makes out a prima facie case, the burden shifts to the

prosecution to give an adequate explanation of the peremptory challenges by offering

permissible neutral justifications. Third, if a neutral explanation is tendered, the trial

court must decide whether the opponent of the peremptory challenges has proved

purposeful discrimination. (Johnson v. California (2005) 545 U.S. 162, 168.)

Our duty after denial of a Batson/Wheeler motion without a finding of a prima

facie case is to consider the entire voir dire record before us. Since

Batson/Wheeler motions require a trial court’s personal observations, we give

considerable deference to the trial court’s rulings. (People v. Howard (1992) 1 Cal.4th

1132, 1155.) If the record suggests grounds on which the prosecutor reasonably might

have challenged the prospective jurors at issue, our duty is to affirm. (Ibid.)

10.

It is presumed that the prosecutor uses peremptory challenges in a constitutional

manner. We defer to the trial court’s ability to distinguish “bona fide reasons from sham

excuses.” (People v. Burgener (2003) 29 Cal.4th 833, 864.) As long as the trial court

makes “a sincere and reasoned effort to evaluate the nondiscriminatory justifications

offered, its conclusions are entitled to deference on appeal. [Citation.]” (Ibid.)

The party seeking to justify a suspect excusal need only offer a genuine,

reasonably specific race- or group-neutral explanation related to the particular case being

tried. (People v. Fuentes (1991) 54 Cal.3d 707, 718 (Fuentes); People v. Johnson (1989)

47 Cal.3d 1194, 1216 (Johnson); People v. Hall (1983) 35 Cal.3d 161, 167-168; see

Batson, supra, 476 U.S. at pp. 97-98 & fn. 20.) The justification need not support a

challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.

(People v. Montiel (1993) 5 Cal.4th 877, 910, fn. 9; Johnson, at p. 1218.)

Here, race-neutral reasons for excusing the jurors are apparent from the record,

and the prosecutor articulated race-neutral reasons for excusing each of the challenged

jurors. That the prosecutor used many peremptory challenges to excuse Hispanics from

the jury does not by itself establish a prima facie case. (See People v. Box (2000) 23

Cal.4th 1153, 1188-1189.)

When asked about Prospective Juror No. 2547226 (hereafter Juror 2547226), the

prosecutor indicated he felt she might have trouble fulfilling her role as a juror and in

understanding the role of a juror. When questioned during voir dire, Juror 2547226

indicated she was better at “listening than speaking my mind” and expressed that she did

not know how many jurors had to agree to a verdict in a criminal case.

Peremptory challenges properly may be based on the demeanor of the prospective

juror. (People v. Davenport (1995) 11 Cal.4th 1171, 1203.) Juror 2547226 gave

equivocal answers to some questions and expressed a lack of understanding of the jury

process in a criminal case. The prosecutor’s stated reasons reflect that, based upon Juror

2547226’s equivocal answers to voir dire questions, he had doubts about her being able

11.

to engage fully in the deliberative process and fulfill her role as a juror. A prosecutor

may excuse a juror based upon “hunches,” so long as the reason is not impermissible

group bias. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122 (Gutierrez).)

As to Prospective Juror No. 2723471 (hereafter Juror 2723471), the prosecutor

indicated he exercised a peremptory challenge against her because she professed to being

unaware of any gang activity occurring in Wasco, where she lived. This troubled the

prosecutor because a principal witness, Trevino, was a member of a criminal street gang

in Wasco and the prosecutor was concerned how Juror 2723471 would react to testimony

from a Wasco gang member. This is a race-neutral reason that need not rise to the level

of a challenge for cause. Moreover, it constitutes a valid reason, even if in a defendant’s

view the reason is trivial. (People v. Arias (1996) 13 Cal.4th 92, 136.)

Prospective Juror No. 2510083 (hereafter Juror 2510083) was excused by the

prosecutor because she had claimed a hardship in serving, even though the trial court did

not excuse her based on hardship. This constitutes a valid race-neutral reason for

excusing the juror on a peremptory challenge. (See People v. Barber (1988) 200

Cal.App.3d 378, 398; People v. Landry (1996) 49 Cal.App.4th 785, 789.)

Prospective Juror No. 2632053 had participated in gang activity and had been

around gangs in Idaho. She had a child fathered by a Sureños gang member, who had

been found guilty of being an accessory to murder. This prospective juror’s brother was

a member of the Eastside Locos gang. The prosecutor explained that he exercised a

peremptory challenge against this potential juror because her brother and the father of

one of her children were gang members, both of whom had been convicted of

gang-related crimes, even though the prospective juror was trying to change her life and

stay away from the gang lifestyle. This explanation supports a race-neutral reason for

exercising a peremptory challenge. (People v. Williams (1997) 16 Cal.4th 153, 191.)

Prospective Juror No. 2732073’s husband had always been affiliated with a gang

and had been convicted and incarcerated for offenses. Also, her father was a gang

12.

member. The prosecutor exercised a peremptory challenge against this prospective juror

because of the gang connections. Again, this is a race-neutral reason for exercising a

peremptory challenge. (People v. Williams, supra, 16 Cal.4th at p. 191.)

Prospective Juror No. 2408196 was married to a juvenile correctional officer and

worked at Wasco State Prison as a records technician. She also had an uncle who had

been a gang member and a cousin who was a former public defender. About two years

earlier, her house had been burglarized and she was unhappy with how law enforcement

had handled the matter. Although she had lived in Wasco her entire life, she claimed to

be unaware of any gang activity occurring in Wasco. The prosecutor stated that he had

excused this prospective juror because she had an uncle who was a member of a criminal

street gang and she claimed to be unaware of any gang activity in Wasco, which the

prosecutor thought might affect her view of Trevino’s testimony. Once more, the gang

connection constitutes a race-neutral reason for exercising a peremptory challenge.

(People v. Williams, supra, 16 Cal.4th at p. 191.)

Prospective Juror No. 2647624 had two nephews who were serving prison

sentences for gang-related crimes. She also had nieces who had sons that currently were

involved in gang activity. Again, the prosecutor stated he exercised a peremptory

challenge against this prospective juror because of the gang connections, which is a valid

race-neutral reason. (People v. Williams, supra, 16 Cal.4th at p. 191.)

Prospective Juror No. 2291529 had a brother who had been killed in a bar fight 20

years earlier. He did not know if the investigation into his brother’s death was handled

appropriately. More recently, he had been the subject of a vehicle stop by an officer that

escalated into six officers on the scene and it “got out of hand.” He was unhappy about

the vehicle stop and the way it had been handled by the officers. The prosecutor

indicated he challenged this prospective juror because of the negative experience with

law enforcement over the vehicle stop and he appeared to be more affected by this

incident than his brother’s death. A peremptory challenge based on a negative experience

13.

with law enforcement is a proper race-neutral reason. (People v. Turner (1994) 8 Cal.4th

137, 171, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn.

5.)

Prospective Juror No. 2468219 previously had been a juror in a criminal case that

resulted in a hung jury; she also had sat on a civil jury that reached a verdict. In addition,

her brother had been in trouble from time to time with the law and at the time of the trial

her brother had violated probation and had a matter pending. When asked why he had

exercised a peremptory against this prospective juror, the prosecutor noted the problems

the prospective juror’s brother had had with law enforcement and her sitting as a juror in

a criminal trial that did not reach a verdict. Again, the prosecutor’s explanations were

race neutral. (Wheeler, supra, 22 Cal.3d at p. 277, fn. 18.)

Finally, Prospective Juror No. 2852410 had had two separate contacts with law

enforcement that this juror viewed as negative experiences. Once again, a prospective

juror’s negative experiences with law enforcement can serve as a valid basis for a

peremptory challenge. (Gutierrez, supra, 28 Cal.4th at p. 1125.)

Defendants wish us to engage in a comparative analysis regarding the

prosecution’s use, or failure to use, peremptory challenges on specific jurors. We do not

engage in a comparative analysis of various juror responses to evaluate the good faith of

the prosecutor’s stated reasons for excusing a particular juror “because comparative

analysis of jurors unrealistically ignores ‘the variety of factors and considerations that go

into a lawyer’s decision to select certain jurors while challenging others that appear to be

similar.’” (Fuentes, supra, 54 Cal.3d at pp. 714-715, quoting Johnson, supra, 47 Cal.3d

at pp. 1219, 1220.) “The purpose of peremptory challenges is to allow a party to exclude

prospective jurors who the party believes may be consciously or unconsciously biased

against him or her. [Citation.]” (People v. Jackson (1992) 10 Cal.App.4th 13, 17.)

“We accord great deference to a trial court’s determination of the sufficiency of a

prosecutor’s explanations for exercising peremptory challenges. [Citations.]” (People v.

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Williams (1997) 16 Cal.4th 635, 666.) The focus of a Batson/Wheeler analysis is on the

subjective genuineness of the reason, not the objective reasonableness. (People v.

Reynoso (2003) 31 Cal.4th 903, 924.) The trial court noted the prosecutor had questioned

all potential jurors in a similar fashion and had asked questions designed to elicit

information regarding suitability to serve on a jury. The trial court analyzed the

prosecutor’s responses and the challenged jurors’ responses to voir dire and found the

prosecutor had race-neutral reasons for dismissing the challenged jurors. We conclude

substantial record evidence supports the trial court’s ruling. Therefore, we will not

reverse the trial court’s denial of the Batson/Wheeler motion.

