THE PEOPLE v. BENJAMIN GONZALEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN GONZALEZ et al., Defendants and Appellants.

B211559

Decided: February 10, 2010

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Benjamin Gonzalez. Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant Gilbert E. Gomez. Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant Gerson Bazan. Edward S. Temko, under appointment by the Court of Appeal, for Defendant and Appellant Spencer Bazan. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury found that on November 20, 2006, Norman Cox was murdered by defendants Benjamin Gonzalez, Gilbert Gomez, Spencer Bazan, and his brother Gerson Bazan 1 in violation of Penal Code section 187, subdivision (a).2  The jury found the murder was in the first degree, it was committed to benefit a criminal street gang (§ 186.22, subd. (b)), and Spencer personally used a knife in the commission of the crime (§ 12022, subd. (b)(1)).   As to Gerson, the jury found he was a minor who was over 15 years old at the time of the killing (Welf. & Inst., § 707, subd. (d)(1)).   In a separate proceeding, Gonzalez admitted the recidivist allegation that he suffered a prior serious or violent felony for purposes of the three strikes law. (§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i).)

Spencer received a sentence of 25 years to life for the murder, plus one year for the personal knife use finding.   Gerson and Gomez received sentences of 25 years to life for the murder.   Gonzalez's sentence of 25 years to life was doubled under the three strikes law.   Punishment on the gang allegation was stayed.   As to Gonzalez, the trial court found he violated probation based on the murder conviction.   Consecutive terms of eight months were imposed on the two counts of the probation violation.

Defendants each filed timely appeals raising a variety of claims:  (1) defendants contend there was constitutionally insufficient evidence to support their first degree murder convictions and, more specifically, the findings of premeditation and deliberation and specific intent to commit the crime as aiders and abettors;  (2) defendants contend the trial court prejudicially erred in failing to grant the defense motion to bifurcate trial of the section 186.22 gang allegation;  (3) defendants contend the trial court abused its discretion by admitting testimony from the prosecution's gang expert as to defendants' subjective mental state in committing the crime;  (4) Gomez contends the trial court erroneously and prejudicially admitted expert testimony concerning the Mexican Mafia;  (5) Spencer contends his trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to seek suppression of his confession;  (6) defendants contend the federal Constitution's due process clause proscribes prosecuting minors under the felony murder rule;  (7) Gonzalez contends the trial court erroneously and prejudicially admitted testimony by a prosecution witness that she was afraid to testify because Gonzalez's sister had threatened her; 3  (8) Gonzalez, Gerson, and Gomez contend the trial court failed to conduct an adequate inquiry into potential juror bias;  (9) Gerson contends the trial court prejudicially erred in admitting a letter that he purportedly wrote to his girlfriend; 4  (10) Gerson, Gomez, and Gonzalez contend the jury instruction stating that principals to a crime are “equally guilty,” when read in conjunction with the instruction defining the natural and probable consequences doctrine, prevented the jury from making independent assessments of whether each aider and abettor separately formed the premeditation and deliberation necessary for first degree murder;  (11) defendants contend the trial errors, even if not sufficient singly to warrant reversal, resulted in a miscarriage of justice when assessed for their cumulative impact;  (12) Gonzalez contends the trial court erred in denying his motion to strike his prior strike conviction under People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 529-530;  and (13) defendants contend their sentences were in violation of the California and federal constitutional proscriptions against cruel and unusual punishment.   Additionally, the parties point to a variety of claimed sentencing errors, and Gonzalez makes a number of contentions arising out of his probation violation case.

STATEMENT OF FACTS

On November 20, 2006, 14-year-old Geovonie Taylor was living with his cousins, Michael and Norman Cox, who were 16 and 18 years old.   After school that day, Taylor met the Cox brothers at a friend's house.   It was nighttime when they left the friend's house and decided to walk home.   None of them was armed.   They walked down Anaheim Street and began to turn down Gundry Avenue, near a construction site.   There were three Hispanic males across the street, along with two Hispanic females.   Taylor heard the males call out repeatedly, “Eastside Longos,” “fuck Niggers,” “F Insane,” 5 and “F 20.”   Taylor knew that Eastside Longos, the 20's, and Insane were all gangs.   He understood them to be making gang threats.   Taylor was wearing his school uniform, which included a burgundy colored shirt.   Norman wore red and blue sweat pants, a black long-sleeved shirt, and a red and white baseball cap with “Big Baby” on it.6

Taylor and the Cox brothers continued to walk, but they could not continue down Anaheim because their path was blocked by the construction site gates-so they turned left onto Gundry.   As they did so, the Hispanic males ran across the street toward them, calling out gang names, “F Niggers” and “Eastside Longos.”   There appeared to be five males in all.   The Hispanic males asked where they were from, which Taylor understood as asking for their gang affiliation.7  Neither Taylor nor the Cox brothers responded.   In the meantime, the Hispanic males surrounded them as they tried to back away.   One of the Hispanic males approached them, while making a gang threat;  another reached for something from his back, near his hip.   Norman pushed Taylor and Michael back and faced the Hispanic males, who surrounded him.

One of the Hispanic males ran up to Norman and “socked him in the head.”   Norman tried to escape, but slipped and fell.   While Norman was on the ground, the Hispanic males repeatedly kicked and punched Norman all over his body.   Norman curled up and tried to fend off the blows.   Taylor was too afraid to help his cousin.   When another of the male Hispanics approached, Taylor and Michael said they “did not bang,” and they were left alone.   Taylor heard Norman say, “Please don't stab me.”   There were four Hispanic males around Norman at the time.   Although Taylor did not see any of the attackers holding a weapon, he saw one of them making stabbing motions at the time Norman cried out.   Norman did not fight back;  he was not armed.   The Hispanic males ran away when Taylor yelled and ran toward them.

Taylor saw Norman was bleeding from his mouth, so he ran to the park where a dance was going on and asked for help.   The paramedics and police arrived approximately 15 minutes later.   Norman had suffered eight stab wounds, including a fatal wound to the left side of his chest that penetrated the lung.   Other wounds appeared to be defensive in nature.   The stabbing instrument that was used had one blunt edge and one sharp edge.   It could not be determined whether there were multiple instruments used.   At trial, Taylor identified Gonzalez and Gerson as attackers.   From a photographic six-pack lineup, Taylor identified Gonzalez as the one who stomped on Norman and punched his ribs.   At the preliminary hearing, Taylor identified Gonzalez, along with Spencer and Gerson.   He was not sure about his identification of Gomez.

Seleta Castillo lived on Hoffman Avenue, a block away from Gundry.   That night, she was walking home from work along Gundry.   At the intersection of Gundry and Anaheim, she saw four or five male Hispanics, which included defendants, and two female Hispanics across the street.   She had previously seen defendants in the neighborhood and in her apartment complex, and she had also seen the two females holding hands with Gonzalez and Gerson.   As Castillo walked home, she saw some African-American males walking down Anaheim.   Defendants called out their gang affiliation and told the African-Americans they were not supposed to be there-it was not their “turf.”   They repeatedly demanded to know what the African-Americans were doing in their neighborhood.   Gonzalez called out, “Nigger.”   The African-Americans did not respond.

Defendants approached the African-Americans, who were turning down Gundry.   Norman said, “I don't want no problems” and put his hands up.   There was nothing in his hands.   Defendants surrounded him and passed a weapon amongst themselves.   Defendants began to strike and kick Norman.   They continued to beat Norman after he had fallen to the ground.   Afterwards, they ran away to Hoffman Avenue.   Castillo walked past defendants during the course of the attack.   At no time during the incident did the African-Americans say anything hostile or antagonistic to defendants.

Castillo went home, but was too frightened to call the police.   Defendants had seen her and knew where she lived.   She feared that she or her family would be in danger if she did.   When the police subsequently contacted her at work, she identified Gonzalez by name and identified all four defendants' photographs.   After the incident, Castillo saw Gonzalez's sister on the bus, who mumbled something to her in a threatening manner and said she would “get” Castillo's daughter.8  That made Castillo afraid to testify.   She received financial assistance from Los Angeles County to help her move to a different neighborhood.

Officer Vuong Nguyen of the City of Long Beach Police Department was on patrol in Long Beach at 9:00 p.m. He and his partner responded to a stabbing incident on Gundry and Anaheim.   He found Norman on the ground, bleeding.   The area was fairly well illuminated by streetlights.   There was a red hat lying next to Norman's body.

Eva Ramirez was Gonzalez's girlfriend at the time of the incident.   Gonzalez told her that he was a member of “NKS,” but Ramirez was not sure whether it was a street gang.   Spencer told her that he was a member of the Eastside Longos.   Ramirez was afraid to testify because of “the consequences,” which included risk to the safety of her family.   She was also acquainted with the other three defendants for some months.   As such, she knew Gerson's girlfriend, Nancy Ascencio, who lived with the Bazan brothers on Hoffman.

Ramirez saw the stabbing incident.   That morning, she, Ascencio, and another female visited Spencer.   Toward the end of the day, Gomez and Gonzalez joined them.   It was dark outside when they all left together to go to the nearby park.   They walked back on Gundry.   A young female Ramirez did not know came up and spoke with Gomez.   A young male named Marcos joined them too;  Gerson was not present.   Three African-Americans were walking across the street from them.   She heard them say something.   At some point, she heard someone twice yell, “This is Insane Crips,” which she understood as a gang challenge.   She looked over and saw an African-American male wearing a red hat, which she believed was a gang color.   Gonzalez, Gomez, Spencer, and Marcos ran across the street to confront the African-Americans.   She heard one of them swear at the African-Americans;  she also heard one of them say Eastside Longos.   Gonzalez, Gomez, and Spencer fought one of the African-Americans.   Ramirez did not see them use any weapon.   Marcos did not take part;  he was standing with the two African-Americans who were not fighting.   Gonzalez, Gomez, and Spencer ran back across the street, leaving the victim on the ground, before running back to the apartment complex on Hoffman.

A few weeks after the incident, Gonzalez told Ramirez that the victim had died and whichever one of them was first arrested “would take the blame.” 9  Gonzalez telephoned her from jail after his arrest.   In the conversation, Gonzalez told Ramirez to say that she was with him at his house at the time of the incident and to arrange an alibi with his sister Andrea.10  Gonzalez got a “Long Beach” tattoo on his forehead while in custody.   She knew Gonzalez by the nickname “Ceenoe”;  Gomez by “Muneco”;  Spencer by “Minor”;  and Gerson by “Sonick.”

Marcos Robles, 15 years old at the time of the incident, was acquainted with Gonzalez and Gomez.   Robles testified pursuant to an agreement immunizing him from prosecution.   He was present at the stabbing scene.   He ran away with a group of ten persons toward Hoffman.   He denied telling the police that he saw defendants running across the street and joined them.   An audiotape of his interview with police was played to the jury.   He was afraid of testifying against defendants because he feared violent retribution.

