THE PEOPLE v. ISAAC BROOKS MERAZ

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. ISAAC BROOKS MERAZ, Defendant and Appellant.

F060411

Decided: June 30, 2011

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONINTRODUCTION

Shortly after midnight on August 23, 2003, Jose Landin, who was a Surenos gang member, was sitting in a car with some friends, four of whom were also Surenos gang members.   Appellant Isaac Brooks Meraz, who was a Nortenos gang member, walked up to the car, called the people inside “scraps” 1 and fatally shot Landin.

Appellant was convicted after jury trial of first degree murder (count 1);  a gang murder special circumstance allegation, as well as enhancement allegations attached to count 1 for gang benefit, personal discharge of a firearm causing death and personal use of a firearm were found true.  (Pen.Code, §§ 187, 190.2, subd. (a)(22), 186.22, subd. (b)(4), 12022.53, subd. (d), 12022.5, subd. (a)(1).) 2  One prior strike allegation was found true. (§ 1170.12.) Also, appellant was convicted of shooting at an occupied motor vehicle (count 2), possessing a firearm by a person who has suffered a qualifying juvenile adjudication (count 3) and carrying a loaded firearm in a public place by an active participant in a gang (count 4). (§§ 246, 12021, subd. (e), 12031, subd. (a)(2)(C).)  Enhancement allegations attached to count 2 for gang benefit and firearm use were found true. (§§ 186.22, subd. (b)(4), 12022.53, subd. (d).)  Appellant was sentenced on count 1 to life imprisonment without the possibility of parole plus a consecutive term of 25–years–to–life.   He was sentenced on count 3 to a concurrent four-year term.   Imposition of punishment for counts 2 and 4 was stayed pursuant to section 654.3

Appellant raises five issues:  (1) the gang enhancements, special circumstance and count 4 are not supported by substantial evidence because the primary activities element was not adequately proven;  (2) allowing the defense's gang expert to be cross-examined with a notation contained on a jail record was prejudicial error;  (3) CALCRIM No. 1403 improperly allowed the jury to consider appellant's gang association when evaluating his credibility;  (4) imposition of punishment for count 3 must be stayed pursuant to section 654;  and (5) direct victim restitution should not have been awarded to an insurance company.   Respondent concedes the insurance company was not legally entitled to restitution and we accept this concession as properly made.   The rest of appellant's arguments are unpersuasive.   We will reverse the restitution order and remand for a new restitution hearing.   In all other respects, the judgment will be affirmed.

FACTS

Shortly after midnight on August 23, 2003, Landin was driving a Honda Civic in which Crystal Fischer–Baird, Tabitha Price and fellow Surenos gang members 4 Santiago Nava, Victor Magana, Christian Magana and George Landin were passengers.   Landin made his Surenos gang affiliation obvious by wearing a blue jersey with the letters “SS” and the word “Sur” on it.   Landin pulled into the drive-thru lane of a Jack in the Box restaurant located on Mooney Boulevard in Visalia and waited behind several other cars.   Suddenly, appellant, who was a Nortenos gang member, walked up to the passenger side of the Honda.5  Appellant said, “You're a bunch of scraps” or “fucking scraps.” 6  He drew a handgun from his waistband and fired four shots through the open passenger window.   Three bullets struck Landin, who bled to death from a gunshot wound to the neck.   Appellant ran away towards some parked cars and was seen leaving with others in a car.

Accompanied by at least two other people, appellant drove to the trailer where Brandi Shipman and Leah Janeen Probasco lived.   Appellant knocked on the door and asked Shipman if he and his companions could come inside.   Shipman only allowed appellant to enter the trailer where David Tobias Hall and several other people were relaxing.7

Appellant and Probasco went into the bedroom.   Probasco testified that appellant appeared anxious and nervous.   Appellant muttered “to himself that he messed up, he did something bad, and he needed to use the phone.”   Probasco borrowed someone's cell phone for him to use.   Then appellant changed into some men's clothing that belonged to one of her friends.   Appellant left his clothes on the bedroom floor.8

During the homicide investigation, Probasco told Detective Steve Shear of the Visalia Police Department Violent Crimes Unit (the investigating detective) that appellant “said that there was a shooting there and somebody was killed, and that he had had to take care of some—the person, and that's what he did.”   Also, she told the detective that appellant said “the person had to be taken care of, and he took care of it.”