II. Jury Venire Motion

During voir dire, Prospective Juror No. 2589394 stated she had been a correctional

officer for 22 years and believed that street gangs and prison gangs were connected, that

tattoos tell a story, and she was inclined to believe officers over other witnesses. Defense

counsel argued that the comments from this juror had tainted the entire venire by

expressing a connection between street gangs and prison gangs. Defense counsel moved

to discharge the entire venire and begin voir dire with a new venire. The trial court

denied the motion, stating, “I don’t have an issue believing regardless of what

[Prospective Juror No. 2589394] says, the jury wouldn’t be able to follow the law in this

particular case, even though, in fact” the comments might coincide with what the gang

expert would offer as an opinion. All of the defendants excused this juror.

Enriquez and Ramos contend the trial court abused its discretion in denying the

motion to discharge the entire venire. We disagree.

The California Supreme Court has held that dismissal of the entire venire is a

drastic measure to be taken only in extreme cases. “We believe the trial court possesses

broad discretion to determine whether or not possible bias or prejudice against the

defendant has contaminated the entire venire to such an extreme that its discharge is

required. Defendant cites no case, and we have found none, indicating that such a drastic

15.

remedy is appropriate as a matter of course merely because a few prospective jurors have

made inflammatory remarks…. [D]ischarging the entire venire is a remedy that should

be reserved for the most serious occasions of demonstrated bias or prejudice, where

interrogation and removal of the offending venirepersons would be insufficient protection

for the defendant.” (People v. Medina (1990) 51 Cal.3d 870, 889 (Medina).)

Here, the trial court was within its discretion in denying the motion to excuse the

entire venire. Instances with much more inflammatory comments have not warranted a

discharge of the entire venire. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1468-

1473 [statements before venire about defendant being guilty because he was arrested and

in court and prosecutor must have strong case]; People v. Henderson (1980) 107

Cal.App.3d 475, 493 [prospective juror revealed victim had been her psychotherapy

patient]; People v. Vernon (1979) 89 Cal.App.3d 853, 865 [prospective juror stated

defendant had been tried for raping her niece].)

As the trial court stated, there was no indication that the remarks by one juror

would affect the venire and render them unable to follow the jury instructions that would

be issued by the trial court. There was no error.

III. Evidentiary Issues

Enriquez raises three evidentiary issues, in which Ramos has joined. First, they

contend the trial court erred in allowing the gang expert to testify about the Westside

Shafters subset of the Sureños because there was a lack of foundation for his testimony.

Second, they claim it was error to allow the gang expert to opine that they were active

members of the Sureños gang based upon their involvement in the current offenses. They

also contend it was error to allow Trevino to offer a lay opinion on gangs. Not separately

identified as an issue, but challenged by Ramos and Enriquez in their discussion of

issues, is the admissibility of statements made during jail bookings regarding gang status.

16.

Foundation Challenge

At trial, Harless was allowed to testify as a gang expert. Harless was asked about

the nature of the contact between the Varrio Bakers and the Westside Shafters gangs;

defense counsel objected on the basis of foundation. The trial court overruled the

objection. Harless was allowed to testify that the two gangs commit crimes together.

Enriquez and Ramos contend this was error.

A trial court is given “‘considerable latitude in determining the qualifications of an

expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion

is shown. (People v. Singh (1995) 37 Cal.App.4th 1343, 1377.) In Singh, a prosecution

for fraud in staging accidents for the purpose of submitting false insurance claims, the

appellate court affirmed a conviction based on expert testimony by law enforcement

officers, even though they had not personally investigated the automobiles involved or

the accident scenes, relying instead only on statements of witnesses and various reports.

The appellate court noted, “Such an approach is not uncommon … when expert

witnesses become involved at trial” and that deficiencies in the foundation of the expert’s

opinions properly were explored on cross-examination. (Ibid.)

In People v. Hogan (1982) 31 Cal.3d 815, the Supreme Court reversed a

conviction for capital murder, in part because a criminalist was allowed to testify about

blood spatter patterns when his experience and training in that area were “nonexistent.”

(Id. at p. 852.) He had never performed any laboratory analysis in any case; he had

received no formal education or training; and his background on the subject consisted of

reading a book on flight patterns of blood and viewing an exhibit prepared by “some

unknown criminalist” that demonstrated patterns of human blood dropped from various

heights and angles. (Ibid.) Finally, while he had observed bloodstains at many crime

scenes, and had determined in his own mind whether they were spatters or “wipes,” he

had never verified his conclusions in any way.

17.

In contrast, Harless had been assigned to the gang unit for over two years as of the

time of the trial, and part of his duties included testifying as a gang expert at criminal

trials in Kern County. He had received 90 hours of formalized training on gangs, with

over half that training time focused on Hispanic gangs. Harless provided gang training to

recruits at the police academy. He was a member of the Kern County Gang Investigators

Association, an organization of various law enforcement agencies that share information

about gangs and gang trends. Harless specialized in Black and Hispanic gangs and had

testified as a gang expert 38 times prior to his testimony in defendants’ trial.

Based upon the above credentials, the trial court allowed Harless to testify as an

expert witness. “‘“Where a witness has disclosed sufficient knowledge of the subject to

entitle his opinion to go to the jury, the question of the degree of his knowledge goes

more to the weight of the evidence than its admissibility.”’ [Citation.]” (People v.

Bolin (1998) 18 Cal.4th 297, 322.) Here, sufficient training, education, and experience

supported the trial court’s decision to allow Harless to testify as an expert; any claimed

deficiency of knowledge about the Westside Shafters subset of Sureños was appropriate

for cross-examination and relevant to the weight that should be afforded the testimony.

Active Gang Member Testimony

Enriquez and Ramos next contend the trial court violated their right to due process

when it allowed Harless to testify they were active Sureños gang members based upon

the current offenses. They argue that allowing Harless to testify that in his opinion they

were active gang members constituted allowing Harless to testify to his opinion on how

the case should be decided and was based on erroneous information.

Expert opinion testimony is admissible if the subject matter of the testimony is

“sufficiently beyond common experience that the opinion of an expert would assist the

trier of fact.” (Evid. Code, § 801, subd. (a); see People v. Gardeley (1996) 14 Cal.4th

605, 617.) The subject matter of the culture and habits of street gangs meets the criteria

for the admissibility of expert opinion because such evidence is sufficiently beyond

18.

common experience that the opinion of an expert would assist the trier of fact.

(Gardeley, at p. 617.) Such areas include “testimony about the size, composition or

existence of a gang [citations], gang turf or territory [citations], an individual defendant’s

membership in, or association with, a gang [citations], the primary activities of a specific

gang [citations], motivation for a particular crime, generally retaliation or intimidation

[citations], whether and how a crime was committed to benefit or promote a gang

[citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand

signs [citations], and gang colors or attire [citations].” (People v. Killebrew (2002) 103

Cal.App.4th 644, 657, italics added, fns. omitted.)

A gang expert may testify concerning whether the defendant was a gang member

or acted for the benefit of a gang, even though it is an ultimate factual issue for the jury to

decide, because these are matters far beyond the common experience of the jury and

justified expert testimony. (People v. Valdez (1997) 58 Cal.App.4th 494, 508-510.)

Consequently, there was no due process violation by allowing Harless to testify that in

his opinion Enriquez and Ramos were current gang members.

We do not find support in the record for the claim that Harless relied upon

inaccurate information or just the alleged participation in the current offenses in reaching

this opinion. In opining that Enriquez was a gang member, Harless relied upon reports of

prior law enforcement contacts with Enriquez, in which he admitted gang membership in

the Varrio Westside Shafters gang. Harless also noted Enriquez’s gang moniker and

gang tattoos as informing his opinion. Although Harless also noted that the current

offenses were committed in the company of and with the assistance of other Sureños

gang members, and that Trevino testified Enriquez was a member of the Varrio Westside

Shafters subset of the Sureños, this information clearly was not the only basis for

Harless’s opinion.

Harless also opined that Ramos was an active member of the Varrio Bakers subset

of the Sureños. Again, the alleged participation in the current offenses was not the sole

19.

basis for the opinion. In prior contacts with law enforcement, Ramos had acknowledged

gang membership, had used a gang moniker, wore gang indicia, and was in the company

of other gang members. Ramos had claimed Sureños affiliation multiple times when

booked into jail.

There was no error in allowing expert opinion that Ramos and Enriquez were

members of the Varrio Bakers and Varrio Westside Shafters, respectively.

Booking Statements

Enriquez and Ramos challenge the admissibility and use of their statements during

jail bookings regarding gang affiliation. To assure protection of the Fifth Amendment

privilege against self-incrimination, a suspect may not be subjected to an interrogation

while in custody unless he or she previously has been advised of and has knowingly and

intelligently waived his or her rights to silence, to the presence of an attorney, and to

appointed counsel if he or she is indigent. Statements made in violation of Miranda1 are

inadmissible to establish guilt. (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1480-

1481.)

In Pennsylvania v. Muniz (1990) 496 U.S. 582, a four-justice plurality recognized

“a ‘routine booking question’ exception which exempts from Miranda’s coverage

questions to secure the ‘“biographical data necessary to complete booking or pretrial

services.”’” (Id. at p. 601 (plur. opn. of Brennan, J.).) Questioning about possible gang

affiliations for housing purposes is now a routine question that is asked at booking. “The

routine booking interview is an indispensable procedure in the efficient administration of

justice.” (People v. Quiroga (1993) 16 Cal.App.4th 961, 971.)

Questioning about gang affiliations is a security question that must be asked to

facilitate safe housing in the jails. Both Enriquez and Ramos answered booking

1Miranda v. Arizona (1966) 384 U.S. 436.

20.

questions on gang affiliation when booked into jail on charges unrelated to the current

offenses.

Furthermore, section 1220 of the Evidence Code provides an exception to the

hearsay rule for statements that are offered against the declarant in an action to which he

or she is a party. The statements of gang affiliation made at jail bookings are admissible

under this exception. As a statutory exception to the hearsay rule, an admission is

considered reliable. (People v. Earnest (1975) 53 Cal.App.3d 734, 741.)