In February 2007, Kwanna Childress received a letter in the mail.   The envelope indicated that it was sent by Gerson and addressed to “Elizabeth Nancy” on Hoffman Avenue.   Childress opened the envelope without looking at the address, however, assuming it was addressed to her.   The evidence concerning the letter was admitted solely as to Gerson.   One line in the letter stated, “Remember you are also a suspect in the murder on Gundry.”   It was signed by “Sonick” with the letter “c” crossed out.   She took the letter to the police.   Detective Daniel Mendoza testified that the letter contained the word “Longeros,” which is a reference to the Eastside Longos.   It also contained the letters “M.D.S.,” which members of that gang used to refer to their sect as the “Malditos.”   There was also a reference to someone called “Massive,” who was a member of the Eastside Longos.

Spanish language interpreter Alfred Calderon translated portions of the letter, which referred to Ascencio as a “bitch” and a “whore.”   The writer was angry with her because she had disobeyed his request to stay away from “every Longero, especially from the M.D.S.” It also contained a threat that “Massive” would “fuck [her] up.”   The letter went on to say that “the Big Homey” said he needed the money owed by “G Strap” and “Acid” by March 14 “because of the business they were doing.”   He advised her not to leave her house “because if the police get [her], that's all on [her].”   She must “stay away from everyone” because the Eastside “Longos got the green light.”

Detective Malcolm Evans testified that defendants lived in apartments on Hoffman, close to each other and the murder scene.   Detective Evans interviewed Spencer on the day of his arrest.   After advising Spencer of his Miranda rights,11 Spencer waived those rights and agreed to speak to the detective.   Initially, Spencer denied any knowledge of Norman's stabbing.   The audiotape of the interview was played to the jury, subject to the instruction that the evidence was admissible solely against Spencer.   In his statement, Spencer admitted stabbing the victim, but explained that he did it in self-defense.   One of the African-American males first approached Spencer and made a gang challenge.   When Spencer said he was “from Longo,” the African-Americans made more threats.   The “main guy”-apparently, Norman-ran at Spencer and knocked him down.   Spencer saw the others begin to run toward him.   Fortuitously at the moment Spencer fell, he found a screwdriver lying on the ground, which he used repeatedly to stab his victim.   Detective Evans participated in a search of the Bazan residence.   Two screwdrivers and a knife were found in his bedroom.

Officer Miguel Rosales testified that Gonzalez had admitted being a member of a “tag banger crew” called “NKS,” or “Nip Killing Squad.”   His gang moniker was “C-Note.”   Officer Rosales understood that Gonzalez had subsequently been “jumped into” the Eastside Longos, which was a full-fledged criminal street gang.   Gomez had admitted to membership in the Eastside Longos.   Both Spencer and Gerson had admitted being members of the Eastside Longos.   The stabbing scene was inside Eastside Longos territory.   Baby Insane, a violent clique of the Insane Crip gang, claim all of Long Beach as their territory and are enemies of the Eastside Longos.   The hat worn by Norman is consistent with Baby Insane membership.12

Detective Hector Gutierrez was the prosecution's gang expert.   He was familiar with the Eastside Longos gang, having investigated it for 18 years.   At the time of Norman's murder, the gang numbered approximately 1100 members.   The location of the stabbing was within territory claimed by Eastside Longo.   He testified as to predicate crimes committed by other Eastside Longos.  “M.D.S.” or “Malditos” was an Eastside Longo clique.   The Eastside Longos are in conflict with African-Americans.   Violent confrontations with African-Americans are likely to be fatal due to the Eastside Longos' “mindset.”   Within the Eastside Longos, it is understood that a member will enhance his reputation in the gang by committing increasingly violent crimes.   Eastside Longo members will tend to be armed in their own territory because rival gangs claim portions of territory within that claimed by the Eastside Longos.

Gerson is also a self-admitted Eastside Longo, with a gang-related tattoo on his arm.   He also has the letters “SUR” tattooed on his chest, which is significant for prison purposes because northern and southern California gang members are enemies in prison.   Gerson's gang moniker is “Sonick.”   Most Hispanic gangs are related to the Mexican Mafia, which is a prison gang.   The phrase “green light” means that “it is open season on your gang because you're not obeying by the Mexican Mafia rules.” 13  Spencer is a self-admitted Eastside Longo with the monikers “Minor” and “Crow.” Gomez is a self-admitted Eastside Longo, with the moniker “Little Muneco.”   Gonzalez is also a self-admitted Eastside Longo, who was previously associated with NKS, which is a tagging crew.

As to Gerson's letter to Ascencio, Detective Gutierrez opined that it was signed with his gang moniker and referred to “Massive,” who was also a member of that gang.   The letter also uses the term “Longero,” which means Eastside Longo.   An Eastside Longo member will typically cross out the letter “c,” as was done in “Sonick's” signature, because “c” stands for the gang's rivals, the Crips.   Eastside Longos are hostile towards African-Americans and Asian-Americans because those ethnic groups comprise the membership of Crip gangs.

After listening to a hypothetical set of facts consistent with the prosecution case, Detective Gutierrez opined that Norman's stabbing would have been committed to benefit the Eastside Longos.   The Eastside Longos “have problems with African-Americans.”   The Eastside Longos often commit violent crimes, and their reputation within the gang is enhanced by doing so.   Further, commission of violent offenses serves as a warning to rivals and to community members.   The former will be less likely to attack Eastside Longos and the latter will be less likely to report Eastside Longos for committing crimes.   Within the gang's culture, it is understood that those who “snitch” against gang members will suffer violent retribution.   Civilians, as well as gang members, understand this.   As a result, many witnesses are afraid to testify against gang members, which inures to the benefit of the gang, allowing its members to commit crimes with impunity.

If an African-American male wearing a red cap with “Big Baby” on it yelled out “This is Baby Insane,” it would be understood as a gang challenge from a gang with a reputation for violence.

Defense Case

Gonzalez rested without presenting any evidence.

Gomez called Detective Evans, who testified that when Gomez was arrested in May 2007, he had 12 paycheck stubs in his possession, dating from November 19, 2006, through May 6, 2007.

Gerson called his mother, Maria De Los Angeles Lozano, who testified that her two sons lived with her in an apartment on Hoffman Avenue at the time of the incident.   Marta Monzon was the building manager.   Lozano arrived at her apartment from work at 4:30 p.m. and fell asleep until approximately 8:30 p.m. At that time, Monzon unlocked the apartment door for Gerson and his girlfriend, Ascencio.   Neither Gerson nor Ascencio left the apartment that night.   On cross-examination, Lozano testified that she awoke to see Gerson and Ascencio.   After that, Lozano went to Spencer's bedroom and fell asleep until 11:30 p.m. Lozano would not have known whether they left the apartment in the meantime.

Monzon testified that she was on duty on an evening around the time of the incident.   Gerson and Ascencio asked for a key to the Bazan apartment because his mother did not answer the door.   Monzon gave Gerson the key and saw him and Ascencio go upstairs toward the Bazan apartment.   It was approximately 6:30 p.m. From Monzon's apartment, she could see persons entering the apartment building.   At approximately 8:30 p.m., Gerson returned the key to Monzon.   She went to sleep at 9:30 or 10:00 p.m.

Gerson testified that on the day of the stabbing incident Ascencio stopped by to see him, and he told her they were going to a party that night.   However, their ride did not show up, so they went back to the Bazan apartment.   It was approximately 8:00 p.m. He knocked on the door, but there was no answer.   He did not have the apartment key, so he got a key from Monzon.   He opened the door for himself and Ascencio and found his mother asleep.   Within approximately 30 minutes, he went downstairs and returned the key to Monzon.   He went back to the apartment and went to bed and slept there until the following day.   He did not participate in an attack of an African-American male.

While in custody following his arrest, Gerson corresponded with Ascencio.   He did not author the letter referenced by Childress.  “Sonick” is not his nickname.   Gerson is not associated with the Eastside Longos.   His tattoos are not gang-related.

Ascencio generally corroborated Gerson's testimony concerning the events of November 20, 2006.   They spent the evening and night in the Bazan apartment and did not go outside to the location of the stabbing incident.   She did not see the other defendants that night.   The letter referenced by Childress was not in Gerson's writing.

Spencer called Officer Bernardo Brajas who had responded to the stabbing incident and interviewed Taylor.   Taylor did not tell the officer that prior to the stabbing, he was coming from a residence near 10th and Alamitos, as he had done at trial.

DISCUSSION

Sufficiency of Evidence

The prosecution argued that, while it was Spencer who fatally stabbed Norman, defendants acted together in the attack on Norman and they did so with the knowledge that Spencer was armed with the murder weapon.   As such, Gomez, Gonzalez, and Gerson directly aided and abetted Spencer in committing the murder with deliberation and premeditation.   Alternatively, the prosecution argued the three non-stabbers were guilty of first degree murder because they aided and abetted the assault with knowledge that the resulting murder was a “natural and probable consequence” of that assault.   As we explain, there was reasonable, credible, and solid evidence to support the jury's findings on both theories.

The applicable legal standards are well established.  “In reviewing a criminal conviction challenged as lacking evidentiary support, ‘ “the court must 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.” ’  [Citation.]  The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation], and to special circumstance allegations [citation].   An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.”  (People v. Maury (2003) 30 Cal.4th 342, 396.)

“Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)[¶]  Accomplice liability is ‘derivative,’ that is, it results from an act by the perpetrator to which the accomplice contributed.   [Citation.]”  (People v. Prettyman (1996) 14 Cal.4th 248, 259.)  “ ‘[A]n aider and abettor is a person who, “acting with (1) knowledge of the unlawful purpose of the perpetrator;  ․ (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense[;  and] (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” ’  [Citations.]”  (People v. Jurado (2006) 38 Cal.4th 72, 136.)   “Among the factors which may be considered in making the determination of aiding and abetting are:  presence at the scene of the crime, companionship, and conduct before and after the offense.”  (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)

Gomez, joined by Gonzalez and Gerson, argues the finding of first degree murder cannot stand because there was no substantial evidence of Spencer's premeditation or planning in stabbing Norman.   That is, there was no substantial evidence that defendants formed the intent to do anything more than beat their victim.   In support of this argument, Gomez argues the jury must have found Spencer's stabbing was unforeseeable as Spencer's sudden, unanticipated reaction to Norman's provocation.   In addition, Gonzalez, joined by Gomez and Gerson, argues there was no substantial evidence that anyone other than Spencer facilitated the killing or intended to kill Norman.   We disagree with both assertions.

There are three common categories of evidence bearing on the existence of the premeditation and deliberation element of first degree murder-planning activity, motive, and the manner of killing.  (People v. Perez (1992) 2 Cal.4th 1117, 1125;  People v. Anderson (1968) 70 Cal.2d 15, 25-27.)   These “factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.”  (People v. Perez, supra, at p. 1125.)   In assessing the sufficiency of the evidence as to the element of premeditation and deliberation, “ ‘[t]he true test is not the duration of time as much as it is the extent of the reflection.   Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes ․ those homicides ․ which are the result of mere unconsidered or rash impulse hastily executed.’  [Citations.]”  (People v. Velasquez (1980) 26 Cal.3d 425, 435, vacated and remanded on other grounds in California v. Velasquez (1980) 448 U.S. 903.)

