THE PEOPLE v. JOSE LUIS GUZMAN

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS GUZMAN, Defendant and Appellant.

F055497

Decided: January 27, 2010

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

A jury found defendant Jose Luis Guzman guilty of attempted second degree murder (Pen.Code, §§ 664, 187, subd. (a);  count 1) 1 and assault with a semiautomatic firearm (§ 245, subd. (b);  count 2).   As to both counts, the jury found the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)).  As to count 1, the jury found defendant personally and intentionally discharged a firearm, which proximately caused great bodily injury to the victim (§ 12022.53, subd. (d)).  As to count 2, the jury found defendant personally used a handgun (§ 12022.5, subd. (a)(1)).   The trial court sentenced defendant to a total prison term of 42 years to life.   On appeal, defendant contends:  (1) the trial court erred in denying his pretrial motion to bifurcate the trial of the gang enhancements from the trial of the charged offenses;  (2) insufficient evidence supports the gang enhancements;  (3) the prosecutor committed prejudicial misconduct during closing argument;  and (4) cumulative error requires reversal of his convictions.   We affirm.

On August 20, 2006, around 2:00 a.m., a group of friends, including the victim, Daniel Doughty, were partying in the garage at Irene Gaonas house.   Doughty testified that someone asked him to pick up defendant.   Doughty drove to a house in the Chankla neighborhood of Sanger and picked up defendant and defendants friends, Gilbert and Michael Galvan, and brought them back to the party.   Defendant and the Galvan brothers all were validated members of the Chankla Bulldogs gang.

Doughty noticed defendant had tattoos on his face and the Galvan brothers were dressed in red, colors Doughty associated with their gang membership.   Doughty had met defendant before and knew him as Sotaco.   Defendant was friendly towards Doughty and asked if Doughty could get him a job in construction.

Gaona was unhappy when this group arrived at her house.   She had not invited defendant or the Galvan brothers over, and she particularly did not want Gilbert and Michael at her house because they did not blend into her crowd.   She thought they looked suspicious and were scaring people.   They were wearing red rags over their faces and she told them to take them off.   Gaona also asked her boyfriend to keep an eye on defendant and his friends.

Defendant and the Galvan brothers left the party and came back one or two times.   Doughty testified that he never thought about leaving the party with defendant or his friends.   Gaona, however, recalled that Doughty was planning to leave with them until she and a friend discouraged him.   When Doughty told her everything would be fine, Gaona responded:  Its not.   You dont know these people.   Doughty told her he had a knife, but Gaona pointed out this would not help because he would be outnumbered.2

When defendant returned to the party for the final time, he was seen talking with Doughty.   There was conflicting testimony as to whether defendant or Doughty initiated the conversation and whether there were signs of tension between the two.   But it was undisputed that defendant and Doughty eventually went outside together into the small backyard adjacent to the garage and closed the door behind them.

Other than defendant and Doughty, there were no direct witnesses to the shooting which transpired next.   According to Doughtys testimony, he went outside with defendant because defendant wanted to talk to him.   Doughty knew defendant had a nine-millimeter Beretta or Glock handgun because he had seen defendant with it earlier in the evening.   Defendant had waved it around and then put it in his back waistband.

Once they were outside, defendant said that he wanted to leave and that he wanted Doughty to come with him.   Doughty asked what was wrong and suggested they go back inside and have a beer.   Defendant then whispered, Give me $20.   Doughty replied he did not have $20 for defendant.   Defendant responded to this by telling Doughty to give him $100.

Doughty tried to walk back inside the garage, but defendant tugged the back of his shirt and said, Come, here.   Doughty turned to look and saw defendant motioning towards his back waistband.   Doughty then tried to talk and reason with defendant.   They were standing approximately three to four feet apart, when Doughty saw defendants gun and defendant said he would shoot Doughty if he did not give him his money.   After having his memory refreshed by the preliminary hearing transcript, Doughty recalled that defendant also said, You know, I feel youre disrespecting me.

Defendant fired his gun at Doughty.   One bullet struck Doughtys left arm and shattered his humerus.   Another bullet grazed his ribs and left a burn.   Defendant then shot Doughty five more times in the back.   Defendant ran away, leaving Doughty on the ground.   Doughty was unable to move his legs and could not move his left arm very much.