It was not error to permit Harless to rely upon statements of gang affiliation made

at jail bookings.

Trevino Lay Opinion

Trevino testified to (1) the gang subsets of the three defendants, (2) the subsets

being part of the Sureños, (3) the subsets of Sureños in Kern County of which he was

aware, (4) the connection between Sureños inside and outside of prison, (5) the structure

and hierarchy of the Sureños, (6) the use of gang monikers, (7) the induction of gang

members, and (8) the activity of gang members after induction. Enriquez, joined by

Ramos, argues that the trial court violated his due process rights by allowing Trevino to

offer a lay opinion on matters of which he had no personal knowledge. Again, we find

no support for this contention in the record.

At the time of the offenses, Trevino was a member of the Varrio Wasco Rifa, a

subset of the Sureños. He had been inducted into the gang and a member for 20 years

and during that time had committed offenses for the benefit of the gang. Trevino had

been given authority and influence over activities of gang members in his neighborhood.

Also during this time, Trevino came into contact with members of other subsets of the

Sureños and committed crimes with members of other subsets. While in prison, Trevino

had contact with other Sureños about criminal activity occurring in and out of the prison.

Trevino had spoken with Enriquez, Gutierrez, and Ramos, and each identified his gang

subset to Trevino.

21.

Enriquez and Ramos also claim that Trevino was not a member of the Mexican

Mafia and therefore could not testify to its hierarchy. We disagree. Trevino, as a 20-year

member, could testify to his understanding of the hierarchy of the Sureños and the

hierarchy involved the Mexican Mafia. The claim that Trevino was from Wasco, an area

geographically separate from Bakersfield and Shafter, and therefore somehow not able to

offer a lay opinion, also fails. Trevino could, and did, testify about matters to which he

had personal knowledge. Any contention that his testimony should not be credited

because of his location in Wasco goes to the weight, not admissibility. (Medina, supra,

51 Cal.3d at p. 887.)

The admissibility of lay opinion is reviewed for abuse of discretion. (People v.

Thornton (2007) 41 Cal.4th 391, 453.) Here, there was no abuse of discretion.

IV. Insufficiency of the Evidence

All three defendants raise challenges to the sufficiency of the evidence. Enriquez

and Gutierrez challenge the sufficiency of the evidence of intent to kill. Enriquez also

challenges the sufficiency of the evidence of premeditation and deliberation, aiding and

abetting attempted murder, aiding and abetting assault with a firearm, the gang

enhancements, and that his prior conviction constituted a strike offense. Enriquez and

Ramos challenge the sufficiency of the evidence supporting the substantive gang offense

and contend they were denied due process because they were convicted on less than

substantial evidence. Gutierrez contends there was insufficient corroboration of

accomplice testimony; consequently, all the convictions must be reversed.

We disagree with all these contentions.

Standard of Review

The standards that govern review of the sufficiency of the evidence supporting

convictions also apply to enhancements. (People v. Albillar (2010) 51 Cal.4th 47, 59-60

(Albillar).) The standard of review is familiar -- “‘“When the sufficiency of the evidence

is challenged on appeal, the court must review the whole record in the light most

22.

favorable to the judgment to determine whether it contains substantial evidence—i.e.,

evidence that is credible and of solid value—from which a rational trier of fact could

have found the defendant guilty beyond a reasonable doubt.”’ [Citations.]” (People v.

Hill (1998) 17 Cal.4th 800, 848-849; see People v. Villalobos (2006) 145 Cal.App.4th

310, 321-322; People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457.)

This familiar standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. “Once a defendant has been found guilty of

the crime charged, the factfinder’s role as weigher of the evidence is preserved through a

legal conclusion that upon judicial review all of the evidence is to be considered in the

light most favorable to the prosecution.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.)

“Before a judgment of conviction can be set aside for insufficiency of the evidence to

support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever

is there sufficient evidence to support it.” (People v. Rehmeyer (1993) 19 Cal.App.4th

1758, 1765.)

“‘It is axiomatic that an appellate court defers to the trier of fact on such

determinations, and has no power to judge the effect or value of, or to weigh the

evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make

inferences or deductions from the evidence. We review a cold record and, unlike a trial

court, have no opportunity to observe the appearance and demeanor of the witnesses.

[Citation.] “Issues of fact and credibility are questions for the trial court.” [Citations.] It

is not an appellate court’s function, in short, to redetermine the facts.’” (In re S.A. (2010)

182 Cal.App.4th 1128, 1140, quoting In re Sheila B. (1993) 19 Cal.App.4th 187, 199-

200.)

The defendant has the burden of showing there is no evidence of a sufficiently

substantial nature to support the verdict. (In re Cole C. (2009) 174 Cal.App.4th 900, 915-

916.)

23.

Accomplice Testimony

Gutierrez and Enrique contend the evidence was insufficient to corroborate the

testimony of accomplices Fuller and Trevino.

Adequate corroboration of an accomplice’s testimony need not in itself be

sufficient to convict the defendant; it may be slight and entitled to little consideration

when standing alone. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128 (Rodrigues);

People v. Douglas (1990) 50 Cal.3d 468, 507 (Douglas).) It need only “tend[] to connect

the defendant with the crime so that the jury may be satisfied that the accomplice is

telling the truth.” (Douglas, at p. 506, fn. omitted.) The corroborating evidence may be

circumstantial and may consist of a defendant’s conduct or statements. (Id. at p. 507.) It

thus may be evidence that shows a consciousness of guilt. (People v. Hurd (1970) 5

Cal.App.3d 865, 875.)

The corroborating evidence must tend to connect the defendant to the crime, but it

neither has to establish every element of the offense nor corroborate all of the

accomplice’s testimony. (People v. Heishman (1988) 45 Cal.3d 147, 164-165

(Heishman).) Although the corroborating evidence need only tend to connect the

defendant to the crime, it must do more than raise a mere conjecture or suspicion of guilt.

(People v. Szeto (1981) 29 Cal.3d 20, 27.) “[I]t is not sufficient to merely connect a

defendant with the accomplice or other persons participating in the crime. The evidence

must connect the defendant with the crime, not simply with its perpetrators.

[Citations.]” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)

“‘A defendant’s own conduct, declarations and testimony may furnish adequate

corroboration for the testimony of an accomplice.’” (People v. Williams, supra, 16

Cal.4th at p. 680; accord, Avila, supra, 38 Cal.4th at p. 563 [“Defendant’s initial attempt

to conceal from the police his involvement in the activities culminating in the murders

implied consciousness of guilt constituting corroborative evidence.”].) False and

contradictory statements of a defendant regarding the charge are material corroborating

24.

evidence. (People v. Santo (1954) 43 Cal.2d 319, 327; People v. Taylor (1924) 70

Cal.App. 239, 244; People v. McLean (1890) 84 Cal. 480, 481 [accomplice testimony

sufficiently corroborated by evidence the defendant “made contradictory statements

concerning his whereabouts on the night of the fire” and “took measures to get the

accomplice to leave that part of the country”].)

“‘The trier of fact’s determination on the issue of corroboration is binding on the

reviewing court unless the corroborating evidence should not have been admitted or does

not reasonably tend to connect the defendant with the commission of the crime.’

[Citations.]” (People v. Abilez (2007) 41 Cal.4th 472, 505 (Abilez); McDermott, supra,

28 Cal.4th at p. 986; see People v. Narvaez (2002) 104 Cal.App.4th 1295, 1303.)

Gutierrez and Enriquez claim there that was insufficient corroborating evidence

placing them at the scene of the crime, that Gutierrez was the shooter, and that Enriquez

was present in the SUV at the time of the shooting.

Schuetze testified Gutierrez was in her apartment and had gone with her and

others in Fuller’s SUV to the motel to pick up drugs. Schuetze saw the shotgun in the

SUV as they drove to the motel. Gutierrez gave her shotgun shells to hold. At the motel,

Schuetze heard Ramos and Langston arguing. She saw the SUV leave; Gutierrez and

Enriquez no longer were at the motel. She heard gunshots shortly thereafter. Langston

identified the person he was arguing with as Ramos. Langston also stated that he was

pursued and shot by someone riding in the SUV. This evidence, taken together, was

sufficient to “tend to connect” Gutierrez and Enriquez to the offenses; it need not be

sufficient by itself to warrant a conviction. (Rodrigues, supra, 8 Cal.4th at p. 1128;

Douglas, supra, 50 Cal.3d at p. 506.)

While Gutierrez especially attempts to assert that there is a lack of corroborating

evidence for specific facts, it is well established that independent evidence need not

corroborate every fact. (Heishman, supra, 45 Cal.3d at pp. 164-165.) The jury’s

25.

determination on the issue of corroboration is binding on this court. (Abilez, supra, 41

Cal.4th at p. 505.)

Intent to Kill

Enriquez and Gutierrez both challenge the sufficiency of the evidence of intent to

kill. Gutierrez was the shooter; Enriquez was convicted based upon an aiding and

abetting theory.

“Attempted murder requires the specific intent to kill and the commission of a

direct but ineffectual act toward accomplishing the intended killing. [Citation.]” (People

v. Lee (2003) 31 Cal.4th 613, 623 (Lee).) Enriquez and Gutierrez contend the evidence

was insufficient to establish intent to kill.

“[I]t is well settled that intent to kill or express malice, the mental state required to

convict a defendant of attempted murder, may in many cases be inferred from the

defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct

evidence of a defendant’s intent. Such intent must usually be derived from all the

circumstances of the attempt, including the defendant’s actions.…’” (People v.

Smith (2005) 37 Cal.4th 733, 741 (Smith).)