Here, the prosecution gang expert presented evidence that defendants were all members of the same criminal street gang, that the killing occurred in their gang's territory, and that the statements they made before and during the incident were gang threats.   Taylor testified that defendants were standing together when they made what he understood as gang threats to him and the Cox brothers.   Defendants surrounded Norman and repeatedly kicked and punched the defenseless victim after one of the defendants knocked him to the ground.   Toward the end of that concerted beating, Taylor saw one of the defendants make stabbing motions against Norman, before defendants ran away together.   Similarly, Castillo saw all four defendants together when the gang threats and racial taunting against the African-American males were made.   While defendants surrounded Norman, she saw them pass a weapon around to each other.   She did not see the stabbing itself, but watched as defendants beat Norman into submission, before they left him lying on the ground and ran away together.

From that testimony, the jury had a solid evidentiary basis for finding that defendants acted together to facilitate the murder.   There was close companionship before, during, and after the stabbing.   Planning activity was shown by the gang threats and by the actions in following Taylor and the Cox brothers, and isolating Norman.   The gang evidence showed all four defendants shared the same motive.   Defendants Gomez, Gonzalez, and Gerson were in the same rival gang that yelled gang threats to the victim.   They joined with Spencer in surrounding the victim, thereby isolating Norman from his friends and preventing his escape.   From the testimony that Gomez, Gonzalez, and Gerson were in the same group that appeared to pass around the murder weapon, the jury could reasonably infer they shared the knowledge that a knife or screwdriver would be used against Norman.   The evidence that defendants fled together tended to negate a reasonable inference that any of the three non-stabbers tried to disassociate himself from the fatal attack.   In short, the prosecution case presented strong evidence of all three of the recognized planning and deliberation factors and went well beyond showing that Gomez, Gonzalez, or Gerson were mere bystanders to Spencer's lethal actions.

Alternatively, Gomez and Gonzalez (joined by Gerson) argue there was no substantial evidence to support the prosecution's theory that murder was the natural and probable consequence of the assault on Norman.  “ ‘A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.   The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.  [Citation.]’  [Citation.]   Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’  [Citation.]”  (People v. Medina (2009) 46 Cal.4th 913, 920.)   As our Supreme Court explained, “ ‘the ultimate factual question is one of foreseeability.’  [Citation.]”  (Ibid.) It need not be a strong probability-” 'a possible consequence which might reasonably have been contemplated ․' ” will suffice.  (Ibid.) The issue of whether the consequence is reasonably foreseeable is a factual issue to be resolved by the jury based on its evaluation of all the factual circumstances of the individual case.  (Ibid.)

Evidence that four gang members surrounded a single victim, made gang and racial threats, and proceeded to administer a concerted beating by repeatedly punching and kicking a defenseless victim (who appeared to be a member of a rival gang) was sufficient by itself to support the jury's finding, even without the evidence that defendants passed around the murder weapon prior to, or during, the beating itself.  (See People v. Medina, supra, 46 Cal.4th at pp. 920-921, citing People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 [fatal shooting during gang-related fistfight was natural and probable consequence of fistfight];  People v. Montes (1999) 74 Cal.App.4th 1050, 1056 [shooting of rival gang member during retreat from fight was natural and probable consequence of gang fight in which the defendant wielded a chain];  People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 [the defendant's punching of victim during gang confrontation foreseeably led to fatal shooting of victim by fellow gang members];  People v. Godinez (1992) 2 Cal.App.4th 492, 499-500 [fatal stabbing of rival gang member either during or after fistfight was natural and probable consequence of fistfight];  People v. Montano (1979) 96 Cal.App.3d 221, 226 [the defendant's aiding and encouragement of battery on victim foreseeably led to shooting of victim by fellow gang member].)

Severance of Gang Allegation

Gerson, Gomez, and Gonzalez contend the trial court prejudicially erred in failing to grant the defense motion to bifurcate trial of the murder charge and the section 186.22 gang allegation, further asserting the refusal to bifurcate resulted in a violation of due process and miscarriage of justice.   The contention fails because the gang evidence was admissible on both the murder charge and the special gang allegation.

We review the trial court's ruling under the deferential abuse of discretion standard.  (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez ).)   In opposing the bifurcation motion, the prosecution argued that its proffered evidence would support the reasonable inference of a gang-related killing, based on defendants' status as members of a gang who made gang challenges in the process of committing the murder, which occurred in their gang's territory.   Accordingly, the gang evidence tended to show a gang-related motive, intent, and malice as to the underlying offense.   The trial court denied the motion.

Defendants demonstrate neither error nor prejudice.   Evidence of gang membership is often relevant to, and admissible regarding, the charged offense.   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 itself-for 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.”  (Hernandez, supra, at p. 1050.)   Accordingly, a trial court's discretion to deny a bifurcation motion is broader than its discretion to admit gang evidence when the gang allegation is not charged.  (Ibid.) Joinder of a gang allegation and substantive charge is inappropriate only when the evidence admitted to prove the gang allegation is so minimally probative on the charged offense, and so inflammatory in comparison, that it threatens to sway the jury to convict regardless of actual guilt.  (Id. at p. 1051.)   The defendant has the burden of clearly establishing a substantial danger of prejudice requiring bifurcation.  (Ibid.)

Here, defendants failed to satisfy that burden because there was substantial evidence to support the reasonable inference of a gang-related motive for the killing of Norman Cox. As we have recounted, defendants identified themselves as Eastside Longos at the time they committed the fatal beating.14  There was no evidence of any motive for the killing other than to vindicate the Eastside Longos' territorial claim.   Accordingly, because the gang evidence of motive would have been admissible at a trial of guilt on the murder charge, “any inference of prejudice would be dispelled, and bifurcation would not be necessary.  (See People v. Balderas (1985) 41 Cal.3d 144, 171-172 [discussing severance of charged offenses].)”  (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)

Finally, the appellate invocation of the due process clause is similarly lacking in merit.   We discern nothing in defendants' argument that directly implicates the federal Constitution.  “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.”  (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida ), citing Estelle v. McGuire (1991) 502 U.S. 62, 70;  Spencer v. Texas (1967) 385 U.S. 554, 563-564;  People v. Falsetta (1999) 21 Cal.4th 903, 913.)   We consider the “very narrow due process argument on appeal” that “the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process.”  (Partida, supra, at p. 435.)   There was no such evidentiary objection, and we find no due process violation for the same reasons we found no prejudicial error under state law.

Admission of Expert Gang Testimony

Gerson, Gomez, and Gonzalez contend the trial court abused its discretion by admitting testimony from the prosecution's gang expert, Detective Gutierrez, in which the expert impermissibly opined as to a matter outside the scope authorized by Evidence Code sections 720 and 801.   More specifically, they argue, Detective Gutierrez opined as to defendants' subjective mental state in committing the crime-that they intended to kill their African-American victim on behalf of the Eastside Longos.   As we explain, this contention fails because our review of the record shows Detective Gutierrez did not purport to testify as to what defendants were thinking during the incident, but rather as to his

During the direct examination of Detective Gutierrez, the trial court overruled a defense objection on the ground of speculation and permitted the expert to testify that if a group of Eastside Longos were to beat up an African-American, the beating would likely be fatal.   In response to the trial court's question as to the expert's reasons for that opinion, Detective Gutierrez explained that in his experience, such beatings often ended with the victim's death because of the gang members' “mindset.”   The trial court sustained the objection that this answer was an impermissible expert opinion as to defendants' subjective state of mind and struck the answer.   The prosecutor rephrased the question so that it was stated in the hypothetical, concerning whether attacks by Eastside Longos on African-Americans typically turn fatal.   The trial court overruled the defense objection of improper opinion as to a defendant's mental state, permitting the expert to opine that “[g]ang members have the mindset ‘I'm going to hurt you, kill you.’   That is what they do.” 15

The expert further explained that in the gang's culture, the more violent a gang member's actions, the more his reputation within the gang would be enhanced.   After the gang expert opined that the killing would have been committed for the benefit of the Eastside Longos because killing a potential rival in their territory would enhance their gang reputation, the defense moved for a mistrial on the ground that the expert had testified as to defendants' mental state at the time of the killing.   The trial court overruled the motion, finding the testimony was made in the hypothetical and did not refer to defendants' subjective mental state, but was made with reference to the motivations typical of members of the Eastside Longos.

The applicable standards concerning the legitimate scope of a gang expert's testimony are well settled.   Such testimony may properly be admitted to prove motive and intent.  (See People v. Funes (1994) 23 Cal.App.4th 1506, 1518.)   Expert testimony has repeatedly been offered to prove the “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang.”  (People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew ).)   An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jury's common experience.  (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.)

Contrary to defendants' assertions, Detective Gutierrez's testimony fell within the general rule that testimony concerning the culture and habits of criminal street gangs meets the criteria for the admission of expert testimony because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.  (People v. Gardeley (1996) 14 Cal.4th 605, 617;  In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).)  “It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation.  [Citation.]”  (Frank S., supra, at p. 1196.)   Again, valid subjects of gang expertise include motivation for a particular crime and whether a crime was committed to benefit or promote a gang.  (Killebrew, supra, 103 Cal.App.4th at p. 657.)   As we explained supra, the gang evidence was relevant to explain why defendants would commit such a violent attack on an unarmed African-American:  The Eastside Longos were biased against African-Americans in general and as potential members of rival gangs.16  It would have been a matter of gang pride to attack and fatally wound such a person who encroached in territory claimed by the Eastside Longos.

Nor was this a case in which the expert exceeded the proper bounds of gang testimony by opining as to defendants' subjective knowledge and motivations.   For instance, in Frank S., the gang expert improperly opined as to the minor's intent regarding knife possession without any supporting evidence of gang motive.  (Frank S., supra, 141 Cal.App.4th at p. 1199.)  “The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.”  (Ibid.) As the record makes plain, Detective Gutierrez's opinion testimony was based on precisely the kind of evidence lacking in Frank S. and related cases.  (See Killebrew, supra, 103 Cal.App.4th at pp. 657-658;  People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 [gang expert's testimony properly admitted to explain how the gang's reputation was enhanced through drug sales].)   To the extent the expert's opinion could be understood as implicating defendants' subjective motivations, the expert did so only tangentially and within the context of explaining how their conduct was consistent with the culture of the Eastside Longos.   Accordingly, there was no abuse of discretion in admitting the evidence and no substantial likelihood of prejudice.

Gomez separately contends the testimony by Detective Gutierrez that the Mexican Mafia prison gang has the exclusive power to authorize a “green light” on a Hispanic street gang in Southern California was inadmissible.   According to Gomez, the references to the Mexican Mafia were irrelevant to the underlying offense and highly prejudicial because of the Mexican Mafia's notoriety.   His claim fails because the evidence was admitted for a limited, relevant purpose solely as to Gerson.

As recounted ante, the letter found by Childress was apparently authored by Gerson under the name “Sonick.”   It was addressed to Gerson's girlfriend Ascencio and contained multiple gang references to the Eastside Longos.   At one point, the letter urged Ascencio to stay away from the gang members because the Eastside “Longos got the green light.”   Detective Gutierrez subsequently testified that Gerson was a member of the Eastside Longos with the moniker “Sonick,” who had “SUR” tattooed on his chest.   It was in that context that the gang expert testified as to the meaning of a “green light.”   At that time, the trial court admonished the jury that the testimony was admitted only as to Gerson.