There was no evidence defendant took anything from Doughtys possession after the shooting.   Hospital records reflected that Doughty had $132 in cash on him when he was transported to the hospital.

Dr. John Bilello, a trauma surgeon at Community Regional Medical Center in Fresno, treated Doughty after the shooting Doughty's records showed that he had been shot in the left torso and in the left arm.   There was one gunshot wound to his left upper arm, and five gunshot wounds to his upper and lower shoulder blade, forming a crescent-like pattern.   The shooting damaged Doughty's spine and rendered him paraplegic.

There were various witness accounts of events occurring around the time of the shooting.   Christine Castro testified that defendant and Doughty were in the backyard together for approximately 15 minutes.   Towards the end of this time, she saw Gilbert Galvan standing in front of the garage, asking for Sotaco.   Somebody told him defendant was still in the back talking.   Gilbert stayed in front of the garage and said, The rides leaving.   Gaonas boyfriend, Nathan Venegas, went to tell defendant his ride was leaving.   A minute or two later, Castro heard gunshots and then saw defendant walk into the garage from the backyard.

Venegas told police that he saw defendant walk to the backyard area with Doughty, and that they were out there for quite a bit of time.   Gaona asked him to go check on them.   Venegas walked into the backyard and saw defendant and Doughty talking.   He asked them if everything was okay.   They both told him yes, and that everything was fine.   Venegas then walked back into the garage.   As he walked towards the front of the garage, he heard two gunshots, followed by five or six more gunshots.   Following the gunshots, defendant ran back into the garage.   The front garage door was not closed all the way.   Defendant ran to the door and pushed it up.   He then got into an SUV that was parked in front of the house and drove off.

Gilbert Galvan testified that although he and his brother Michael went to a party at Gaonas house on August 20, 2006, he was unable to remember any of the details of what happened because he was “on drugs bad at that time.”   Gilbert explained he had a problem with methamphetamine and had “just barely been clean” at the time of defendant's trial.

The day of the shooting, Gilbert was interviewed by sheriffs detectives.   One of the detectives present was the prosecutions gang expert, Detective Jason Hollins.   Hollins presence during the interview was specifically requested by Gilbert, who knew the detective from other investigations and felt comfortable with him.   A redacted recording of the interview was played to the jury.

In the interview, Gilbert gave detectives a fairly detailed account of events.   Gilbert said he, his brother, and defendant went to Gaonas house around 2:00 or 3:00 a.m., and that Doughty drove them there.   They left the party after 20 minutes because it did not seem like the owner wanted them there.

After they left the party, they went to smoke dope.   They then returned to the party because defendant wanted to go back.   There were a lot of people partying in the garage.   Gilbert played pool for awhile, but then he started to feel sick.   He told his brother, and they called someone named Felipe to give them a ride.   Felipe drove a Jeep Cherokee.

Gilbert and his brother were out in front of the garage waiting for their ride, when Gilbert heard six or seven gunshots.   Defendant ran out of the garage and jumped into the Jeep. Defendant had blood on him.   Gilbert asked what happened.   Defendant said, That guy tried to stab me!   When Gilbert asked what defendant did, defendant replied, I just shot the fool!   Later in the interview, Gilbert said defendant told him he first tried to jack [him].   Gilbert took this to mean that defendant tried to rob Doughty for dope.

After they drove away from Gaonas house, Gilbert and his brother got out at a 7-Eleven store on the corner.   Gilbert told detectives he did not want to be any part of what defendant did and that he had just met the victim.

When asked if defendant was carrying a weapon, Gilbert said he was carrying a nine.   Detective Jeffrey Kertson, one of Gilberts interviewers, testified he understood this to refer to a nine-millimeter semiautomatic handgun.   Detective Kertson further testified that nine-millimeter shell casings were found at the crime scene.