“[T]he act of purposefully firing a lethal weapon at another human being at close

range, without legal excuse, generally gives rise to an inference that the shooter acted

with express malice. That the shooter had no particular motive for shooting the victim is

not dispositive, although … where motive is shown, such evidence will usually be

probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark

or fails to prove lethal dispositive—the very act of firing a weapon ‘“in a manner that

could have inflicted a mortal wound had the bullet been on target”’ is sufficient to

support an inference of intent to kill. [Citation.]” (Smith, supra, 37 Cal.4th at p. 742.)

Gutierrez claims the evidence of intent to kill is insufficient because his first shot

missed Langston and the second shot was with a shell containing birdshot, which

Gutierrez contends could not have killed Langston unless he was shot at close range.

26.

We summarily dispense with Gutierrez’s contention that there was no intent to kill

because his first shot missed Langston. That the bullet misses its mark or fails to prove

lethal is not dispositive—the “very act of firing a weapon ‘“in a manner that could have

inflicted a mortal wound had the bullet been on target”’” is sufficient to support an

inference of intent to kill. (Smith, supra, 37 Cal.4th at p. 742.) Missing his target merely

demonstrates that Gutierrez may have been a poor shot, not that he lacked intent to kill.

Gutierrez’s claim that he lacked an intent to kill because his second shot was with

a shell full of buckshot also is rejected. Gutierrez fired at least three shots while pursuing

Langston, who was attempting to get away; only one shot struck Langston. The act of

firing multiple shots while pursuing Langston as he attempted to get away clearly

supports an inference that Gutierrez was attempting to kill Langston. (People v. Lashley

(1991) 1 Cal.App.4th 938, 945-946 (Lashley).) Again, Gutierrez’s poor marksmanship

and inability to get closer to Langston as Langston was fleeing do not compel a

conclusion that Gutierrez lacked intent to kill. (Ibid.)

As for Enriquez, “to be guilty of attempted murder as an aider and abettor, a

person must give aid or encouragement with knowledge of the direct perpetrator’s intent

to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the

intended killing—which means that the person guilty of attempted murder as an aider and

abettor must intend to kill. [Citation.]” (Lee, supra, 31 Cal.4th at p. 624.) Enriquez

raises a similar contention as Gutierrez in asserting lack of an intent to kill, specifically,

that shooting at someone with birdshot could not have resulted in the person’s death. As

we noted previously, however, just because a shot misses the intended victim, or is not

fatal, does not, as a matter of law, mandate a conclusion there was no intent to kill.

(Smith, supra, 37 Cal.4th at p. 742; Lashley, supra, 1 Cal.App.4th at pp. 945-946.)

The case of People v. Campbell (1994) 25 Cal.App.4th 402 is instructive. In

Campbell, codefendant Smith’s convictions for aiding and abetting an attempted robbery

and attempted murder were upheld based on his presence during the robbery and his

27.

postoffense conduct. During the robbery, codefendant Campbell produced a handgun

and aimed it at the victim. On appeal, Smith claimed the evidence showed only that he

was present when Campbell attempted to rob the victim. This contention was decisively

rejected. The trial court pointed out that Smith was not surprised by Campbell’s conduct

or afraid to interfere with it. The trial court found that “[t]heir concerted action

reasonably implies a common purpose” and that the jury could find Smith’s act of

standing in front of the victims was intended “to intimidate and block them, divert

suspicion, and watch out for others who might approach. Such conduct is a textbook

example of aiding and abetting.” (Id. at p. 409.)

That same reasoning applies here. Enriquez and Gutierrez watched as Ramos and

Langston argued. Ramos called out to them; both men responded and went to support

Ramos. Ramos made eye contact with Enriquez and told him he was going to get a gun.

Enriquez, Trevino, and Gutierrez got into the SUV and Enriquez told the others that

Ramos was going to get a gun. Gutierrez responded that he already had a gun with him

in the SUV.

When the SUV stopped, it was Enriquez who pointed out Langston’s location to

Gutierrez. Gutierrez hopped out of the SUV saying, “Let’s take care of this fool right

now.” Gutierrez chased Langston while firing three shots at him, stopped to pick up the

expended shell casings, and then got back into the SUV. After the shooting, it was

Enriquez who drove the SUV away from the site of the shooting.

We conclude there was sufficient evidence of defendant Enriquez’s aiding and

abetting murder.

Premeditation and Deliberation

Enriquez argues there was insufficient evidence to support the premeditation and

deliberation finding. We disagree.

In assessing the evidence for premeditation and deliberation, “‘The true test is not

the duration of time, but rather the extent of the reflection. A cold, calculated judgment

28.

and decision may be arrived at in a short period of time, but a mere unconsidered and

rash impulse, even though it include[d] an intent to kill, is not such deliberation and

premeditation .…’” (People v. Perez (1992) 2 Cal.4th 1117, 1124.) “‘Thoughts may

follow each other with great rapidity and cold, calculated judgment may be arrived at

quickly .…’” (People v. Velasquez (1980) 26 Cal.3d 425, 435.)

Here, the evidence of premeditation and deliberation is the same as that showing

an intent to kill. After Ramos had an altercation with Langston and told Enriquez he was

going to get a gun, Enriquez rounded up the other members of his gang that were present

and got into the SUV. Enriquez then informed the others that Ramos had gone to fetch a

gun; Gutierrez responded by stating he had a gun in the SUV. Enriquez went with the

others in the SUV to hunt down Langston and then pointed out Langston to the others

when Enriquez spotted him on the street. Gutierrez pursued Langston with the shotgun,

firing at Langston three times from a distance of between three and 20 feet.

Enriquez had more than ample time to deliberate on his actions. This was not a

rash or sudden action that happened rapidly. It took time to locate Langston, time during

which Enriquez had an opportunity to reflect on and consider his actions. In light of

these facts, there was substantial evidence upon which a jury reasonably could have

found the attempted murder to be deliberate and premeditated.

Assault with a Firearm

Enriquez was convicted of aiding and abetting assault with a firearm and he

contends the evidence was insufficient to sustain the conviction. This argument is based

on the premise there was insufficient corroboration of accomplice testimony to sustain

the conviction. As we previously concluded, the accomplice testimony was adequately

corroborated by Schuetze, Harless, and others. Consequently, this contention is rejected.

29.

Substantive Gang Offense

Enriquez and Ramos contend the evidence was insufficient to sustain the

conviction for the substantive gang offense under Penal Code section 186.22, subdivision

(a).2 We disagree.

The section 186.22, subdivision (a) substantive gang offense is comprised of three

elements: (1) active participation in a criminal street gang; (2) knowledge that the gang’s

members have engaged in a pattern of criminal gang activity; and (3) the willful

promotion, furtherance, or assistance in any felonious criminal conduct by members of

that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.) In People v. Rodriguez (2012)

55 Cal.4th 1125, the California Supreme Court clarified that in order to satisfy the third

element, a defendant must willfully advance, encourage, contribute to, or help members

of his or her gang commit felonious criminal conduct. (Id. at p. 1132.) “The plain

meaning of section 186.22(a) requires that felonious criminal conduct be committed by at

least two gang members, one of whom can include the defendant if he is a gang

member.” (Ibid.)

Here, Enriquez contends there was insufficient evidence the Varrio Westside

Shafters was a “criminal street gang” and that he actively participated in the gang.

Ramos contends the evidence was insufficient on all three elements of the offense.

In Albillar, supra, 51 Cal.4th 47, the California Supreme Court rejected the

argument that the offense defined by section 186.22, subdivision (a) includes “an

unwritten requirement that the ‘felonious criminal conduct’ that is promoted, furthered,

or assisted be gang related[.]” (Albillar, at p. 51.)

The court explained: “The gravamen of the substantive offense set forth in section

186.22(a) is active participation in a criminal street gang.… [T]he phrase ‘actively

participates’ reflects the Legislature’s recognition that criminal liability attaching to

2All further statutory references are to the Penal Code unless otherwise noted.

30.

membership in a criminal organization must be founded on concepts of personal guilt

required by due process: ‘a person convicted for active membership in a criminal

organization must entertain “guilty knowledge and intent” of the organization’s criminal

purposes.’ [Citation.] Accordingly, the Legislature determined that the elements of the

gang offense are (1) active participation in a criminal street gang, in the sense of

participation that is more than nominal or passive; (2) knowledge that the gang’s

members engage in or have engaged in a pattern of criminal gang activity; and (3) the

willful promotion, furtherance, or assistance in any felonious criminal conduct by

members of that gang. [Citation.] All three elements can be satisfied without proof the

felonious criminal conduct promoted, furthered, or assisted was gang related.” (Albillar,

supra, 51 Cal.4th at pp. 55-56.)

Enriquez and Ramos claim there was a lack of evidence establishing Varrio

Westside Shafters as a criminal street gang. Much of the argument from Enriquez and

Ramos centers on the fact that testimony about the activities of the gang often referred to

the Sureños gang, not specifically the Varrio Westside Shafters gang. Evidence

establishing a criminal street gang’s activities, however, “need not necessarily be specific

to a particular local street gang as opposed to the larger organization. [Citations.]”

(People v. Williams (2008) 167 Cal.App.4th 983, 987; see, e.g., People v. Hawthorne

(1992) 4 Cal.4th 43, 53.)

The People argued at trial that the criminal street gang at issue was the Sureños

gang, of which Varrio Westside Shafters and Varrio Bakers were subsets. Harless

testified as a gang expert that the primary activities of the Sureños gang included

murders, assaults, shootings, carjacking, auto theft, burglary, and narcotics offenses. The

primary activities to which Harless testified fall squarely within the offenses enumerated

in section 186.22, subdivision (f). Harless also testified that the Sureños were involved in

an ongoing pattern of criminal activity. Harless opined that both Varrio Bakers and

31.