Leaving aside the fact that Gomez forfeited his claim by failing to object to the testimony he seeks to challenge on appeal, we perceive no abuse of discretion and no reasonable likelihood of prejudice arising out of the Mexican Mafia testimony.   The references to the Mexican Mafia in this case were carefully circumscribed for the undeniably relevant purpose of explaining a gang reference in an inculpatory letter.   The references themselves were not especially inflammatory and were admitted solely against Gerson, who had authored the letter.   Accordingly, Gomez's reliance on People v. Albarran (2007) 149 Cal.App.4th 214 is entirely misplaced.   There, the prosecution presented lengthy, inflammatory testimony concerning the Mexican Mafia, despite the lack of evidence that the underlying shooting was gang-related.  (Id. at pp. 226-228.)

Moreover, given the trial court instructed that the evidence could be considered only as to Gerson, there was no significant likelihood of prejudice as to the other defendants.  “ ‘[It is] the almost invariable assumption of the law that jurors follow their instructions.’  [Citation.]  ‘[We] presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’   [Citations.]”  (United States v. Olano (1993) 507 U.S. 725, 740;  People v. Romo (1975) 14 Cal.3d 189, 195;  People v. Sisneros (2009) 174 Cal.App.4th 142, 152-153.)   It follows that Gomez fails to raise a cognizable claim under the federal due process clause.  “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.”  (Partida, supra, 37 Cal.4th at p. 439) On this record, the challenged evidence was admissible and nonprejudicial for the limited basis for which it was admitted, and there is no reason to think the jury considered the evidence against Gomez.17

Admission of Spencer's Confession

The record shows that before making his statement to investigation officers, Spencer read and signed a written waiver of his Miranda rights, and orally represented that he understood each of those rights.   Spencer contends his trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to seek suppression of his confession on the ground that the officers' failure to read the rights aloud rendered his confession involuntary as a matter of law.18  We disagree.   Spencer adduces no authority in support of his assertion that his confession was per se involuntary because there was no oral recitation of his rights or detailed showing that Spencer actually understood the written advisements.   As there is nothing in the record indicative of a lack of understanding or a lack of voluntariness, his Sixth Amendment claim fails.

“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings.”  (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694;  see Williams v. Taylor (2000) 529 U.S. 362, 390-391;  People v. Kraft (2000) 23 Cal.4th 978, 1068.)  “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’  (Strickland v. Washington, supra, 466 U.S. at p. 694;  People v. Riel (2000) 22 Cal.4th 1153, 1175.)”  (People v. Cunningham, supra, at p. 1003.)   Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice.  (In re Clark (1993) 5 Cal.4th 750, 766.)  “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record.  ‘If the 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.’   [Citations.]”  (People v. Cunningham, supra, at p. 1003.)

Here, Detective Evans testified that he interviewed Spencer on the day of his arrest.   The detective provided Spencer with written form that listed all of the suspect's Miranda rights.   Spencer appeared to read the form and either signed or initialed the boxes next to each of those particular rights, indicating that he understood them.   At no time during the audio-taped interview, which was conducted in English, did Spencer express any difficulty understanding the officers' statements or questions.

“In Miranda, supra, 384 U.S. 436, the United States Supreme Court ‘recogniz [ed] that any statement obtained by an officer from a suspect during custodial interrogation may be potentially involuntary because such questioning may be coercive’ and ‘held that such a statement may be admitted in evidence only if the officer advises the suspect of both his or her right to remain silent and the right to have counsel present at questioning, and the suspect waives those rights and agrees to speak to the officer.’  [Citation.]  The Miranda safeguards apply to confessions and ‘statements which amount to “admissions” of part or all of an offense’ regardless of whether they are exculpatory or inculpatory in nature.  (Miranda, supra, 384 U.S. at pp. 444, 476-477.)”   (People v. Guerra (2006) 37 Cal.4th 1067, 1092.)

Neither the federal nor the California Supreme Court has stated or implied that an oral advisement of rights is the only means to insure a voluntary statement.   Indeed, the Supreme Court has “never insisted that Miranda warnings be given in the exact form described in that decision.”  (Duckworth v. Eagan (1989) 492 U.S. 195, 202-203, fn. omitted;  California v. Prysock (1981) 453 U.S. 355, 359 (per curiam) [“the ‘rigidity’ of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant,” and “no talismanic incantation [is] required to satisfy its strictures”].)   Here, it is undisputed that the written warning given to Spencer “touched all of the bases required by Miranda “-most essentially, they informed him that he had the rights to remain silent and to counsel, and that anything he said could be used against him in court.  (See Duckworth v. Eagan, supra, at p. 203.)

Nor does Spencer identify anything indicating a request for counsel or to discontinue questioning, much less anything suggestive of coercion or deception on the officers' part.   Instead, without any evidentiary basis, Spencer asserts that he may not have had sufficient English-language skills to understand the waiver form.19  His reliance on United States v. Garibay (9th Cir.1998) 143 F.3d 534 is therefore entirely misplaced.   In Garibay, the record of the suppression motion clearly indicated that the defendant's primary language was Spanish, his ability to understand English was extremely limited, and the evidence further established that intelligence testing showed him as borderline retarded.

In sum, nothing in this record indicates Spencer's trial counsel had reason to think his client lacked the ability to understand the written warnings.   This is hardly a case in which there could be no satisfactory explanation for trial counsel's strategic decision to forego a suppression motion.  (See, e.g., People v. Cunningham, supra, 25 Cal.4th at p. 1003.)   In the course of representation, counsel may well have gained information that militated against bringing such a motion.   The mere fact that the defense may have had “nothing to lose” in making such objections cannot form the basis for an ineffective assistance claim under the Sixth Amendment.  (Knowles v. Mirzayance (Mar. 24, 2009, No. 07-1315) _ U.S. _, 1411 [129 S.Ct. 1411, 1419].)

Felony Murder Contention

Spencer, joined by the other defendants, contends the federal Constitution's due process clause proscribes prosecuting minors under the felony murder rule.   As the Attorney General points out, however, whatever the merits of such an argument might be, they have no application to this appeal.   The jury was not instructed on the felony murder rule.   Indeed, that theory was neither mentioned nor implicated during the course of the trial.   Spencer makes no attempt to explain how the felony murder rule had any bearing on his conviction.   We therefore summarily reject this contention.

Admission of Castillo's Testimony Concerning Threat

Prosecution witness Castillo presented eyewitness testimony as to defendants' participation in the fatal attack.   Castillo lived close to defendants.   They saw her at the time of the incident and knew where she lived.   Over hearsay, relevancy, and lack of foundation objections, Castillo testified that sometime after the incident, she saw Gonzalez's sister on the bus.   The sister mumbled something to her in a threatening manner and said she would “get” Castillo's daughter.   Because of the threat, Castillo was afraid to testify.   The trial court instructed the jury to consider that testimony solely against Gonzalez.   Gonzalez argues the trial court prejudicially erred in admitting the evidence.

“We review for abuse of discretion a trial court's rulings on the admissibility of evidence.”  (People v. Benavides (2005) 35 Cal.4th 69, 90.)   Our review of the record shows that trial court's ruling was reasonable and non-prejudicial.  “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.  [Citations.]  An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court.”  (People v. Burgener (2003) 29 Cal.4th 833, 869.)  “[I]t is not necessary to show the witness's fear of retaliation is ‘directly linked’ to the defendant for the threat to be admissible.   [Citation.]  It is not necessarily the source of the threat-but its existence-that is relevant to the witness's credibility.”  (Id. at pp. 869-870.)   The court was therefore well within its discretion in overruling the relevancy objection.   Castillo's credibility was generally at issue as a key eyewitness.   The defense challenged her credibility based on the fact that she had received relocation expenses and she had failed to come forward to the authorities with her information.   At trial, she explained that she was too frightened to call the police.

Accordingly, as the Attorney General argues, Gonzalez's sister's statement was plainly admissible for a nonhearsay purpose-not for the truth of the statement, but to show the mental state of Castillo upon hearing it.  (See, e.g., People v. Bolden (1996) 44 Cal.App.4th 707, 715.)   Gonzalez does not argue lack of foundation on appeal, and it is clear from the record that Castillo was familiar with and could identify Gonzales's sister as the person who made the threat.20

In any event, we conclude admission of evidence of a third-party threat was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson ).   The California Supreme Court has twice applied the Watson harmless error standard to arguable improper admission of threats by third parties.  (People v. Mason (1991) 52 Cal.3d 909, 947 [when it is likely that jury understands the relevance of threats not made by the defendant, there is no reasonable probability that the verdict would have been more favorable to the defendant in the absence of the challenged evidence];  People v. Weiss (1958) 50 Cal.2d 535, 554 [in light of the “wealth of competent evidence” of guilt, “it appears unreasonable to believe that the jury attached controlling significance to the small bit of evidence” concerning a threat by a third party].)   Here, the prosecution did not present evidence to show, nor did it argue, that Gonzalez had anything to do with his sister's threat.

Potential Juror Bias

Gonzalez, joined by Gerson and Gomez, contends the trial court failed to conduct an adequate investigation into potential juror bias.   During a conference outside the jury's presence prior to an afternoon session of trial, counsel for Gonzalez asked the trial court to observe Juror No. 7 because of reports the juror had been “continually looking at all four defendants and shaking his head in a negative fashion right and left.”   The trial court stated that it had seen that juror close his eyes at one point and thought at first that he was sleeping, but concluded the juror was concentrating.   The trial court found the head-shaking too ambiguous a gesture to warrant questioning, but stated that it would observe the juror.

A defendant has a due process right to a fair and impartial jury “capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.”  (Smith v. Phillips (1982) 455 U.S. 209, 217.)   By the same token, “one accused of a crime has a constitutional right to a trial by impartial jurors.  [Citations.]”  (In re Hitchings (1993) 6 Cal.4th 97, 110.)   And “ ‘ “[t]he right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.” ’  [Citations.]”  (Ibid.) Section 1089 provides in pertinent part:  “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, ․ the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box[.]”

Nevertheless, “not every incident involving a juror's conduct requires or warrants further investigation.  ‘The decision whether to investigate the possibility of juror bias, incompetence, or misconduct-like the ultimate decision to retain or discharge a juror-rests within the sound discretion of the trial court.  [Citation.]  ․ [¶] As our cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute “good cause” to doubt a juror's ability to perform his duties and would justify his removal from the case.  [Citation.]’  [Citation.]”  (People v. Cleveland (2001) 25 Cal.4th 466, 478.)   We review the trial court's decision whether to investigate for abuse of discretion.   (Ibid.)

There was no abuse of discretion here.   The conduct reported concerning Juror No. 7 was inherently ambiguous as to whether it showed bias.   Additionally, nothing in the record suggests the juror's conduct was repeated after the time it was first reported.   This is nothing like the situation in People v. McNeal (1979) 90 Cal.App.3d 830, 836-839, where the trial court received information that a juror had personal knowledge of a fact in controversy, but failed to conduct anything beyond a cursory investigation to assess whether the juror could deliberate impartially.   Nor does this record give rise to an inference of potential juror misconduct such as found in People v. Burgener, supra, 41 Cal.3d 505.   There, the court committed error by failing to conduct an inquiry into misconduct after being “[a]lerted to the possibility that [a juror] was intoxicated during deliberations․”  (Id. at pp. 520-521.)