Detective Hollins qualified as a gang expert.   According to Detective Hollins testimony, there were approximately 130 to 140 active members of the Chankla Bulldogs gang in Sanger.   The primary activities of the gang included, [e]verything from robberies, strong arm robberies to drive-by shootings to attempt homicides to homicides.   Presented with two sets of hypotheticalsone based on the theory that the circumstances showed defendant and the Galvan brothers acted together and one based on the theory that defendant acted aloneDetective Hollins opined that, in either case, the shooting of Doughty was gang related.

The Defense

Defendant testified that he had met Doughty a couple times before the night in question.   Sometime after midnight, Doughty and a few girls picked up defendant and the Galvan brothers and took them to the party at Gaonas house.   Defendant socialized for awhile and then left the party because he wanted to go smoke some dope.

Defendant returned to the party about an hour later.   He talked to Doughty about a job they had discussed a couple days earlier.   Defendant then started socializing again and played pool.

The Galvan brothers wanted to leave the party.   They were saying goodbye to everyone, when Doughty came over, tapped defendant and said, Come over here.   I want to talk to you.

Defendant went into the little backyard with Doughty and asked him what was up.   Doughty asked defendant if he could give him some more dope.   Defendant told Doughty he did not have any more dope, but Doughty kept bugging him.

When defendant told Doughty he was about to leave, Doughty reached with his right hand for a knife in his pocket and tried to grab defendant with his left hand.   Defendant pulled back and grabbed his gun.   He was going to point the gun at Doughty to make him back up, but Doughty grabbed the gun and they started wrestling over it.

While they were wrestling, the gun went off.   Blood splashed in defendants face and then he blacked out.   The next thing defendant remembered was seeing Doughty on the floor.   Defendant denied that he tried to rob Doughty, or that he intentionally pointed his gun at Doughty and pulled the trigger.   Nor was it something he had planned with the Galvan brothers.

Defendant confirmed he was a member of the Chankla Bulldogs gang and testified that he became a member around 1999, when he was 13 or 14 years old.   Defendant, however, denied the shooting was gang related.   He also disagreed that it would further his credibility in the gang to assault or injure somebody that was not a gang member.   Rather, defendant testified, this would be kind of stupid.

On cross-examination, defendant explained he had the nine-millimeter semiautomatic gun on him for protection from Southerners.   He had to carry his gun around for protection because his tattoos made him a target.

Defendant admitted that about a week prior to the shooting, he fronted Doughty with an eight ball of dope, which is worth about $100.   The party was the first time defendant had seen Doughty since fronting him the dope.   Defendant was not concerned about Doughty paying him because he knew Doughty had a job.   Defendant denied that he would go after Doughty if Doughty ripped him off;  defendant simply wouldnt mess with him no more cuz hes bad business.

DISCUSSION

I. Motion to Bifurcate

Defendant contends the trial court abused its discretion in denying his pretrial motion to bifurcate the trial of the gang enhancements from the trial of the charged offenses for two reasons.   First, defendant claims the evidence before the court at the time it ruled on the motioni.e., the preliminary hearing evidencedid not support a finding that his crimes were gang related.   Therefore, he contends, the court should have granted his motion to bifurcate to prevent the jury from being exposed to irrelevant and highly prejudicial gang evidence during the trial of the charged offenses.   Second, defendant claims the trial court abdicated its responsibility to exercise its discretion in deciding his motion to bifurcate by relying on the findings of the preliminary hearing judge regarding the sufficiency of the gang evidence and failing to conduct an independent review of the preliminary hearing transcript.   We reject both claims of error.

We review the denial of a motion to bifurcate the trial of a gang enhancement from the trial of the associated offense for abuse of discretion.  (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez ).)  Hernandez held the legal basis for bifurcation of a prior conviction allegation also permits bifurcation of a gang allegation.  (Id. at p. 1049.)   However, “the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense.   So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.”  (Id. at p. 1048.)

Hernandez noted gang evidence may be relevant to “identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.”  (Hernandez, supra, 33 Cal.4th at p. 1049.)  “To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.”  (Id. at pp. 1049-1050.)   However, “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itselffor example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged a court may still deny bifurcation.”   (Id. at p. 1050.)