Varrio Westside Shafters were part of the Sureños gang. Trevino also testified that

Varrio Bakers and Varrio Westside Shafters were part of the Sureños gang.

The evidence establishing the primary activities of the Sureños, and that Varrio

Bakers and Varrio Westside Shafters were part of the Sureños gang, was sufficient to

establish the primary activities and predicate offenses of the overarching criminal street

gang to which Ramos and Enriquez belonged.

Ramos and Enriquez also contend there was insufficient evidence they actively

participated in the gang. Active participation in the gang is involvement that is more than

nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747.)

As for Ramos, on August 18 and September 3, 2008, he acknowledged being a

member of the Varrio Bakers. On five different occasions between March 30, 1997, and

July 31, 2011, including his arrest for the current offenses, Ramos claimed he was a

member of the Sureños gang and needed to be kept away from rival Norteños when

booked into jail. Harless testified that Ramos was an active member of the Varrio Bakers

subset of the Sureños. Ramos sported gang tattoos and had a gang moniker. Ramos, on

more than one occasion, was in the company of another Varrio Bakers gang member.

This evidence was sufficient to establish that Ramos’s involvement was more than

nominal or passive and that he was an active gang member. (People v. Martinez (2008)

158 Cal.App.4th 1324, 1331.)

The evidence similarly establishes that Enriquez was an active member of the

gang. Harless testified Enriquez was an active member of the gang. Enriquez was in the

company of Varrio Westside Shafters gang members during prior contacts with law

enforcement and had a gang moniker. On five occasions between September 23, 2010,

and August 6, 2011, Enriquez was booked into the jail and asked to be kept away from

Norteños. He acknowledged being a member of the Varrio Westside Shafters subset of

the Sureños. Enriquez had multiple gang tattoos on his head, neck, face, and hands. This

was sufficient evidence to establish that Enriquez’s involvement with the gang was more

32.

than nominal or passive and he was an active member of the gang. (People v. Martinez,

supra, 158 Cal.App.4th at p. 1331.)

The willful promotion element also was supported by sufficient evidence. Ramos

was involved in an altercation with Langston and called out to his “Southside homies” to

assist him; Ramos also called out for his fellow gang members to get a gun. Enriquez

complied with Ramos’s call for “homies” to assist him. It was Enriquez who then had his

fellow gang members get into the SUV to follow Langston, pointed out Langston so he

could be shot, and then drove the SUV from the crime scene.

The shooting of Langston, who had “disrespected” a Sureños gang member,

furthered the purposes of the gang by showing the level of violence the gang would use,

increasing the gang’s status. Further, gang members gain respect and increase their status

within the gang by committing crimes of violence. The shooting creates intimidation and

fear and deters others from interfering with the gang’s activities.

Finally, Ramos challenges the sufficiency of the evidence demonstrating he had

any knowledge that the gang’s members had engaged in a pattern of criminal activity.

Circumstantial evidence establishes that Ramos had the requisite knowledge. (People v.

Lewis (2001) 26 Cal.4th 334, 379.)

Harless testified that members of gangs know about the ongoing criminal activities

of the gang. Ramos was a “shot-caller” and had an elevated status in the gang. Trevino

testified that when a gang member commits a crime, he wants other gang members to

know about it because it increases the person’s status within the gang. Trevino also

testified that a member works his way up in the gang by committing crimes. From 1997

until his arrest for the current offenses, Ramos claimed membership in the Varrio Bakers

subset of the Sureños. This information, taken together, was sufficient circumstantial

evidence establishing that Ramos had knowledge the gang’s members engaged in a

pattern of criminal activity. (People v. Lewis, supra, 26 Cal.4th at p. 379.)

33.

Gang Enhancement

Enriquez argues the evidence was insufficient to support the gang enhancement set

forth in section 186.22, subdivision (b). Section 186.22, subdivision (b) has two prongs:

(1) conviction of a felony 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.

Enriquez repeats the same argument as with the gang offense -- that the evidence

was insufficient because the primary activities and predicate offenses testified to at trial

concerned the Sureños gang, not specifically the Varrio Westside Shafters subset. As

discussed, ante, evidence establishing a criminal street gang’s activities, however, “need

not necessarily be specific to a local street gang as opposed to the larger organization.”

(People v. Williams, supra, 167 Cal.App.4th at p. 987.)

The second prong is satisfied if “substantial evidence establishes that the

defendant intended to and did commit the charged felony with known members of a

gang, the jury may fairly infer that the defendant had the specific intent to promote,

further, or assist criminal conduct by those gang members.” (Albillar, supra, 51 Cal.4th

at p. 68.) The second prong is established because Enriquez committed the offenses with

other known members of the Sureños gang, including Ramos and Gutierrez.

Strike Prior

Enriquez contends the evidence was insufficient to support the finding that his

prior conviction for possession of a loaded firearm in public by an active gang member

was a serious felony and strike offense. We disagree.

A prior conviction qualifies as a strike if it is for an offense “defined in

subdivision (c) of Section 667.5 as a violent felony or . . . defined in subdivision (c) of

Section 1192.7 as a serious felony in this state.” (§§ 667, subd. (d)(1), 1170.12,

subd. (b)(1).) The list of serious felonies set forth in section 1192.7, subdivision (c)

34.

includes any felony offense that would also constitute a felony violation of section

186.22. (§ 1192.7, subd. (c)(28).) The California Supreme Court determined that section

1192.7, subdivision (c)(28) includes the substantive gang offense and any felony

committed for the benefit of a criminal street gang as defined in section 186.22,

subdivision (b)(1). (People v. Briceno (2004) 34 Cal.4th 451, 456, 464.)

Enriquez pled no contest to a violation of former section 12031, subdivision

(a)(2)(C) in 2010.3 Effective January 1, 2012, former section 12031 was repealed and

section 25850 became operative; it was a nonsubstantive reorganization of deadly

weapons statutes. (Stats. 2010, ch. 711, §§ 4, 6; People v. Elliott (2012) 53 Cal.4th 535,

587, fn. 7.) Former Section 12031, subdivision (a)(2)(C) made it a felony for a criminal

street gang member to carry a loaded firearm in public.

Section 1016 explicitly provides that the legal effect of a no contest plea to a crime

punishable as a felony is the same for all purposes as a plea of guilty. (People v. Ramirez

(2006) 141 Cal.App.4th 1501, 1506.) Thus, Enriquez’s plea constitutes “a judicial

admission of every element of the offense charged.” (People v. Chadd (1981) 28 Cal.3d

739, 748 (Chadd).)

In People v. Robles (2000) 23 Cal.4th 1106 (Robles), the California Supreme

Court determined that the reference in former section 12031, subdivision (a)(2)(C) to

active participation in a criminal street gang referred to the substantive gang offense set

forth in section 186.22, subdivision (a) and encompassed all elements of the substantive

gang offense. (Robles, at p. 1115.) When a defendant satisfied the elements of the

section 186.22, subdivision (a) offense and carried a loaded firearm in public, the offense

was a felony. (Robles, at p. 1115.)

3Former section 12031 was first adopted in 1967 and last amended in 2009 before

being repealed and recodified. (Stats. 1967, ch. 960, § 1; Stats. 2009, ch. 288, § 1.)

35.

Here, in 2010 Enriquez pled no contest, the equivalent of a guilty plea, to the

offense set forth in former section 12031, subdivision (a)(2)(C), 10 years after Robles

was published and six years after Briceno was published. Enriquez’s plea constitutes “a

judicial admission of every element of the offense charged.” (Chadd, supra, 28 Cal.3d at

p. 748.) Every element of the offense charged included all the elements of the

substantive gang offense under section 186.22, subdivision (a). (Robles, supra, 23

Cal.4th at p. 1115.) At the time of his plea, Enriquez was advised by the trial court of the

consequences of pleading to a serious felony. Enriquez cannot now claim that his plea

constituted an admission of only a portion of the elements of the substantive gang

offense.

Conclusion

The test on appeal for whether there was sufficient evidence to uphold a

conviction is whether there was substantial evidence to support the conclusion of the trier

of fact -- it is not whether guilt was established beyond a reasonable doubt. (In re Ryan

N. (2001) 92 Cal.App.4th 1359, 1371-1372.) Here, there was sufficient evidence and

defendants’ challenges to the sufficiency of the evidence fail.

V. Instructional Issues

Gutierrez and Enriquez raise multiple instructional issues; Ramos has joined in

two of these issues. Gutierrez contends the trial court made several instructional errors,

including (1) CALCRIM No. 302 lessens the prosecution’s burden of proof;

(2) CALCRIM No. 335 fails to instruct the jury adequately on accomplice testimony;

(3) by allowing slight evidence to corroborate accomplice testimony, CALCRIM No. 335

undermines the presumption of innocence; and (4) error to instruct the jury that potential

punishment being faced by a witness could not be considered in assessing the witness’s

credibility. Enriquez, joined by Ramos, contends it was error to instruct with CALCRIM

Nos. 337 and 3550 and failure to instruct the jury that Schuetze was an accomplice as a

matter of law and that her testimony had to be corroborated independently.

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Standard of Review

In considering a claim of instructional error we must first ascertain what the

relevant law provides and then determine what meaning the instruction conveys. “The

test is whether there is a reasonable likelihood that the jury understood the instruction in a

manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th

579, 585.) We evaluate whether an instruction is misleading by reviewing the jury

charge as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) Instructions

are not considered in isolation. (People v. Holt (1997) 15 Cal.4th 619, 677.) “‘“[T]he

correctness of jury instructions is to be determined from the entire charge of the court, not

from a consideration of parts of an instruction or from a particular instruction.”’

[Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 (Musselwhite); see

People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) “An instruction can only be

found to be ambiguous or misleading if, in the context of the entire charge, there is a

reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]”

(Campos, at p. 1237.)

In reviewing a claim of instructional error, we must assume that jurors are

intelligent persons and capable of understanding and correlating all jury instructions that

are given. (People v. Richardson (2008) 43 Cal.4th 959, 1028 (Richardson).) Juries are

presumed to follow the trial court’s instructions, unless the record affirmatively indicates

otherwise. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83 (Coffman and

Marlow).) When considering a claim that the trial court improperly instructed the jury, a

reviewing court must determine whether there is a reasonable likelihood the jury

construed or applied the instructions in an objectionable fashion. (People v.

Osband (1996) 13 Cal.4th 622, 685-686.) We review all instructions given, not just the

instruction complained of, to determine whether the jury charge as a whole is correct.

(Musselwhite, supra, 17 Cal.4th at p. 1249.)

37.

CALCRIM No. 302

Gutierrez contends CALCRIM No. 302 lessens the prosecution’s burden of proof.

CALCRIM No. 302 reads:

“If you determine there is a conflict in the evidence, you must decide what

evidence, if any, to believe. Do not simply count the number of witnesses

who agree or disagree on a point and accept the testimony of a greater

number of witnesses. On the other hand, do not disregard the testimony of

any witness without a reason or because of prejudice or a desire to favor

one side or the other. What is important is whether the testimony or any

other evidence convinces you, not just the number of witnesses who testify

about a certain point.”

Gutierrez claims that when applied to prosecution evidence, the instruction is

correct; but when applied to defense evidence and testimony, the jury may interpret the

instruction as requiring believable and convincing proof before accepting defense

testimony, rather than accepting exculpatory evidence that “possibly” could be true.

First, Gutierrez has forfeited this argument by not objecting to the instruction in

the trial court or requesting a clarifying instruction. If the defendant believes that an

instruction is incomplete or needs elaboration, then he or she is obligated to request an

additional or clarifying instruction. (People v. Maury (2003) 30 Cal.4th 342, 426.) “The

long-standing general rule is that the failure to request clarification of an instruction that

is otherwise a correct statement of law forfeits an appellate claim of error based upon the

instruction given.” (People v. Rundle (2008) 43 Cal.4th 76, 151 (Rundle).)

Second, Gutierrez’s interpretation of the language of CALCRIM No. 302

previously has been addressed, and rejected, in People v. Anderson (2007) 152

Cal.App.4th 919, 938-940. As the appellate court noted in Anderson, not only is the

argument based on a misreading of the instruction, but it ignores the fact the jury receives

other instructions on evaluating testimony of witnesses. We presume the jury

understood, correlated, and followed the instructions. (People v. Sanchez (2001) 26

38.

Cal.4th 834, 852 [jurors “are presumed able to understand and correlate instructions and

are further presumed to have followed the court’s instructions”].)

Consequently, not only has Gutierrez forfeited this issue by failing to seek a

clarifying instruction in the trial court, it fails on the merits.

CALCRIM No. 335

Gutierrez next contends that CALCRIM No. 335 undermines the presumption of

innocence and stated a lesser burden for the prosecution than proof beyond a reasonable

doubt by permitting the jury to find that accomplice evidence was corroborated by “slight

evidence.” Again, Gutierrez failed to object to this instruction, or request any clarifying

language, in the trial court. As such, he has forfeited any claim of error. (People v.

Virgil (2011) 51 Cal.4th 1210, 1260.)

Moreover, the statement that accomplice testimony need be corroborated by only

slight evidence is a correct statement of the law. (§ 1111; People v. Zapien (1993)

4 Cal.4th 929, 982.) The corroboration requirement of section 1111 is a collateral factual

issue, not an element of the charged offense that must be proven beyond a reasonable

doubt. (People v. Frye (1998) 18 Cal.4th 894, 967 (Frye).)

The California Supreme Court in Richardson, supra, 43 Cal.4th at page 1024

reaffirmed the slight evidence standard. Neither Richardson nor any other California

Supreme Court case of which we are aware holds that corroboration by slight evidence

reduces the prosecution’s burden of proof. We are bound by the decisions of the

California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d

450, 455.)

Gutierrez also argues CALCRIM No. 335 fails to instruct the jury that accomplice

testimony must connect the defendant to the crime in such a way that the jury is satisfied

the accomplice is telling the truth. Gutierrez forfeited this contention by not objecting in

the trial court and requesting any clarifying or modifying language. (Rundle, supra, 43

Cal.4th at p. 151.)

39.

Additionally, section 1111 does not explicitly contain the requirement that

accomplice testimony must connect the defendant to the crime in such a way that the jury

is satisfied the accomplice is telling the truth. Section 1111 states, in part, “A conviction

can not be had upon the testimony of an accomplice unless it be corroborated by such

other evidence as shall tend to connect the defendant with the commission of the

offense.”

Moreover, the jury was instructed, through CALCRIM No. 226, on the standards

for judging the credibility or believability of a witness and deciding whether to believe

all, part, or none of a witness’s testimony. CALCRIM No. 226 has been found to be a

correct statement of law on assessing credibility of witnesses. (People v. Warner (2008)

166 Cal.App.4th 653, 656-659.) We presume the jury understood and correlated

CALCRIM Nos. 226 and 335. (Coffman and Marlow, supra, 34 Cal.4th at p. 83.)

CALCRIM Nos. 337 and 3550

During closing argument, counsel for Ramos argued that Fuller was a “thief” and

“drug addict liar” who “weaseled his way out of a life sentence” and instead received six

years. At this point, the prosecution objected and asked that the jury not consider

punishment and consequences. The trial court then told the jury “you will be instructed”

that “you’re not to consider any potential consequences.” The trial court went on to say

that the testimony was that when Fuller entered his plea, he was “looking at a life

sentence.” The trial court again stated that “you will be instructed you’re not to consider

consequences, punishment in relative to making your decision.”

Gutierrez and Enriquez, joined by Ramos, contend the trial court erred by so

instructing the jury. They assert these instructions told the jury not to consider potential

or actual penal consequences facing prosecution witnesses when assessing the witness’s

credibility. We disagree.

The jury was instructed pursuant to CALCRIM No. 337 that when Fuller and

Trevino testified, “they were in custody, the fact that a witness is in custody does not by

40.

itself make a witness more or less believable. You are to evaluate the witness’ testimony

according to the instructions I have given you.” The jury also was instructed with

CALCRIM No. 3550, predeliberation instructions, which includes the statement, “You

must reach your verdict without any consideration of punishment.” However, the trial

court also instructed the jury with CALCRIM No. 226, which specifically states that

among the factors for a jury to consider in assessing a witness’s credibility is whether the

witness was promised immunity or leniency in exchange for his or her testimony.

A jury “can consider the differences between the potential penalties faced and the

actual penalties received by accomplices in assessing their credibility.” (People v. Jones

(2003) 30 Cal.4th 1084, 1114.) CALCRIM No. 3550, however, clearly applies to the

jury’s deliberation of the charges against a defendant; the jury does not return a verdict

except as against a defendant. CALCRIM No. 226 clearly instructed the jury it could

consider promises of immunity or leniency in determining whether to believe testimony

from a witness. Furthermore, the comments from the trial court to the jury were that it

would be instructed regarding consideration of punishment and consequences. We

presume the jury understood and correlated CALCRIM Nos. 226 and 3550. (Coffman

and Marlow, supra, 34 Cal.4th at p. 83.)

Although the trial court’s comments were somewhat inarticulate, we do not view

them as erroneously instructing the jury it could not consider potential penal

consequences to Fuller or Trevino in assessing the credibility of these witnesses. The

trial court apparently was trying to inform the jury that it would be instructed it could not

consider potential punishment in reaching a verdict on the guilt of the three defendants.

This was in direct response to Ramos’s counsel pointing out that potentially Fuller, and

therefore defendants, were facing life in prison.

In light of the trial court’s comments to the jury that it would be instructed on this

issue, combined with the instructions given that correctly informed the jury it could

consider immunity or leniency in assessing witness credibility, a reasonable juror would

41.

have understood that he or she was not barred from considering the potential punishment

faced by Fuller or Trevino, and the punishment they actually received, in assessing the

credibility of their testimony. (People v. Jones, supra, 30 Cal.4th at p. 1114.)

Accomplice as a Matter of Law

In the trial court, Gutierrez, joined by Enriquez, requested the trial court instruct

the jury that Schuetze was an accomplice as a matter of law and that her testimony must

be corroborated independently; the prosecution objected. The trial court declined the

request.

On appeal, Enriquez, joined by Ramos, contends the trial court erred by not

instructing the jury that it had to determine if Schuetze was an accomplice, and, if so, that

her testimony must be corroborated. No request was made for such an instruction, but

Enriquez and Ramos argue the trial court had a sua sponte duty to so instruct.

An accomplice is a person “liable to prosecution for the identical offense charged

against the defendant on trial in the cause in which the testimony of the accomplice is

given.” (§ 1111.) The test of whether a witness is an accomplice is a factual, not legal,

question. (People v. Fauber (1992) 2 Cal.4th 792, 834 [whether person is accomplice is

question of fact for jury unless there is no dispute as to either facts or inferences to be

drawn]; People v. Sully (1991) 53 Cal.3d 1195, 1227-1228 [same].) Although the burden

is on the defendant to prove by a preponderance of the evidence that a witness is an

accomplice (People v. Tewksbury (1976) 15 Cal.3d 953, 963), “‘[w]hen there is sufficient

evidence that a witness is an accomplice, the trial court is required on its own motion to

instruct the jury on the principles governing the law of accomplices,’ including the need

for corroboration. [Citation.]” (People v. Tobias (2001) 25 Cal.4th 327, 331.)