Shipman testified that she entered the bedroom and saw appellant using a red rag to wipe down a gun.9  Appellant was crying.   He said that he “thought he messed up” because he “got one of his own,” meaning a “Northerner.”   Shipman testified that appellant asked her to take the gun.   She grabbed a pillowcase and held it out to him.   Appellant dropped the gun into it.   Shipman took the pillowcase outside and buried it under a pile of leaves and weeds in the yard.

During the homicide investigation, Shipman recounted to the investigating detective additional statements made by appellant.   Shipman told the detective that appellant said, “I shot, I shot some guy.   I shot him, I just ran up on him and shot him.”   Appellant said, “I know I killed him;  I seen his brains.”   Shipman also told the detective that appellant said, “I fucked up bad.   I think, I think, I know I killed him.   I know I killed him.”   Appellant said “he thought he shot one of his own.   He thought he shot, he said they looked like scrap, but he wasn't for sure.”   Shipman said that appellant was worried the person he shot “was a Northerner.   He thought he could have been a Northerner, but he looked like a scrap.”

Hall testified he went inside the bedroom.   Appellant was lying on the bed and Shipman was sitting beside him.   Hall urged appellant to change his clothes.   Hall testified he arranged for appellant to be “expedited to a different location.”   Someone told Hall that the gun “was somewhere in the vicinity.”   Hall was concerned that if the police discovered the gun near the trailer, it would cause a problem and the trailer would no longer be “a cool little place for us to kickback at.”   So just after sunrise, Hall searched for and found the gun, which he described as a nine-millimeter semiautomatic Korean issue gun.   Hall hid the gun behind a dumpster.

Hall was arrested about four or five hours later for unrelated charges.   In consideration for leniency, Hall told the arresting officers that he had information concerning a possible murder weapon.   Hall directed the detective to a handgun inside a pillowcase located behind a dumpster.   The gun was inside a pillowcase behind a dumpster.   Ballistics analysis showed that four spent casings found at the crime scene and two expended bullets recovered from Landin's body were fired from this handgun.

Meanwhile, Shipman left the trailer for a few hours.   When Shipman returned, Probasco told her that she had been interviewed by police officers.   Shipman convinced Probasco to call appellant and arrange to meet with them.   Shipman testified that she and Probasco met with appellant and Gilbert Baldivez that evening.   Appellant asked Shipman “where the gun was[?]”  Shipman did not want appellant to be angry with her so she lied and told him, “It's at the house.   I had it.”   Appellant told Shipman that she needed “to watch” Probasco because “[s]he's a rat.”

During the homicide investigation, Shipman told the investigating detective that two Hispanic men accompanied appellant to the meeting.   Shipman told the detective that during this meeting appellant said, “․ [T]hey know they're on to us,” and, “They know I did it.”   Appellant said “he had to take off to Mexico.”   Appellant said to his companions, “Whoever witnessed what happened needs to be handled” because “the witnesses are the ones that are going to put me away.”

On the next day, appellant gathered his belongings and left for Mexico.   But he was arrested before he reached the border.