Noting the benefits of unitary trials, Hernandez explained a “trial court's discretion to deny bifurcation of a charged gang enhancement is ․ broader than its discretion to admit gang evidence when the gang enhancement is not charged.”  (Hernandez, supra, 33 Cal.4th at p. 1050.)   Bifurcation is required only where a defendant can “ ‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’  [Citation.]”  (Id. at p. 1051.)

Application of Hernandez to this case reveals no abuse of discretion in the denial of the motion to bifurcate.   Contrary to defendant's assertion, much of the gang evidence would have been admissible on the issues of motive and intent in separate trials (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)   At the preliminary hearing, Doughty testified that after demanding money, defendant pointed his gun at him and said “something like ․ he feels that I'm disrespecting him for not giving him the money.”  (Italics added.)   Detective Hollins testified that defendant was a validated member of the Chankla Bulldogs gang, and that the violent shooting in this case would serve to benefit the gang by enhancing both the reputation of the gang and defendant's status within the gang.   Detective Hollins explained, among other things, that “respect and reputation” are “power” and “paramount” to the “the growth of the gang, especially ․ a group as small as the Chankla[.]”  (Italics added.)   Detective Hollins further testified that defendant did “not need to wear any colors” or do anything else to advertise his gang membership because the tattoos on his face made it “very clear what he represents.”

Because some evidence would have been admitted at a separate trial of the underlying offenses, any prejudice is dispelled.  (Hernandez, supra, 33 Cal.4th at p. 1050.)   In addition, the trial court gave the jury a cautionary instruction regarding the permissible use of gang evidence.3  We presume the jury followed this instruction.  (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

We also reject defendant's second contention, which is based on his interpretation of comments made by the trial court when ruling on his motion to bifurcate.4  On the record before us, we are not prepared to conclude the trial court failed to review the preliminary hearing transcript or consider factors relevant to defendant's motion to bifurcate.   We will not presume error;  instead, it must be affirmatively shown.  (People v. Carpenter (1999) 21 Cal.4th 1016, 1046;  People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7;  Denham v. Superior Court (1970) 2 Cal.3d 557, 564;  Boquilon v. Beckwith (1996) 49 Cal.App.4th 1697, 1719, fn. 23;  People v. Connolly (1951) 103 Cal.App.2d 245, 248.)   Any uncertainty in the record is resolved against the party asserting error.  (People v. Green (1979) 95 Cal.App.3d 991, 1001.)   We presume official duty has been regularly performed (Evid.Code, § 664);  where a trial court has a duty to perform a particular act, we will not assume, based on silence, that it did not do so (see, e.g., People v. Cruz (1960) 178 Cal.App.2d 83, 87 [trial court's failure specifically to mention particular ground for new trial motion];  People v. Heath (1955) 131 Cal.App.2d 172, 173-174 [trial court's failure to state it had read preliminary hearing transcript where case submitted thereon].).

The trial court's comments do not affirmatively demonstrate a failure by the court to review the preliminary hearing transcript but are silent on this point.   The fact the court mentioned the holding orders from the preliminary hearing does not necessarily mean it did not read the preliminary hearing transcript, as defendant suggests in his reply brief.   It is conceivable the trial court read the transcript, which we note is fairly short, and agreed with the findings of the preliminary hearing judge, and this is why the trial court decided to “essentially rely upon” that judge's factual findings in concluding that the “the gang allegations are inextricably interwoven into the substantive crimes alleged.”   Moreover, the trial court's choice of language suggests awareness of the applicable legal principles.  (See Hernandez, supra, 33 Cal.4th at p. 1048 [the gang enhancement by definition is “inextricably intertwined” with the charged offense].)   Because the record is silent as to whether the trial court reviewed the preliminary hearing transcript, we must reject defendant's claim that the court failed to exercise its discretion under the rules of the presumption of regularity of judicial exercises of discretion.

II. Sufficiency of the Evidence of the Gang Enhancements

Next, defendant contends there was insufficient evidence to support the gang enhancements.   His argument is similar to the one just discussed concerning the trial court's denial of his motion to bifurcate the trial of the gang enhancements from the trial of the underlying offenses.   Specifically, defendant argues the evidence was insufficient to show his crimes were committed to benefit his gang or were otherwise gang-related.   We disagree.