There is no evidence in the record from which a jury could have concluded that

Schuetze was an accomplice. There is no evidence Schuetze (1) had any knowledge

defendants were going to shoot Langston, (2) encouraged the shooting of Langston, or

(3) was present at the shooting of Langston. At most, Schuetze was present in the car

42.

when defendants drove to a motel and she knew a shotgun and shells were in the vehicle.

This knowledge, however, was insufficient to elevate her to the level of an accomplice.

(People v. Houston (2012) 54 Cal.4th 1186, 1223.) “‘“An accomplice must have

‘“guilty knowledge and intent with regard to the commission of the crime.”’”’

[Citation.]” (Id. at p. 1224.) As the trial court noted, the evidence was not even

sufficient to consider Schuetze to be an accessory. (Coffman and Marlow, supra, 34

Cal.4th at p. 103.)

VI. Claims of Prosecutorial Misconduct

Enriquez and Gutierrez assert the prosecutor committed misconduct when he

purportedly vouched for witnesses’ credibility. Enriquez also contends the prosecutor

committed misconduct by referring to matters outside the record in remarks about gangs.

Gutierrez argues the prosecutor committed misconduct by misstating the law, the state of

the evidence, and arguing facts not in evidence surrounding Yesenia Ortega’s testimony

and testimony from Fuller. Finally, Gutierrez claims the prosecutor committed

misconduct by misstating the law on accomplice corroboration.

“‘The applicable federal and state standards regarding prosecutorial

misconduct are well established. “‘A prosecutor’s … intemperate behavior

violates the federal Constitution when it comprises a pattern of conduct so

“egregious that it infects the trial with such unfairness as to make the

conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor

that does not render a criminal trial fundamentally unfair is prosecutorial

misconduct under state law only if it involves “‘“the use of deceptive or

reprehensible methods to attempt to persuade either the court or the

jury.”’”’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.)

Prosecutorial misconduct requires reversal only if it prejudices the defendant.

(People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendant’s

constitutional rights, reversal is required, unless the reviewing court determines beyond a

reasonable doubt that the misconduct did not affect the jury’s verdict. (People v.

Harris (1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates only state

43.

law is cause for reversal when it is reasonably probable that a result more favorable to the

defendant would have occurred had the prosecutor refrained from the objectionable

conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)

“‘It is misconduct for prosecutors to bolster their case “by invoking their personal

prestige, reputation, or depth of experience, or the prestige or reputation of their office, in

support of it.” [Citation.]’” (People v. Riggs (2008) 44 Cal.4th 248, 302.) Improper

vouching also includes “‘“an attempt to bolster a witness by reference to facts outside the

record.”’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 206.) It also is

misconduct for a prosecutor to suggest to the jury that he or she possesses information

about the case, other than evidence adduced at trial. The misconduct is in leading the

jury to assess the merits of the case based upon information to which the prosecutor, but

not the jury, is privy. (People v. Earp (1999) 20 Cal.4th 826, 864.)

Vouching

Concerning Schuetze, the prosecutor argued there was no evidence anything about

her testimony “was contrived” and that “at last we arrive at the truth from [her]

testimony.” Regarding Fuller, the prosecutor stated that there was “far too much

corroboration in his story,” his testimony was “very reliable,” and “[h]e signed a

document promising to tell the truth and nobody influenced what he was going to say.”

Defense counsel objected to the remarks by the prosecutor, which the trial court

overruled.

The prosecutor also stated in closing that “[t]he only reasonable explanation

presented by the facts” is that the account of events given by Trevino, Schuetze, and

Fuller “are at long last the truth.” Regarding Officer Nicole Shihrer, the prosecutor

stated, “It’s her job to get this right” and “If your opinion about … police officers in

general is so low as to believe that [she would omit exculpatory evidence], then, we may

as well stop calling cops to the stand.” Defense counsel objected on the basis of

vouching and was overruled.

44.

Finally, the prosecutor argued that the witnesses had no motive to lie because of

the immunity agreement. Defense counsel objected and the trial court overruled the

vouching objection, noting the immunity agreement required each witness to testify

truthfully.

Here, the prosecutor stated that witnesses were telling the truth based upon an

assessment of testimony in the case, the evidence presented, and the terms of the

immunity agreement.

The prosecutor essentially argued that Schuetze and Fuller were finally telling the

truth at trial. Schuetze had lied to law enforcement initially. It was not until later that

Schuetze was forthcoming to law enforcement in an interview and at trial. Fuller also

initially lied about events and his inconsistent statements were before the jury. The

prosecutor arguing that witnesses finally were telling the truth at trial does not constitute

improper vouching for a witness. When a prosecutor states an opinion that a witness is

telling the truth, without implying any knowledge of facts outside the record as the basis

for this opinion, the prosecutor simply is stating an opinion on the basis of evidence

before the jury; this is not misconduct. (People v. Mayfield (1997) 14 Cal.4th 668, 781-

782.)

Regarding Trevino, the prosecutor argued that Trevino was telling the truth from

the inception, with the omission of the information that it was he who had hidden the gun.

Again, as long as the prosecutor’s assurances regarding the honesty or reliability of the

witness are based on the facts of the record, and the inference is reasonably drawn

therefrom rather than from any purported knowledge or belief, the comments cannot be

characterized as improper vouching. (People v. Ward (2005) 36 Cal.4th 186, 215.)

As for the contention regarding the prosecutor’s remarks about the immunity

agreements with Trevino and Fuller, the record discloses that the prosecutor explained

the immunity agreement with Fuller. The prosecutor argued that Fuller agreed to testify

truthfully and no one influenced what he would say. Describing the terms of the

45.

immunity agreement is permissible argument. The prosecutor’s later remarks about

whether Fuller and Trevino had a motive to lie with an immunity agreement in place

were remarks in response to the defense argument that Fuller and Trevino lied during

trial. A prosecutor may make remarks that are responsive to defense argument and based

on the record evidence in rebuttal, even if “perhaps otherwise improper.” (People v. Hill

(1967) 66 Cal.2d 536, 560.)

Even if any of the remarks were arguably improper, they were not prejudicial.

The jury was instructed that nothing the attorneys say in their opening statements and

closing arguments is evidence, and that the jury alone judged the credibility of witnesses.

We presume the jury understood and followed those instructions in the absence of a

showing to the contrary; here, there has been no such showing. (People v. Alfaro (2007)

41 Cal.4th 1277, 1327-1328 (Alfaro).)

Gang Reference

Enriquez contends the prosecutor committed misconduct by referring in closing

argument to matters regarding criminal street gangs that were outside the record. The

contention is not cognizable on appeal.

The comments Enriquez asserts constituted prosecutorial misconduct were made

by the prosecutor in closing, where he stated:

“As I said, in the world of criminal street gang[s], disputes are settled by

violence, even by slight ones. Even by ones that we take for granted every

day, disrespect. But this case is important because it offers the lawful law

abiding community an opportunity to say no.”

At trial, Gutierrez objected to the above remarks; Enriquez did not. Failure to

object and seek a curative admonition forfeits appellate review of any claim of

prosecutorial misconduct. (People v. Foster (2010) 50 Cal.4th 1301, 1354 (Foster).)

Regardless, the prosecutor’s remarks do not rise to the level of misconduct. In

analyzing claims of prosecutorial misconduct, we view the challenged statements in the

context of the argument as a whole (People v. Dennis (1998) 17 Cal.4th 468, 522

46.

(Dennis)), and “we ‘do not lightly infer’ that the jury drew the most damaging rather than

the least damaging meaning from the prosecutor’s statements. [Citation.]” (Frye, supra,

18 Cal.4th at p. 970.) The prosecutor’s remarks reasonably can be viewed as urging the

jury to hold defendants accountable for their criminal conduct -- not for any actions of

gangs in general.

Ortega Testimony

Gutierrez contends the prosecutor committed misconduct by arguing in rebuttal

that Ortega fabricated her testimony that Trevino confessed to being the gunman and

stating there was no evidence “in this record” or “before this jury” identifying Trevino as

the gunman. We reject the claim of prosecutorial misconduct.

Gutierrez did object to the remark on the grounds the prosecutor misstated the

record. The trial court responded, stating, “The jurors know what the evidence is, and

they will know if there’s other evidence or[] not[,] so I will overrule the objection.”

Multiple times in closing argument the prosecutor mentioned Ortega’s testimony

that Trevino told her he was the gunman. The prosecutor repeatedly argued that Ortega

was lying and could not be trusted. In rebuttal, the prosecutor again addressed Ortega’s

testimony that Trevino confessed to being the gunman. Finally, in his last comment on

the matter, the prosecutor made the challenged remark.

Viewed in context, the remark could not reasonably be construed as the prosecutor

misstating the record. There were too many instances when the prosecutor specifically

referenced Ortega’s testimony regarding Trevino. Rather, the reasonable interpretation of

the remark is that the prosecutor was arguing there was no evidence before the jury

because Ortega’s testimony was not credible evidence that was worthy of the jury’s

consideration. Because we conclude there was no prosecutorial misconduct in making

the remark, we summarily reject Gutierrez’s claim of a violation of due process.

We also reject Gutierrez’s contention that the manner in which the trial court

overruled his defense counsel’s objection was a “scolding” and biased the jury against

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him. In People v. Hill, supra, 17 Cal.4th 800, upon which Gutierrez relies, the prosecutor

committed misconduct on numerous occasions, the trial court repeatedly overruled the

defense objections to the misconduct, and eventually the trial court chastised defense

counsel for making the objections. (Id. at pp. 823-839.) That is not the case here. There

were not repeated instances of misconduct by the prosecutor where objections by defense

were overruled. For the trial court on one occasion to ask defense counsel to state the

basis for an objection, without arguing the evidence, simply does not rise to the level of a

“scolding” as Gutierrez claims and would not have biased the jury.