Admission of Letter to Ascencio

Gerson contends the trial court prejudicially erred in admitting a letter that he purportedly wrote to his girlfriend Ascencio, asserting the prosecution failed to adequately establish proper foundation as to authentication for the document's admission.   This contention borders on the frivolous.

As we set forth ante, the trial court admitted an envelope and letter addressed to Ascencio that appeared by be written by Gerson after his arrest;  however, the documents' admission was subject to a limiting instruction that the evidence could be considered only as to Gerson.   Gerson's trial counsel objected on the ground of inadequate authentication.21  The trial court overruled the objection, finding the document sufficiently authenticated by its contents pursuant to Evidence Code section 1421, which provides:  “A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.”  (Evid.Code, § 1421.)   Among other things, the trial court noted that the letter contained information that would be likely within Gerson's unique knowledge.   Moreover, the document was self-authenticating:  its signature was Gerson's gang moniker;  its addressee was Gerson's girlfriend;  it referred to a court date on the underlying prosecution;  and it was addressed to the residence where Gerson and Ascencio lived.

Authentication of a writing is required before it may be received into evidence and before secondary evidence of its contents may be received into evidence.  (Evid.Code, § 1401.)  “ ‘Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.’   (Evid.Code, § 1400.)”  (People v. Miller (2000) 81 Cal.App.4th 1427, 1445.)

Gerson asserts the prosecution failed to meet its burden of definitively establishing that he wrote the letter himself.   In so doing, Gerson mistakes the proper legal standard for admission.   The proponent need not demonstrate the document's authenticity beyond all doubt.   Moreover, “Evidence Code section 1421 uses the word ‘author’ and not the word ‘writer.’   Accordingly, it is not necessary for purposes of authentication of a writing that the writing be physically created by the author's hand.”  (People v. Lynn (1984) 159 Cal.App.3d 715, 736, fn. 10.)   Rather, the circumstances and contents of the writing itself may serve to authenticate it as being authorized by a particular individual.  (Id. at pp. 735-736.)  “The law is clear that the various means of authentication as set forth in Evidence Code sections 1410-1421 are not exclusive.   Circumstantial evidence, content and location are all valid means of authentication [citations].”  (People v. Gibson (2001) 90 Cal.App.4th 371, 383;  People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373.)   The party seeking to introduce the document has the burden of establishing its authenticity.  (Evid.Code, § 403, subd. (a)(3).)  “The decision whether the foundational evidence is sufficiently substantial is a matter within the court's discretion.  (Alvarado v. Anderson (1959) 175 Cal.App.2d 166, 178;  see also People v. Rowland (1992) 4 Cal.4th 238, 264 [admission of evidence challenged on relevancy grounds reviewed for abuse of discretion].)”  (People v. Lucas (1995) 12 Cal.4th 415, 466.)

Gerson identifies nothing indicative of error, much less abuse of discretion, in the trial court's ruling.   In addition to the marks of authenticity noted by the trial court (none of which is challenged on appeal), the Attorney General points out, among other things, that the envelope's return address was consistent with Gerson's place of custody at the relevant time, and that the letter referred to Ascencio as being “also a suspect to the murder on Gundry.”   Accordingly the envelope and letter were self-authenticating and easily met the requirement that it would have been “unlikely” that the matters referenced in the writing would have been known to anyone other than the purported author.

Challenges to the Pattern Instructions Defining Principals to an Offense and Natural and Probably Consequences Liability

Gerson, Gomez, and Gonzalez raise various related claims concerning the interplay of the pattern instruction defining principals to a crime (CALJIC No. 3.00), which specified that each principal is “equally guilty,” and the pattern instruction defining the natural and probable consequences doctrine (CALJIC No. 3.02), which instructed that if a defendant aided and abetted the assault of Norman, the defendant would be subject to a finding of guilt as to second degree murder if the latter crime was found to be a “natural and probable” consequence of the assault.   All of defendants' contentions derive from the general principle that liability as an aider and abettor “is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea.”  (People v. McCoy (2001) 25 Cal.4th 1111, 1120 (McCoy ).)   Thus, “for murder, a defendant cannot be held vicariously liable for the mens rea of an accomplice.”  (People v. Concha (2009) 47 Cal.4th 653, 665 (Concha ).)

Primarily, defendants contend the “equally guilty” language in CALJIC No. 3.00 required the jury to impute the finding of premeditation and deliberation as to Spencer, as the direct perpetrator, to the other defendants, as aiders and abettors.   Stated another way, defendants argue the trial court's instructions prevented the jury from considering whether the aiders and abettors harbored a mental state less than that supporting first degree murder.   In supplemental briefing, Gonzalez (joined by Gerson) makes the related contention that the Supreme Court's recent decision in Concha, supra, supports the argument that the trial court prejudicially erred by failing to instruct the jury that a finding of first degree murder required a finding of willfulness, premeditation, and deliberation as to each defendant.   As we explain, the contention was forfeited because it was not raised below.   In any event, on the particular facts of this case, a clarifying or modifying instruction was not required, and there is no reasonable probability that defendants suffered prejudice by the challenged instructions.

Without objection or request for modification, the trial court instructed:  “Persons who are involved in committing a crime are referred to as principals in that crime.   Each principal, regardless of the extent or manner of participation is equally guilty.   Principals include:  [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime.”  (CALJIC No. 3.00, emphasis added.)   With regard to aiding and abetting liability, the court instructed without objection or request for modification that such derivative liability required a showing that the aider and abettor not only acted with the intent of facilitating the crime, but did so with knowledge of the perpetrator's unlawful purpose.  (CALJIC No. 3.01.)   As an alternative approach to finding defendants guilty of murder, the jury was instructed, without objection or modification request, that if a defendant aided and abetted the assault of Norman, the defendant would be subject to a finding of guilt as to Norman's murder if the latter crime was found to be a “natural and probable” consequence of the assault.

After defining the elements of murder (an unlawful killing with malice aforethought), the jury was instructed that “[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with malice aforethought is murder of the first degree,” but that if the evidence was insufficient to prove deliberation and premeditation, the crime would be second degree murder.   Based on Spencer's testimony as to the victim's conduct in inciting the confrontation, the jury was instructed on voluntary manslaughter based on “sudden quarrel or heat of passion.”   The trial court further instructed that if the jury found a defendant guilty of murder, it must make a separate determination as to whether the murder was of the first or second degree.   Moreover, pursuant to CALJIC No. 8.71, the jury was instructed:  “If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.” 22  The jury was told it could consider evidence of provocation as to its bearing on whether the defendant killed with or with deliberation and premeditation.   Finally, the jury was instructed that it must make a separate finding as to each defendant's guilt.

As is readily apparent, the instructions were correct on their face, as they required separate findings of premeditation and deliberation as to each defendant for purposes of first degree murder.   The problem is that they did not eliminate a potential ambiguity whereby the “equally guilty” language in CALJIC No. 3.00 could be used to avoid making those independent assessments.   In People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego ), the defendant raised the same basic argument asserted here, focusing on the “equally guilty” language in a closely analogous pattern instruction, Judicial Council of California Criminal Jury Instructions (2008-2009) CALCRIM No. 400, and arguing that it “required the jury to convict appellants of first degree murder as aiders and abettors regardless of their mental state, thereby eliminating the need for the jury to make factual determinations regarding appellants' intent, willfulness, deliberation and premeditation.” 23  (Samaniego, supra, at p. 1163.)   We agree with the Samaniego court that the pattern instruction “is generally an accurate statement of law,” but misleading in exceptional cases where the jury can find the codefendants acted with differing mental states.  (Ibid.) Therefore, because the instruction at issue on appeal was generally accurate and only potentially misleading, defendants were “obligated to request modification or clarification and, having failed to have done so, forfeited this contention.”   (Ibid.;  see also People v. Hillhouse (2002) 27 Cal.4th 469, 503;  People v. Hart (1999) 20 Cal.4th 546, 622.)

As an alternative basis for our ruling, we turn to the merits of defendants' related arguments.   Our Supreme Court made it clear in McCoy, supra, 25 Cal.4th 1111 that in cases involving accomplices charged with specific intent offenses, the jury must separately determine each codefendant's mental state.   (Id. at p. 1118;  Samaniego, supra, 172 Cal.App.4th at p. 1164.)   The McCoy court held that an aider and abettor can be guilty of a greater offense than the direct perpetrator.   In Samaniego, the court, by parity of reasoning, concluded that “an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state.”  (Samaniego, supra, at p. 1164.)   In light of the reasoning in Samaniego, we find CALJIC No. 3.00 was potentially misleading because the “equally guilty” language misdescribed “the prosecution's burden in proving the aider and abettor's guilt of first degree murder by eliminating its need to prove the aider and abettor's (1) intent, (2) willfulness, (3) premeditation and (4) deliberation, the mental states for murder.”  (Samaniego, supra, at p. 1165.)

We therefore must determine if the error was prejudicial.  “An instruction that omits or misdescribes an element of a charged offense violates the right to jury trial guaranteed by our federal Constitution, and the effect of this violation is measured against the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24.”  (People v. Williams (2001) 26 Cal.4th 779, 797.)  “Under that test, an appellate court may find the error harmless only if, after conducting a thorough review of the record, the court determines beyond a reasonable doubt that the jury verdict would have been the same absent the error.”  (Ibid., citing Neder v. United States (1999) 527 U.S. 1, 7-10.)

In reviewing the record as a whole, we find no reasonable possibility the jury relied on CALJIC Nos. 3.00 or 3.02, separately or in conjunction, to impute a finding of first degree murder to the aiders and abettors, rather than making separate determinations of each defendant's mental state.   First, at no point did the prosecution argue the “equally guilty” language could be used to impute one defendant's mental state to another.   Nor did the prosecution assert the natural and probable consequences doctrine could be used to short circuit the first degree murder determination.   Rather, the prosecution's primary theory was that defendants, as active participants in the fatal attack, acted willfully and with premeditation and deliberation in killing Norman.   When the prosecutor referred to the natural and probable consequences doctrine, it was in the context of arguing for second degree murder.

On the facts of this case, there was no need to resort to the aiding and abetting doctrine.   The undisputed evidence showed that this was a concerted, deadly attack in which the line between accomplice and direct perpetrator was all but impossible to draw and there was no evidentiary basis for distinguishing between defendants' levels of culpability.   As our Supreme Court has explained:  “When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.”  (McCoy, supra, 25 Cal.4th at p. 1120.)   The McCoy court offered an explanatory hypothetical with close parallels to the circumstances below-a hypothetical stabbing case, in which “one person might restrain the victim while the other does the stabbing.”  (Ibid.) In that situation, “both participants would be direct perpetrators as well as aiders and abettors of the other.   The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own.   It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role.”  (Ibid.)