The substantial evidence standard of review applies to the section 186.22 gang enhancement.  (People v. Maury (2003) 30 Cal.4th 342, 396;  People v. Augborne (2002) 104 Cal.App.4th 362, 371.)  “Our review of the sufficiency of the evidence is deferential.   We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citations.]  We focus on the whole record, not isolated bits of evidence.  [Citation.]  We presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the verdict.  [Citation.]  If the verdict is supported by substantial evidence, we accord due deference to the verdict and will not substitute our evaluations of the witnesses' credibility for that of the trier of fact.  [Citation.]”  (People v. Killebrew (2002) 103 Cal.App.4th 644, 660;  In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).)   We apply the same standard to convictions based largely on circumstantial evidence.  (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)   Thus, substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows.   (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

To establish the gang enhancement, the prosecution had to prove that the crime was (1) “for the benefit of, at the direction of, or in association with” a criminal street gang, and (2) that the defendant had “the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) 5  These elements essentially require that both the crime and the defendant's specific intent be “gang related.”  (Gardeley, supra, 14 Cal.4th at pp. 619, 621-622, 625, fn. 12.)   A defendant's mere membership in the gang does not suffice to establish the gang enhancement.   (Id. at pp. 623-624;  Frank S., supra, 141 Cal.App.4th at p. 1199.)   Rather, “ ‘[t]he crime itself must have some connection with the activities of a gang.’ ”  (Frank S., supra, at p. 1199.)

We find the circumstances surrounding the shooting, combined with the gang expert's testimony, provided substantial evidence of a gang motive for defendant's crimes and sufficient support for the conclusion the crimes were committed for the benefit of the gang and with the requisite intent.   A reasonable jury could have inferred that defendant felt, as a member of a gang, he had been disrespected and the purpose of the shooting was to redress the show of disrespect, and to demonstrate his willingness to commit a violent shooting to enhance his status within his gang and promote his gang's reputation in the community.   According to Doughty's testimony, the shooting started with an attempted robbery;  robbery being, according to Detective Hollins, one of the primary activities of the Chankla Bulldogs gang.   When Doughty tried to talk and reason with defendant instead of giving him his money, defendant said he thought Doughty was disrespecting him and then shot him.   Detective Hollins testified that the violent shooting would enhance defendant's reputation as a gang member by showing others he was “absolutely down for the cause and willing to take care of business.   Moreover, the fact the victim was basically a civilian would earn defendant a lot more street credit.

Defendants suggestion that the shooting stemmed from a purely personal attempt to rob Doughty is belied by the circumstances that he shot Doughty in the torso multiple times from close range before fleeing without taking any of Doughtys money.   If defendants intent was simply to rob Doughty, he could have fired at a less vulnerable part of Doughtys body or stopped after the victim was clearly incapacitated.   The brutality of the shooting and the fact defendant did not actually rob the victim was consistent with the gang experts opinion and supports a conclusion defendant intended by the violent shooting to enhance his status in the gang.

Defendant makes much of the fact that he carried out the shooting by himself without the direct help of the Galvan brothers, who were also members of his gang.   Defendant, however, overlooks Doughty's testimony that before demanding money, defendant said he wanted Doughty to leave with him.   As there was evidence that Gilbert and Michael were waiting out front for defendant with the SUV, there is support for the view that defendant was trying to lure Doughty away from the party so he could rob him somewhere else in the presence of one or more members of his gang.   Defendant also claims the incident had no hallmarks of a gang-related shooting.   But, as discussed above, Detective Hollins' testimony supported the conclusion that defendant's prominent facial tattoos were sufficient announcement of his gang membership.   Only the most hardcore of gang members will tattoo their faces, which is about one percent of gang members.   Also, there was evidence that defendant told Gilbert immediately after the shooting that he shot Doughty after he first tried to “jack” him.   Detective Hollins testified “the term or the usage of ‘jacking a victim’ is very common ․ with the gangster terminology” This evidence shows defendant took credit for the crime in front of another member of his gang, further evidence of a respect or reputation motive for the shooting.   As Detective Hollins explained:  “You have somebody that's willing to go out there and do things against the general ․ public․  In a community as small as, you know, somewhere like Sanger, that hits the streets like wildfire and their stock just went up.”