Fuller’s Testimony

Gutierrez argues the prosecutor committed misconduct by stating that Ramos had

learned inside information from Enriquez, who in turn communicated it to Ortega, when

the two defendants were able to communicate on a bus ride to jail. Gutierrez contends

this was misconduct because that information was testified to by Fuller at an Evidence

Code section 402 hearing, but not during the trial.

Gutierrez failed to object to this remark, although counsel for a codefendant did.

Failure to object and seek a curative admonition forfeits appellate review of any claim of

prosecutorial misconduct. (Foster, supra, 50 Cal.4th at p. 1354.) Gutierrez has forfeited

any claim of prosecutorial misconduct in this instance.

The case of People v. Lopez (2013) 56 Cal.4th 1028 cited by Gutierrez does not

warrant a different conclusion. In Lopez, the prosecutor made the same disparaging

remark about both defense counsel jointly; one defense attorney interposed an objection,

which was sustained. On appeal, the California Supreme Court determined that an

objection from the second defense counsel was not necessary in order to preserve the

claim of prosecutorial misconduct for appeal by both defendants because the remark had

been made about both defense counsel. (Id. at p. 1073.)

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Here, the alleged prosecutorial misconduct related to Ramos and Enriquez, not

Gutierrez. In order to preserve a claim of prosecutorial misconduct for appeal, Gutierrez

should have objected to the remark during trial.

Accomplice Corroboration Remark

Gutierrez argues the prosecutor committed misconduct by stating in rebuttal

argument that one accomplice can corroborate the testimony of another accomplice,

which he contends is a misstatement of the law. Gutierrez misconstrues the remark.

The prosecutor stated, “While you need independent corroboration to be legally

sufficient, the corroboration between two accomplices as long as there is the independent

corroboration, it is certainly something you can take into consideration and it’s certainly

something you can factor in.” The prosecutor also remarked that with respect to

prosecution witnesses, “But their stories match up and corroborate each other.” Other

similar comments to these two were made by the prosecutor.

Section 1111 requires corroboration of accomplice testimony. It provides, in

pertinent part, “A conviction can not be had upon the testimony of an accomplice unless

it be corroborated by such other evidence as shall tend to connect the defendant with the

commission of the offense; and the corroboration is not sufficient if it merely shows the

commission of the offense or the circumstances thereof.” “‘The evidence required for

corroboration of an accomplice “need not corroborate the accomplice as to every fact to

which he testifies but is sufficient if it does not require interpretation and direction from

the testimony of the accomplice yet tends to connect the defendant with the commission

of the offense in such a way as reasonably may satisfy a jury that the accomplice is

telling the truth; it must tend to implicate the defendant and therefore must relate to some

act or fact which is an element of the crime but it is not necessary that the corroborative

evidence be sufficient in itself to establish every element of the offense charged.”

[Citations.] Moreover, evidence of corroboration is sufficient if it connects defendant

with the crime, although such evidence “is slight and entitled, when standing by itself, to

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but little consideration.” [Citations.]’ [Citations.]” (People v. Garrison (1989) 47

Cal.3d 746, 773.)

It is true that “In order to corroborate the testimony of an accomplice the

prosecution must introduce independent evidence which of itself connects the defendant

with the crime without any aid from the testimony of an accomplice.” (People v. Luker

(1965) 63 Cal.2d 464, 469.) Such evidence may not come from the testimony of other

accomplices. (People v. Davis (2005) 36 Cal.4th 510, 543.)

We do not interpret the prosecutor’s remarks as Gutierrez would suggest. The

prosecutor clearly stated and acknowledged that accomplice testimony must have

independent corroboration. To state that as long as there was independent corroboration,

the jury could “factor in” that the accomplices’ testimony was consistent is not a

misstatement of law on corroboration of accomplice testimony. We see nothing in the

prosecutor’s remarks that would have allowed the jury, as Gutierrez claims, to use an

“amalgam” of independent evidence and other accomplice testimony as corroboration for

an accomplice’s testimony.

Moreover, the jury was specifically instructed that “The evidence needed to

support the statements or testimony of one accomplice cannot be provided by the

statements or testimony of another accomplice.” Absent evidence to the contrary, and

none has been cited by Gutierrez, we presume the jury followed this instruction. (Alfaro,

supra, 41 Cal.4th at pp. 1327-1328.)

VII. Ineffective Assistance of Counsel

Gutierrez contends his defense counsel rendered ineffective assistance when

counsel failed to object to certain portions of Schuetze’s testimony.

The familiar standard for review of claims of effective assistance of counsel is

that the defendant must show (1) trial counsel failed to act in a manner to be expected of

reasonably competent attorneys, and (2) a more favorable result would have been

obtained absent counsel’s failings. (People v. Lewis (1990) 50 Cal.3d 262, 288.) “If the

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record on appeal fails to show why counsel acted or failed to act in the instance asserted

to be ineffective, unless counsel was asked for an explanation and failed to provide one,

or unless there simply could be no satisfactory explanation, the claim must be rejected on

appeal. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

During the direct examination of Schuetze, she testified to seeing Gutierrez get

into the SUV and leave. During cross-examination by Ramos’s counsel, Schuetze

testified she was looking out a window and saw the SUV leave. When Enriquez’s

counsel cross-examined Schuetze, Schuetze testified that she saw the SUV leave, but

“didn’t pay attention to who got in and out.” Schuetze also acknowledged that she did

not see who got into the SUV, but “put two and two together.” On redirect, Schuetze

acknowledged initially telling police she saw who got into the SUV and that now her

testimony was that she did not actually see who got into the SUV, but she assumed

Gutierrez and Enriquez were in the SUV because she did not see them after the SUV left.

Gutierrez contends defense counsel was ineffective because he failed to object—

on the grounds it assumed facts not in evidence—to Schuetze’s testimony that she saw

Gutierrez leave the motel in the SUV. Gutierrez also contends defense counsel was

ineffective for failing to move to strike for lack of foundation this same testimony when it

was revealed that Schuetze was basing her testimony on an assumption.

As was revealed during questioning of Schuetze on redirect, prior to the trial she

had told law enforcement that she saw who got into the SUV. When Schuetze testified

initially on direct examination, her testimony was consistent with her pretrial statement to

law enforcement. Schuetze’s pretrial comments would have been available to the defense

and certainly precluded any objection, at that time, on the basis of assuming facts not in

evidence.

Concerning defense counsel’s failure to object to certain of Schuetze’s testimony,

“[f]ailure to object rarely constitutes constitutionally ineffective legal representation.”

(People v. Boyette (2002) 29 Cal.4th 381, 424.) The decision whether to object is

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inherently tactical, and the failure to object rarely will establish ineffective assistance.

(People v. Hillhouse (2002) 27 Cal.4th 469, 502.) Here, at the time Schuetze initially

testified, there was no basis for an objection on the grounds suggested by Gutierrez.

When it became clear under cross-examination that Schuetze had assumed

Gutierrez and others left in the SUV because they were no longer at the motel after the

SUV left the parking lot, Gutierrez contends defense counsel should have moved to strike

Schuetze’s earlier testimony on the grounds of a lack of personal knowledge. Again,

considering that cross-examination and redirect thoroughly fleshed out exactly what

Schuetze observed, as opposed to the conclusions she drew, defense counsel reasonably

could decide tactically not to pursue the matter further.

With regard to the question of whether counsel’s performance was objectively

unreasonable, “‘“Reviewing courts defer to counsel’s reasonable tactical decisions … and

there is a ‘strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.’” [Citations.] “[W]e accord great deference to

counsel’s tactical decisions” [citation], and … “courts should not second-guess

reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation].’”

(People v. Jones (2003) 29 Cal.4th 1229, 1254; accord, People v. Weaver (2001) 26

Cal.4th 876, 928 [“‘even “debatable trial tactics” do not “constitute a deprivation of the

effective assistance of counsel”’”].) And, “[i]n order to prevail on [an ineffective

assistance of counsel] claim on direct appeal, the record must affirmatively disclose the

lack of a rational tactical purpose for the challenged act or omission. [Citations.]”

(People v. Ray (1996) 13 Cal.4th 313, 349.) “‘In the usual case, where counsel’s trial

tactics or strategic reasons for challenged decisions do not appear on the record, we will

not find ineffective assistance of counsel on appeal unless there could be no conceivable

reason for counsel’s acts or omissions.’” (Jones, at p. 1254.)

On the record before us, we conclude there was no ineffective assistance of

counsel.

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VIII. Gang Registration Requirement

Ramos contends the gang registration requirement set forth in the abstract of

judgment should be reversed because it was not orally imposed at sentencing. He is

mistaken.

The abstract of judgment must reflect the court’s oral pronouncement of judgment.

(People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) “The clerk cannot supplement the

judgment the court actually pronounced by adding a provision to the minute order and the

abstract of judgment. [Citation.]” (People v. Zackery (2007) 147 Cal.App.4th 380, 387-

388.)

The gang registration requirement is set forth in section 186.30 and requires that

any person convicted of a gang offense or gang enhancement set forth in section 186.22,

subdivisions (a) and (b), respectively, must register with law enforcement. At sentencing,

the trial court stated, “I will further order that [Ramos] register under the provision of

Section 186.30.”

The abstract of judgment conforms to the oral pronouncement of judgment, which

included the gang registration requirement.

DISPOSITION

The judgments are affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

HILL, P.J.

_____________________

GOMES, J.

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