Defendants fail to identify any fact in the record that would support a finding that the mental state of the three non-stabbers was different from Spencer's.   The only evidence of a mental state less than premeditation and deliberation came from Spencer's confession, in which he asserted Norman instigated the confrontation, made gang challenges, and assaulted Spencer.   To the extent Gerson, Gomez, and Gonzalez argued lack of premeditation and deliberation, it was merely by reliance on Spencer's statements as to Spencer's own mental state.   Thus, Gerson presented an alibi defense and argued, alternatively, that the prosecution failed to show that Spencer's mental state was anything greater than voluntary manslaughter.   The other defendants challenged the prosecution case on theories of misidentification.   As such, there was no evidence and no argument that the aiders and abettors acted with a different level of intent from that of the direct perpetrator.   The jury's finding of premeditation and deliberation as to Spencer made it clear the jury rejected his self-serving testimony as to provocation.   Moreover, in so doing, the jury necessarily rejected the argument that Spencer merely intended to engage in a beating.   Similarly, by finding that each defendant committed the murder for the purpose of benefitting the Eastside Longos, the jury found that all four defendants shared the same deadly motive.

Therefore, if the jury reached its verdicts under the theories and evidence actually presented, it would have necessarily either found each defendant independently acted with premeditation and deliberation, or applied the aiding and abetting instruction (CALJIC No. 3.01), which required findings that each aider and abettor not only acted with the intent of facilitating the murder, but did so with knowledge of the perpetrator's unlawful (murderous) purpose.   In either case, the jury would have complied with the rule in McCoy and Concha that, for purposes of murder, a defendant cannot be held vicariously liable for the mens rea of an accomplice.  (McCoy, supra, 25 Cal.4th at p. 1120;  Concha, supra, 47 Cal.4th at p. 665.)   Based on these considerations, there is no reason to think that eliminating the “equally guilty” language from CALJIC No. 3.00 and giving the jury the express option of finding the aiders and abettors guilty of something different from the perpetrator would have made any difference in this case.

Nevertheless, we must also consider defendants' argument that the instruction on natural and probable consequences liability, when read alongside CALJIC No. 3.00's “equally guilty” language, exacerbated the possibility of instructional error.   As defendants point out, it is as least an abstract possibility that the jury applied the natural and probable consequences doctrine to find the aiders and abettors guilty of (second degree) murder.   In so doing, the jury need only have found they shared the perpetrator's intent as to the target offense of assault.   Then, the argument proceeds, in taking the next step and assessing the presence of premeditation for purposes of determining the degree of murder, the jury might have used the “equally guilty” language of CALJIC No. 3.00 and assumed that Spencer's mental state must be applied to the other principals without any need of making an independent determination of each defendant's mental state.   Had that been the case-where the only finding as to the aiders and abettors' state of mind was that they shared the perpetrator's intent with regard to the assault-there may well have been error under the McCoy line of cases.

Once again, however, because any error would have been harmless beyond a reasonable doubt, we need not address the instructional requirements for finding first degree murder under the natural probable consequences doctrine.24  Despite the inclusion of an instruction on the natural and probable consequences doctrine, there is no reasonable probability the jury followed the hyper-technical chain of reasoning we have described to avoid making separate assessments of each defendant's mens rea.   Neither below nor on appeal did the aiders and abettors identify any evidence-or argue-that their mental states differed from Spencer's as the direct perpetrator.   This was not the kind of case in which the “equally guilty” language in CALJIC No. 3.00 would have been used to avoid making separate assessments as to each codefendant's mental state.   Bolstering that conclusion is the fact that the jury was not only instructed to make separate determinations of each defendant's guilt pursuant to CALJIC No. 17.00, but also admonished that if it found a defendant guilty of murder, it must make a separate determination as to whether the murder was of the first or second degree as to each defendant.   Finally, the verdict forms required a separate finding of degree as to each defendant.

During deliberations, the jury requested guidance as to whether CALJIC Nos. 3.00 and 3.01 applied to the assessment of whether the murder was in the first degree.   With defense counsels' approval, the court referred the jurors to CALJIC No. 17.31, which provided:  “The purpose of the court's instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict.   Whether some instructions apply will depend upon what you find to be the facts.   Disregard any instruction which applies to facts determined by you not to exist.   Do not conclude that because an instruction has been given I am expressing an opinion as to the facts.”

Contrary to defendants' assertion, the jury's question does not tend to show the jury was inclined to impute the perpetrator's mental state to the other defendants.   Instead, the question tends to show the jury was considering whether to assess defendants' guilt in terms of direct liability or as aiders and abettors.   As we have explained, because CALJIC No. 3.01 required the jury to find each aider and abettor shared the perpetrator's criminal intent, there is no substantial likelihood of McCoy error.   Significantly, the jury's question did not reference the natural and probable consequences instruction-and it was the potential interplay between that doctrine and the “equally guilty” language in CALJIC No. 3.00 that posed the only significant danger in this case.   The fact that defense counsel saw no need for any clarification or modification to the “equally guilty” language tends to confirm that neither the trial court nor the parties envisioned the likelihood that CALJIC No. 3.00 might be employed to avoid making factual determinations regarding each defendant's intent, willfulness, deliberation and premeditation.  (See Samaniego, supra, 172 Cal.App.4th at p. 1163.)   The salient point remains that this case was not tried on the theory that the beaters and stabber had different levels of culpability and there was no evidence to that effect.

In supplement briefing, Gonzalez argues that the recent decision of Concha, supra, 47 Cal.4th at page 666 requires the trial court to specially instruct that the jury must find each defendant “personally ․ acted willfully, deliberately, and with premeditation” in committing the murder.   In Concha, the codefendants attempted to kill their victim, but during the course of the non-fatal attack, the victim killed one of their accomplices.  Concha held that although it was permissible to allow the jury to “consider returning a verdict of first degree murder against defendants for the death of their accomplice under the provocative act doctrine, it appears that the trial court did err when instructing on first degree murder, as opposed to attempted murder, by not providing an instruction that explained that for a defendant to be found guilty of first degree murder, he personally has to have acted willfully, deliberately, and with premeditation when he committed the attempted murder.”  (Ibid., citing McCoy, supra, 25 Cal.4th at p. 1118.)

While it is unclear whether Concha 's holding extends beyond the context of provocative-act murder, it adds nothing to defendants' argument based on McCoy and Samaniego.   That is, Concha 's holding appears to be intended to integrate the newly recognized situation of a first degree murder arising out of a provocative act with the rule established in McCoy that “a defendant charged with murder or attempted murder can be held vicariously liable for the actus reus of an accomplice, but, for murder, a defendant cannot be held vicariously liable for the mens rea of an accomplice.”  (Concha, supra, 47 Cal.4th at p. 665, citing McCoy, supra, 25 Cal.4th at p. 1118.)   Accordingly, even assuming Concha applies to this case, the harmless error analysis we have already undertaken would be equally applicable to any error under Concha.

Finally, in another related argument, defendants contend the same supposed instructional error amounted to imposition of an unconstitutional mandatory presumption in violation of Sandstrom v. Montana (1979) 442 U.S. 510.   Gerson candidly admits that our Supreme Court has already rejected this constitutional claim.   In People v. Richardson (2008) 43 Cal.4th 959, 1021, our Supreme Court explained that “we have previously rejected the argument, advanced by defendant here, that the natural and probable consequences doctrine unconstitutionally presumes malice on the part of the aider and abettor.   (People v. Garrison (1989) 47 Cal.3d 746, 777-778;  People v. Bunyard (1988) 45 Cal.3d 1189, 1231-1232;  see also People v. Culuko (2000) 78 Cal.App.4th 307, 322[.] )”  (See also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107 [“To the extent Coffman contends that imposition of liability for murder on an aider and abettor under this doctrine violates due process by substituting a presumption for, or otherwise excusing, proof of the required mental state, she is mistaken.”].) We are bound by our Supreme Court's analysis of that line of cases.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Cumulative Error

Defendants argue that the cumulative effective of the trial errors requires reversal of the judgment.  “We disagree.   We have either rejected his claims or concluded any assumed error to be nonprejudicial on an individual basis.   The assumed errors are no more compelling when considered together.”  (People v. Avila (2006) 38 Cal.4th 491, 615.)

Gonzalez's Motion to Strike Prior Conviction

Gonzalez argues the trial court abused its discretion by denying his Romero motion to strike his prior strike convictions.   Our review of the record reveals no abuse of discretion.

Under section 1385, the trial court has discretion to strike a prior felony conviction allegation in furtherance of justice.  (Romero, supra, 13 Cal.4th at pp. 529-530.)   In order to do so, the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.”   (People v. Williams (1998) 17 Cal.4th 148, 161.)

A trial court must enter a statement of reasons in the minutes of the court when dismissing a prior conviction;  however, it is not required to “ ‘explain its decision not to exercise its power to dismiss or strike.’ ”  (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony ).)  “ ‘ “The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.  [Citation.]  In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’  (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez ), quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)”  (Carmony, supra, at pp. 376-377.)   We therefore review the trial court's decision to determine whether it is “so irrational or arbitrary that no reasonable person could agree with it.”  (Id. at p. 377.)

Gonzalez was charged with suffering a conviction on May 15, 2006, for the prior serious or violent felony of making a criminal threat in violation of section 422.   In a proceeding outside the presence of the jury, Gonzalez admitted the prior conviction for purposes of the three strikes law, having waived his constitutional trial rights.   Gonzalez made his Romero motion at the time of sentencing, arguing that the prior strike was committed when he was young (“roughly” 17 years old) 25 and that a sentence under the three strikes law would result in the imposition of a much lengthier sentence that those of his accomplices.   That disparity, according to Gonzalez, was unfair in light of the fact that he was not the stabber.   The prosecutor countered that the prior strike offense was not only serious (a threat against a police officer), but the conviction was within a year of the underlying murder offense and resulted in a term of probation, which was in place at the time he committed the murder.   The trial court denied the motion, citing the fact that Gonzalez committed the murder while on probation for the strike prior and the prior itself was not at all remote in time.   We note additionally that apart from Gonzalez's criminal threats conviction, his probation officer's reports listed two prior misdemeanor convictions for carrying a dirk or dagger and for grand theft, along with a sustained juvenile petition for burglary.

Gonzalez contends the trial court abused its discretion by denying the Romero motion by failing to give adequate weight to the factors of his relative youth, the fact that his strike was his first felony conviction-especially when combined with the fact that he was not the stabber, but would receive a sentence twice as long as Spencer's.   Not so.   It is hardly a mark of irrationality that Gonzalez received a lengthier sentence than his codefendants, since he was the only defendant subject to punishment for recidivism under the three strikes law.   Indeed, that is the very point of recidivist sentencing schemes.   Nor does his relative youth or prior criminal history place him in any way outside the spirit of the three strikes law.   Gonzalez's criminal behavior was clearly of increasing seriousness and showed little in the way of amenability to correction.   In sum, Gonzalez fails to show that he must be deemed outside the spirit of the three strikes law in any part.  (See, e.g., People v. Williams, supra, 17 Cal.4th at p. 163.)