While we agree with defendant that not all crimes committed by gang members are to benefit the gang, the case of People v. Albarran (2007) 149 Cal.App.4th 214 is distinguishable and does not assist defendant.   In Albarran, a shooting occurred at a birthday party held for the cousin of a Pierce Boys Gang member, but the gang officer testified that the Pierce Boys Gang had no known or relevant gang rivalries, and he knew of no reason for the shooting.   Additionally, there was nothing inherent in the facts of the shooting to suggest any specific gang motive.  (Id. at p. 227.)   The court found “insufficient evidence to support the contention that [the]shooting was done with the intent to gain respect.”  (Ibid.) Here, in contrast, there was evidence that immediately before the shooting, defendant explicitly expressed the belief the victim had disrespected him.

Nor is this case like our recent decision in People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon ), on which defendant relies heavily in his reply brief.   There, Ramon was arrested for driving a stolen vehicle and various offenses related to possession of a firearm.   The People presented the testimony of a law enforcement officer as an expert on criminal street gangs.   The expert testified that Ramon was a member of a criminal street gang, and he was in territory claimed by the gang at the time he was stopped and arrested.   The officer opined that possession of a stolen vehicle and possession of a firearm benefited the criminal street gang because they could be used to commit crimes that benefited the gang, and the crimes were committed with the specific intent to promote the criminal street gang.   We concluded that the officer's testimony was not supported by substantial evidence.

“The People's expert simply informed the jury of how he felt the case should be resolved.   This was an improper opinion and could not provide substantial evidence to support the jury's finding.   There were no facts from which the expert could discern whether Ramon [was] acting on [his] own behalf the night they were arrested or were acting on behalf of the [gang].   While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation.   Speculation is not substantial evidence.   [Citation.]  ‘ “To be sufficient, evidence must of course be substantial.   It is such only if it ‘ “reasonably inspires confidence and is of ‘solid value.’ ” '   By definition, ‘substantial evidence’ requires evidence and not mere speculation.   In any given case, one ‘may speculate about any number of scenarios that may have occurred․  A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work․  A finding of fact must be an inference drawn from evidence rather than ․ a mere speculation as to probabilities without evidence.’ ” '  [Citation.]”  (Ramon, supra, 175 Cal.App.4th at p. 851.)

The complete lack of any evidence that Ramon was acting on behalf of the criminal street gang to which he belonged compelled our conclusion that the expert had no basis for testifying that the crime benefited the gang or was committed with the specific intent to promote the gang.   Here, on the other hand, there was substantial evidence supporting Detective Hollins' opinion that defendant's crimes were committed to benefit his gang with the requisite intent.   Accordingly, we reject defendant's contention that there was insufficient evidence to support the gang enhancements.

III. Prosecutorial Misconduct

Defendant claims the prosecutor committed prejudicial misconduct during closing argument by stating:

“I think you know that as you sit here today.   You saw him [Doughty] testify from a wheelchair.   He's not going to walk again.   Absent some medical miracle, some type of stem cell medical breakthrough, he's going to be in that wheelchair for the rest of his life.   That is, obviously, a significant and substantial injury.”

Defense counsel raised no objection but responded in his argument by stating:

“Finally, we're getting to the end of this.   And I just want to say a couple of things that really don't have anything to do with the case other than, you know, nobody deserves to be in a wheelchair for what happens and I'm not trying to make light of that.   I'm not going to make light of that.   He is injured and seriously injured.   It could possibly be a permanent injury.   He did say he was getting a little more feeling and he could move his hips and they are making some leg braces for him and that happens, okay, but there's two families involved in this also.  [Defendant's] family is involved in this, so there's two losses in this.”