Cruel and/or Unusual Punishment

Defendants contend their sentences were in violation of the California and federal constitutional proscriptions against cruel and unusual punishment.   As the Attorney General points out, however, the contention was forfeited as to Gerson, Gomez, and Spencer, who failed to raise it below.   As we explain, Gonzalez's argument fails on the merits, as do those of the others.

The United States Constitution prohibits the imposition of cruel and unusual punishment (U.S. Const., Eighth Amend.), and the California Constitution prohibits the imposition of cruel or unusual punishment (Cal. Const., art.   I, § 17).   Claims of cruel and/or unusual punishment not raised in the trial court are forfeited.  (People v. Norman (2003) 109 Cal.App.4th 221, 229;  People v. Kelley (1997) 52 Cal.App.4th 568, 583;  People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)   There were separate sentencing proceedings for each defendant, but only Gonzalez asserted his sentence violated the constitutional proscription against cruel and unusual punishment.   Gerson, Gomez, and Spencer therefore failed to preserve the claim for appeal.

In Ewing v. California (2003) 538 U.S. 11, 23 (Ewing ), the Supreme Court endorsed the approach originally set forth in Justice Kennedy's concurring opinion in Harmelin v. Michigan (1991) 501 U.S. 957, 996-1001-the Eighth Amendment does not require strict proportionality between crime and sentence.   Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime.  (Ewing, supra, 538 U.S. at p. 23, quoting Harmelin v. Michigan, supra, at p. 1001 (conc.opn.Kennedy, J.), citing Solem v. Helm (1983) 463 U.S. 277, 288.)   Under this state's Constitution, a punishment may violate article I, section 17 “if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch (1972) 8 Cal.3d 410, 424;  People v. Preciado (1981) 116 Cal.App.3d 409, 412.)  “An examination of the nature of the offense and of the offender, ‘ “with particular regard to the degree of danger both present to society” ’ is particularly relevant in determining this issue.”   (People v. Felix (2003) 108 Cal.App.4th 994, 1000.)  “Because choosing the appropriate penalty is a legislative weighing function involving the seriousness of the crime and policy factors, the courts should not intervene unless the prescribed punishment is out of proportion to the crime.   [Citation.]”  (Id. at pp. 999-1000.)

Gonzalez argues his sentence of 50 years to life (the statutorily mandated indeterminate term of 25 years to life for the first degree murder, doubled pursuant to the three strikes law) is grossly disproportionate to his level of responsibility in the underlying crime and with regard to the fact that his sentence was approximately twice as long as his codefendants'.   Both assertions are wholly mistaken.   This case involved a brutal, racially motivated gang murder.   The attack was vicious and one-sided.   Although it was Spencer who committed the stabbing, all four of the participants took active part in the contemporaneous fatal beating.   In a very realistic sense, the aiders and abettors' culpability was virtually indistinguishable from the direct perpetrator's because the stabbing was integral to the savage beating and motivated by shared gang and racial animus.   Gonzalez's lengthier sentence was the result of his being found guilty under this state's recidivist sentencing scheme.   As none of his accomplices were so situated, there can be no serious assertion of disproportionality.

Spencer asserts his sentence of 25 years to life is cruel and unusual because he was 15 years old at the time he committed the murder and, despite his being the stabber, his offense was “not particularly egregious” because the victim may have exchanged gang threats with him.   Gerson argues the mandatory term of 25 years to life for first degree murder under section 190 is unconstitutional because it fails to take into account each murderer's individual circumstances.   He also claims it was unconstitutional as applied to him because he was not the stabber, was only 16 years old at the time, and had no significant criminal history.26

We reject Spencer's attempt to minimize the enormity of the murder and his active participation in facilitating it.   As we explained, the murder of Norman was a concerted effort by all four defendants, but it was Spencer who inflicted the fatal wound.   Moreover, the jury entirely rejected his self-serving testimony as to provocation by the victim.   Gerson's arguments fair no better.   Although Gerson did not stab Norman, he helped surround the unarmed victim and took part in the beating.   Neither Gerson nor any of the aiders and abettors presented evidence as to a lesser degree of culpability from that of the direct perpetrator.

Defendants adduce no authority even remotely supportive of their contentions.   In Harmelin v. Michigan, supra, 501 U.S. at page 995, the federal high court rejected the contention the requirement that a capital sentence requires an individualized assessment of appropriateness should be extended to a sentence of life without the possibility of parole.   Directly contrary to Gerson's argument, the United States Supreme Court stated:  “There can be no serious contention ․ that a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’ ”  (Ibid.)

Moreover, it should be noted that a sentence of 40 years to life for multiple convictions, including attempted murder with a firearm, was held not to be excessive in People v. Villegas (2001) 92 Cal.App.4th 1217, 1230, even as to a defendant with no prior convictions.   The precedent of the federal Supreme Court is similarly unavailing to defendants.  (See, e.g., Ewing, supra, 538 U.S. at pp. 28-31 [finding sentence of 25 years to life for felony grand theft of three golf clubs, pursuant to the three strikes law, was not grossly disproportionate and thus did not violate Eighth Amendment's prohibition against cruel and unusual punishment];  Harmelin v. Michigan, supra, 501 U.S. 957 [plurality opinion, affirming first-time offender's life without the possibility of parole sentence for possession of 650 grams of cocaine];  Rummel v. Estelle (1980) 445 U.S. 263, 284-285 [affirming sentence of life with the possibility of parole under recidivism statute, based on Rummel's nonviolent predicate and triggering offenses].)

Sentencing Errors

Defendants contend, and the Attorney General concedes, that the trial court had no legal basis for imposing a $1,000 assessment under section 1464 and Government Code section 76000.   Section 1464, subdivision (a)(1) provides in pertinent part:  “[T]here shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses․”  Under the Government Code provision, “there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses․”  (Gov.Code, § 76000, subd. (a)(1).)   In this case, there was no qualifying fine, penalty, or forfeiture.   Accordingly, the judgment must be modified to eliminate imposition of the $1,000 assessment as to each defendant.

Gomez also points out that his abstract of judgment erroneously includes a two-year term for the gang enhancement, despite the trial court's stated decision to stay the enhancement.   The abstract of judgment must therefore be modified to reflect the trial court's stated intent.

With regard to presentence custody credits, the Attorney General argues the trial court miscalculated the number of actual days each defendant spent in custody.   Gonzalez, Spencer, and Gerson were credited with 689 days of actual custody.   Gomez was credited with 503 days of actual custody.   The Attorney General points out that Detective Evans testified that Gonzalez, Spencer, and Gerson were arrested on December 8, 2006, and Gomez was arrested on May 22 or 23, 2007.27  Defendants were sentenced on October 8, 2008.   In making its calculations, it appears the trial court mistakenly applied the date of the murder as the arrest date.   Applying the proper arrest date, Gonzalez, Spencer, and Gerson should be credited with 671 days of actual custody, and Gomez should be credited with 505 days of actual custody.

Gonzalez's Probation Revocation

As a result of the murder conviction, the trial court revoked Gonzalez's probation and sentenced him to consecutive eight month terms, each to run consecutive to the sentence on the murder case.   Gonzalez argues on appeal that the consecutive sentencing for making criminal threats and interfering with an executive officer runs afoul of section 654.   The Attorney General responds by arguing Gonzalez did not mention the probation violation matter in his notice of appeal, and it therefore is not properly before us.   The Attorney General also points out that the trial court improperly treated the indeterminate murder sentence as the principle term, and the two charges on the probation violation as subordinate terms, which is not authorized.

We need not resolve the section 654 issue or whether the probation violation is properly before us on appeal, as the Attorney General is correct that the sentence as imposed was not authorized.   When a defendant is sentenced to both indeterminate and determinate terms, the sentences must be calculated separately and the indeterminate sentence cannot serve as the principal term. (§§ 1170, 1170.1;  People v. Neely (2009) 176 Cal.App.4th 787, 797.)   As the matter must be remanded for sentencing in accordance with law on the probation violation, Gonzalez will be able to litigate the application of section 654 in the trial court.   The same is true for Gonzalez's contention that the trial court erred in failing to state reasons for ordering the sentences on the probation violation case to run consecutively.

Because the matter is being remanded for resentencing, we discuss the additional interrelated sentencing contentions.   We disagree with Gonzalez's claim that the trial court erred in imposing a restitution award of $10,000 as to the murder conviction and separate awards of $200 in the probation violation matter, all pursuant to sections 1202.4 and 1202.45.   According to Gonzalez, doing so resulted in the imposition of an award above the statutory limit of $10,000.

“Restitution fines under sections 1202.4, subdivision (b) and 1202.45 are limited to an amount of $10,000 each.  (People v. Rowland (1997) 51 Cal.App.4th 1745, 1752.)”  (People v. Ferris (2000) 82 Cal.App.4th 1272, 1276.)  “The provisions of both section 1202.4, subdivision (b) and section 1202.45 apply ‘[i]n every case where a person is convicted of a crime.’   (Italics added.)   Those statutes do not specify whether the phrase ‘every case’ means every separately charged and numbered case or every jointly tried case.”  (People v. Ferris, supra, at p. 1277.)   This is not a case, such as People v. Ferris, involving closely related cases or jointly tried cases, where the rule of lenity should apply.   Rather, this is a straightforward matter involving sentencing on two entirely different cases.   As such, we follow the reasoning in People v. Ramirez (1995) 39 Cal.App.4th 1369, which also involved separate restitution fines which together exceeded $10,000, for a probation violation case and the separate prosecution for the matter that constituted the probation violation.  (Id. at p. 1377 [“the restitution fines at issue were imposed in two separate cases and in neither case did the fine exceed the statutory maximum”].)

In a related contention, Gonzalez asserts it was improper to impose a $200 probation restitution fine at the time it found him in violation of probation, in addition to the $200 fine imposed at the time probation was originally imposed.   He is correct.  “There is no statutory authority justifying the second restitution fine because ․ the first restitution fine remained in force despite the revocation of probation.   Accordingly, since the trial court was without statutory authority to impose the second restitution fine, it must be stricken.”  (People v. Chambers (1998) 65 Cal.App.4th 819, 823.)   At the same time, however, as the Attorney General points out, the original $200 fine was due and payable at the time of revocation.   Therefore, unless it has already been paid, that fine is still outstanding.

Gonzalez is mistaken when he asserts it was error to impose a second section 1465.8 security fee of $20.   There were two convictions, which made him eligible for two such fees.   The abstract of judgment refers only to one such fee.   Thus, it is unclear whether there was error at the time of sentencing.   On remand, the court should impose the $20 security fee on each count.

Finally, the $20 assessment imposed under section 1462 and Government Code section 76000 was improper for the reasons we set forth ante in our discussion of sentencing related errors in connection with the murder case.28

DISPOSITION

The $1,000 assessments under Penal Code section 1464 and Government Code section 76000 are reversed as to each defendant.   As to Gomez, the abstract of judgment is ordered corrected to delete the two-year term for the gang enhancement and to reflect the stay of the enhancement imposed by the trial court.   The award of presentence credits for Gonzalez, Spencer, and Gerson are corrected to reflect 671 days of actual custody, and Gomez shall be credited with 505 days of actual custody.   The consecutive sentences imposed in Gonzalez's probation violation case, No. NA069374, are vacated, and the probation violation case is remanded for resentencing in accordance with Penal Code sections 1170 and 1170.1.   In all other respects, the judgments are affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

FOOTNOTES

FN1. We will refer to Spencer and Gerson Bazan by their first names in order to avoid confusion..  FN1. We will refer to Spencer and Gerson Bazan by their first names in order to avoid confusion.