Defendant now contends the prosecutor committed misconduct by arguing facts not in evidence in order to appeal to the jury's sympathy for Doughty.  (See People v. Stansbury (1993) 4 Cal.4th 1017, 1057 [“an appeal for sympathy for the victim is out of place during an objective determination of guilt”], reversed on other grounds sub nom.  Stansbury v. California (1994) 511 U.S. 318.)   Defendant asserts that Dr. Bilello, the trauma surgeon who treated Doughty after the shooting and reviewed his medical chart before trial, was unable to predict whether Doughty's paralysis would be permanent.   Thus, defendant contends, there was no factual support for the prosecutor's statement that Doughty was going to be in a wheelchair for the rest of his life and its only purpose was to appeal to the jury's sympathy for the victim.

“We review claims of prosecutorial misconduct pursuant to a settled standard.  ‘Under California law, a prosecutor commits reversible misconduct if he or she makes use of “deceptive or reprehensible methods” when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.  [Citation.]  Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rightssuch as a comment upon the defendant's invocation of the right to remain silentbut is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” '   [Citations.]  In addition, ‘ “a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.  [Citation.]” ’  [Citation.]   Objection may be excused if it would have been futile or an admonition would not have cured the harm.  [Citation.]”  (People v. Dykes (2009) 46 Cal.4th 731, 760 (Dykes ).)

Initially, we agree with respondent that defendant's claims are forfeited by his failure to raise an objection at trial.  (Dykes, supra, 46 Cal.4th at p. 761.)   However, even if defendant had sufficiently preserved his claims for appeal, we would reject them on the merits.   Because there was evidence supporting the view that Doughty's paralysis was likely to be permanent, the prosecutor's statement was a fair comment on the evidence and did not reach the level of misconduct.

When the prosecutor asked Dr. Bilello during direct examination whether Doughty's injury appeared to be permanent, the doctor responded in general terms, answering “usually it is” but then added “sometimes people get sensation, sometimes they get some function back.”  (Italics added.)   The doctor further added:  “You'd have to see how the patient is today.”   In response to the question whether he thought he would be able to walk again, Doughty testified to the effect that he tried not to think about it too much or to be either too optimistic or too pessimistic about his prognosis.   He described how he had regained some ability to move his hips and thighs and how special leg braces had been made “that lock at the knees and Im able to like kind of like swing my legs up front, but thats about it.

As can be seen, the prosecutors comments (and defense counsels response) in closing argument were directed at the evidence and did not constitute an improper appeal to the jurys sympathy.   When viewed in context of the prosecutors overall argument, it appears the prosecutor was attempting to assist the jury in applying the standard for determining whether Doughty sustained great bodily injury, a consideration relevant to the great bodily injury enhancements associated with both counts.   In this regard, defendant overlooks the fact that in conjunction with the comments he challenges on appeal, the prosecutor told the jury that “the focus of great bodily injury is significant and substantial injury.”   Undoubtedly, paralysis is a significant and substantial injury, and it was not misconduct to so argue.   The prosecutor also acknowledged Dr. Bilellos inability to provide medical absolutes regarding Doughtys condition and thus did not misrepresent his testimony, as defendant suggests, but properly went on to invite the jury to draw its own inferences from Doughtys appearance at trial, which showed he was still unable to walk and confined to a wheelchair two years after Dr. Bilello originally treated him in the hospital.   On this record, we find the prosecutor's comments did not violate any of defendant's constitutional rights or constitute an improper attempt to appeal to the jurys sympathy by arguing facts not in evidence.   We therefore reject defendants prosecutorial misconduct claim on the merits.

IV. Cumulative Error

Last, defendant contends the errors in this case were cumulatively prejudicial and denied him his right to a fair trial.   We disagree.   As we have not found any error, there cannot be cumulative error.

DISPOSITION

The judgment is affirmed.

HILL, J.

WE CONCUR:

DAWSON, Acting P.J.

POOCHIGIAN, J.

FOOTNOTES

FN1. Further statutory references are to the Penal Code unless otherwise specified..  FN1. Further statutory references are to the Penal Code unless otherwise specified.