FN2. All statutory references are to the Penal Code unless indicated otherwise..  FN2. All statutory references are to the Penal Code unless indicated otherwise.

FN3. Although Gomez and Gerson seek to join in all appellate claims that might accrue to their benefit, the evidence at issue in this claim was admitted solely against Gonzalez.   As neither Gomez nor Gerson makes any showing that jury disregarded the limiting instruction and considered the underlying evidence against them, we construe this claim as relating only to Gonzalez..  FN3. Although Gomez and Gerson seek to join in all appellate claims that might accrue to their benefit, the evidence at issue in this claim was admitted solely against Gonzalez.   As neither Gomez nor Gerson makes any showing that jury disregarded the limiting instruction and considered the underlying evidence against them, we construe this claim as relating only to Gonzalez.

FN4. Although Gomez and Gonzalez seek to join in all appellate claims that might accrue to their benefit, the evidence at issue in this claim was admitted solely against Gerson.   As neither Gomez nor Gonzalez makes any showing that jury disregarded the limiting instruction and considered the underlying evidence against them, we construe this claim as relating only to Gerson..  FN4. Although Gomez and Gonzalez seek to join in all appellate claims that might accrue to their benefit, the evidence at issue in this claim was admitted solely against Gerson.   As neither Gomez nor Gonzalez makes any showing that jury disregarded the limiting instruction and considered the underlying evidence against them, we construe this claim as relating only to Gerson.

FN5. Detective Malcolm Evans of the City of Long Beach Police Department testified that “Baby Insane is a clique of the Insane Crips criminal street gang.”   The gang is reputed to be violent..  FN5. Detective Malcolm Evans of the City of Long Beach Police Department testified that “Baby Insane is a clique of the Insane Crips criminal street gang.”   The gang is reputed to be violent.

FN6. Members of Baby Insane typically have “BIG,” “BABY,” or “B” on their red hats..  FN6. Members of Baby Insane typically have “BIG,” “BABY,” or “B” on their red hats.

FN7. Detective Evans testified that the question “where are you from” can mean a challenge to identify one's gang affiliation or a challenge to fight..  FN7. Detective Evans testified that the question “where are you from” can mean a challenge to identify one's gang affiliation or a challenge to fight.

FN8. The trial court instructed the jury that Castillo's testimony was being offered solely as to Gonzalez..  FN8. The trial court instructed the jury that Castillo's testimony was being offered solely as to Gonzalez.

FN9. This testimony was admitted solely against Gonzalez..  FN9. This testimony was admitted solely against Gonzalez.

FN10. Ramirez later received a threatening message on her “Myspace” page from Andrea..  FN10. Ramirez later received a threatening message on her “Myspace” page from Andrea.

FN11. Miranda v. Arizona (1966) 384 U.S. 436..  FN11. Miranda v. Arizona (1966) 384 U.S. 436.

FN12. Detective Carlos Grimaldo testified that Gomez admitted Eastside Longo membership, as did Spencer.   If a person yells out, “This is Baby Insane” in the streets, it is likely to be meant as a gang challenge..  FN12. Detective Carlos Grimaldo testified that Gomez admitted Eastside Longo membership, as did Spencer.   If a person yells out, “This is Baby Insane” in the streets, it is likely to be meant as a gang challenge.

FN13. This testimony was admitted only as to Gerson..  FN13. This testimony was admitted only as to Gerson.

FN14. The cross-admissibility of gang evidence is even stronger as to Spencer, who told the investigating officers that he and the victim exchanged rival gang threats before the stabbing occurred..  FN14. The cross-admissibility of gang evidence is even stronger as to Spencer, who told the investigating officers that he and the victim exchanged rival gang threats before the stabbing occurred.

FN15. Defendants preserved the challenge to these aspects of Detective Gutierrez's testimony by making (and joining) timely and specific objections at trial..  FN15. Defendants preserved the challenge to these aspects of Detective Gutierrez's testimony by making (and joining) timely and specific objections at trial.

FN16. Questioning by the defense established that Norman was dressed in a manner consistent with membership in a rival gang..  FN16. Questioning by the defense established that Norman was dressed in a manner consistent with membership in a rival gang.

FN17. As such, Gomez's alternative argument that his trial counsel rendered constitutionally ineffective assistance of counsel for failing to object to the Mexican Mafia testimony must fail under both the performance and prejudice aspects of the Sixth Amendment inquiry.  (See Strickland v. Washington (1984) 466 U.S. 668, 687-694;  Williams v. Taylor (2000) 529 U.S. 362, 390-391.).  FN17. As such, Gomez's alternative argument that his trial counsel rendered constitutionally ineffective assistance of counsel for failing to object to the Mexican Mafia testimony must fail under both the performance and prejudice aspects of the Sixth Amendment inquiry.  (See Strickland v. Washington (1984) 466 U.S. 668, 687-694;  Williams v. Taylor (2000) 529 U.S. 362, 390-391.)

FN18. The statement was admitted solely as to Spencer.   Apart from general statements that they seek to join all arguments by codefendants that might accrue to their benefit, no codefendant attempts to argue how this claim might do so..  FN18. The statement was admitted solely as to Spencer.   Apart from general statements that they seek to join all arguments by codefendants that might accrue to their benefit, no codefendant attempts to argue how this claim might do so.

FN19. Spencer argues that despite the lack of anything in the record that might prompt competent counsel to bring a suppression motion, we should review his claim directly.  (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [ineffective assistance of counsel claims are more properly decided on habeas review where the record requires additional development].).  FN19. Spencer argues that despite the lack of anything in the record that might prompt competent counsel to bring a suppression motion, we should review his claim directly.  (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [ineffective assistance of counsel claims are more properly decided on habeas review where the record requires additional development].)

FN20. In overruling the defense objections, the trial court found the testimony admissible as a hearsay exception (statement against penal interest).   However, because the statements were plainly admissible for a nonhearsay purpose, rather than for their truth, we need not address the court's stated reason for admission.  (See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 972 [setting forth the rule that a ruling or decision that is itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.   Rather, if the ruling is correct upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion].).  FN20. In overruling the defense objections, the trial court found the testimony admissible as a hearsay exception (statement against penal interest).   However, because the statements were plainly admissible for a nonhearsay purpose, rather than for their truth, we need not address the court's stated reason for admission.  (See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 972 [setting forth the rule that a ruling or decision that is itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.   Rather, if the ruling is correct upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion].)

FN21. To the extent Gerson attempts to argue on appeal that his objection on authentication grounds included an implicit hearsay objection, we agree with the Attorney General that Gerson forfeited any such claim by failing to interpose a timely and specific hearsay objection.  (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1130;  People v. Sisneros, supra, 174 Cal.App.4th at p. 154.).  FN21. To the extent Gerson attempts to argue on appeal that his objection on authentication grounds included an implicit hearsay objection, we agree with the Attorney General that Gerson forfeited any such claim by failing to interpose a timely and specific hearsay objection.  (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1130;  People v. Sisneros, supra, 174 Cal.App.4th at p. 154.)

FN22. Pursuant to CALJIC No. 8.74, the jury was further cautioned:  “Before you may return a verdict in this case, you must agree unanimously not only as to whether the defendant is guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of murder of the first degree or murder of the second degree or voluntary manslaughter.”.  FN22. Pursuant to CALJIC No. 8.74, the jury was further cautioned:  “Before you may return a verdict in this case, you must agree unanimously not only as to whether the defendant is guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of murder of the first degree or murder of the second degree or voluntary manslaughter.”

FN23. To the extent Gerson asserts that for purposes of liability for murder, his jury “was not required to make a finding that [he] intended more than to aid and abet the original assault,” he is mistaken.   As we have explained, his status as an aider and abettor required a finding that he shared Spencer's intent as to the murder or, under the natural and probable consequences doctrine, that the murder was an objectively foreseeable consequence of the assault.   The relevant issue is whether that instruction combined with CALJIC No. 3.00 prevented the jury from separately assessing whether the defendants who aided and abetted Spencer did so with a mental state less than required for first degree murder..  FN23. To the extent Gerson asserts that for purposes of liability for murder, his jury “was not required to make a finding that [he] intended more than to aid and abet the original assault,” he is mistaken.   As we have explained, his status as an aider and abettor required a finding that he shared Spencer's intent as to the murder or, under the natural and probable consequences doctrine, that the murder was an objectively foreseeable consequence of the assault.   The relevant issue is whether that instruction combined with CALJIC No. 3.00 prevented the jury from separately assessing whether the defendants who aided and abetted Spencer did so with a mental state less than required for first degree murder.

FN24. But see People v. Hart (2009) 176 Cal.App.4th 662, 668-673 [finding the trial court was obligated sua sponte in an attempted murder case to instruct the jury that it must determine whether premeditation and deliberation was the natural and probable consequence of the target crime, and the failure to do so was prejudicial under the Chapman test]..  FN24. But see People v. Hart (2009) 176 Cal.App.4th 662, 668-673 [finding the trial court was obligated sua sponte in an attempted murder case to instruct the jury that it must determine whether premeditation and deliberation was the natural and probable consequence of the target crime, and the failure to do so was prejudicial under the Chapman test].

FN25. According to the probation officer's reports, however, Gonzalez was born in 1986, making him approximately 20 years old at the time of his strike conviction and the commission of the underlying offense..  FN25. According to the probation officer's reports, however, Gonzalez was born in 1986, making him approximately 20 years old at the time of his strike conviction and the commission of the underlying offense.

FN26. Gomez merely joined the argument without making any specific contentions of his own..  FN26. Gomez merely joined the argument without making any specific contentions of his own.

FN27. At sentencing, without objection, the trial court accepted the prosecutor's representation that Gomez's arrest date was May 23, 2007.   Gonzalez asserts that the date of the murder was proper because the probation officer's report listed November 20, 2007 as the date of arrest.   According to Gonzalez the probation officer mistakenly entered 2007 for 2006.   As it is clear from the record that Gonzalez was not arrested on the day of the murder, there is no reason not to accept Detective Evans's unchallenged testimony..  FN27. At sentencing, without objection, the trial court accepted the prosecutor's representation that Gomez's arrest date was May 23, 2007.   Gonzalez asserts that the date of the murder was proper because the probation officer's report listed November 20, 2007 as the date of arrest.   According to Gonzalez the probation officer mistakenly entered 2007 for 2006.   As it is clear from the record that Gonzalez was not arrested on the day of the murder, there is no reason not to accept Detective Evans's unchallenged testimony.

FN28. Although the trial court imposed such an assessment at the time of sentencing on the probation revocation matter, there is such listing in the abstract of judgment..  FN28. Although the trial court imposed such an assessment at the time of sentencing on the probation revocation matter, there is such listing in the abstract of judgment.

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