FN2. Doughty testified that, on the night of the party, he was carrying a Leatherman utility knife and a retractable sheet rock knife, which he used for work.   But he kept the knives in a lower pocket of his cargo pants and did not show them to anyone.   Gaona, however, told police that Doughty actually showed her a knife.   The knife she described had a fixed blade and was not a pocketknife.   After the shooting, the police found Doughtys two knives under a lawn chair in the backyard.   It was not clear how they got there or whether they had been placed there by the emergency technicians who assisted Doughty after the shooting..  FN2. Doughty testified that, on the night of the party, he was carrying a Leatherman utility knife and a retractable sheet rock knife, which he used for work.   But he kept the knives in a lower pocket of his cargo pants and did not show them to anyone.   Gaona, however, told police that Doughty actually showed her a knife.   The knife she described had a fixed blade and was not a pocketknife.   After the shooting, the police found Doughtys two knives under a lawn chair in the backyard.   It was not clear how they got there or whether they had been placed there by the emergency technicians who assisted Doughty after the shooting.

FN3. The trial court gave the jury CALCRIM No. 1403, on the limited purpose of the gang evidence as follows:  “You may consider evidence of gang activity only for the limited purpose of deciding whether:  [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements, and special circumstances allegations charged:  [¶] OR [¶] The defendant had a motive to commit the crime charged.  [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.  [¶] You may not consider this evidence for any other purpose.   You may not conclude from this evidence that defendant is a person of bad character or that he has a disposition to commit crime.”.  FN3. The trial court gave the jury CALCRIM No. 1403, on the limited purpose of the gang evidence as follows:  “You may consider evidence of gang activity only for the limited purpose of deciding whether:  [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements, and special circumstances allegations charged:  [¶] OR [¶] The defendant had a motive to commit the crime charged.  [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.  [¶] You may not consider this evidence for any other purpose.   You may not conclude from this evidence that defendant is a person of bad character or that he has a disposition to commit crime.”

FN4. Specifically, the trial court stated:  “Well, Counsel, I'm looking at the holding orders that came out of the Preliminary Hearing conducted back in August 16, 2007 when Judge Nunez, Judge Nunez specifically finds there is sufficient cause to believe the further alleged crime was committed pursuant to Penal Code Section 186.22, sub (b) sub (1) and specifically makes the findings.   Now, as to both counts that the offenses were committed for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.   The appropriate way to detect that or address that, question that is then by motion prior to trial.  [¶] And now essentially I'm going to rely upon the findings of the court in August of 2007, [and] find that the gang allegations are inextricably interwoven into the substantive crimes alleged.   In the event at the close of the People's case there is reason to believe that the burden has not been met under 1118 of the Penal Code, then you have the further remedy.   Otherwise, I believe that it would be an unwise use of judicial resources to bifurcate the issue.   The evidence is going to be substantially the same and makes no sense and there is no legal basis for me to try to whittle some facts out from the essential allegations that the case concerns.   Motion to bifurcate is denied.”.  FN4. Specifically, the trial court stated:  “Well, Counsel, I'm looking at the holding orders that came out of the Preliminary Hearing conducted back in August 16, 2007 when Judge Nunez, Judge Nunez specifically finds there is sufficient cause to believe the further alleged crime was committed pursuant to Penal Code Section 186.22, sub (b) sub (1) and specifically makes the findings.   Now, as to both counts that the offenses were committed for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.   The appropriate way to detect that or address that, question that is then by motion prior to trial.  [¶] And now essentially I'm going to rely upon the findings of the court in August of 2007, [and] find that the gang allegations are inextricably interwoven into the substantive crimes alleged.   In the event at the close of the People's case there is reason to believe that the burden has not been met under 1118 of the Penal Code, then you have the further remedy.   Otherwise, I believe that it would be an unwise use of judicial resources to bifurcate the issue.   The evidence is going to be substantially the same and makes no sense and there is no legal basis for me to try to whittle some facts out from the essential allegations that the case concerns.   Motion to bifurcate is denied.”

FN5. The prosecution must also prove “that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol;  (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute;  and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses') during the statutorily defined period.”   (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley ), italics omitted.)   Defendant does not challenge the evidence concerning these elements, and thus implicitly concedes the sufficiency of the evidence supporting them..  FN5. The prosecution must also prove “that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol;  (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute;  and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses') during the statutorily defined period.”   (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley ), italics omitted.)   Defendant does not challenge the evidence concerning these elements, and thus implicitly concedes the sufficiency of the evidence supporting them.