The People also presented evidence of a prior encounter involving Landin and appellant.   Francisco Najera, who described himself as a lifelong friend of Landin, testified that sometime in 2002 he was out with Landin and Thomas Gray. They became involved in a conflict involving a group of people that included appellant.   Landin eventually arranged for a one-on-one fist fight to settle the dispute.   Najera and appellant fought each other on behalf of their respective groups.   Najera was a “cage fighter” and he won the fight by knocking appellant to the ground.10

Appellant testified on his own behalf.   He denied shooting Landin.   Appellant said on the night of the shooting, he accepted an invitation to go cruising with three young Hispanic men in a Chevrolet Blazer.   The man who extended the invitation said he was a friend of appellant's younger brother.   A man who appellant heard other people call “Manuel” sat in the front passenger seat.   Appellant testified that when the Blazer passed by the Jack in the Box, Manuel “pointed towards the Jack in the Box, and he said something to the effect of ‘There goes those mother fuckers from earlier.’ ”   Appellant testified that the driver parked the Blazer near the Jack in the Box so the man who was sitting next to appellant in the back seat could finish smoking a marijuana joint.   Everyone got out of the vehicle.   Appellant walked to the back of a nearby store to relieve himself.   Manuel walked towards the Jack in the Box. Everyone else stayed by the vehicle “listening to the music, smoking and drinking.”   When appellant returned to the Blazer, he asked, “Where is Manuel going?”   The driver replied, “He's going to the Jack in the Box. You can go, too, if you want, but we're going to be going over there in a couple of minutes.”   About four or five minutes later, appellant heard gun shots.   Manuel ran back to the Blazer and told everyone to get in the car and leave.   Appellant got into the Blazer with the rest of the group and they drove away.   Appellant testified “Manuel said that he just got done blowing the mother fucker's brain's out.”   Appellant was afraid he would be apprehended with the culprits and directed the group to the trailer because he was scared and thought it would be a safe place.

Appellant testified that when the group reached the trailer, he asked Shipman to let them “kickback here” because “we need to get off the road.”   Shipman told appellant that he alone could remain.   When appellant told the group they could not stay, Manuel pulled out a gun from his pocket and said, “Hey, bro, we can't be driving around with this.”   Then Manuel said, “Hold on to it for me.   I'll try to get it back from you tomorrow morning.”   Appellant took the gun and put it in his pocket.   Appellant said he asked Shipman “if she can put [the gun] away because I don't want to be holding on to it.”   Shipman took the gun from him, put it inside a pillowcase, and took it out of the bedroom.   Appellant testified that he told Probasco and Shipman “[t]here was a shooting at Jack in the Box and somebody ended up getting killed.”   Probasco asked appellant, “Why?” Appellant testified that he answered, “Some shit.   All I can say some shit went down at the Jack in the Box, and somebody had to get handled.”   Appellant changed his clothes and someone drove him back to the Econo Lodge where he was staying for the weekend.   Appellant said he fled to Mexico because he feared being wrongly charged or being killed by the real murderer.

DISCUSSION

I.  The Gang Enhancements, Special Circumstance and Count 3 are Supported by Substantial Evidence.

A. Facts.

Visalia Police Officer Luma Fahoum gave expert gang testimony for the People.   She testified about the history and identifying symbols of the Nortenos criminal street gang.11  Their main rival is “the southerners, or the Surenos, which identify with the color blue and 13.”   There are “roughly 1500” Norteno gang members in Tulare County.   She testified the “Norteno criminal street gang is comprised of predominately Hispanic males, some females.   They identify with the color red for north, Number 14 for the letter N in the alphabet, again for north.”   Norteno related graffiti is usually red and includes “Roman numeral X4, four dots, 14, the Number 4, ‘north’ or ‘Norte,’ you'll find the letters S crossed out like a dollar sign to pay an insult to the rival gang ․ nicknames or monikers․”  When asked “what are the primary activities of northern criminal street gangs,” Officer Fahoum responded:  “[U]sually starts somewhere in the area of vandalism, theft, burglary, auto theft, moves up to drug sales, drive-by shootings, assault with deadly weapon, possession of a firearm, murder, attempt[ed] murder.”   Officer Fahoum testified about three predicate offenses committed by active Nortenos:  (1) an assault with a deadly weapon committed by appellant in August 1999; 12  (2) a drive-by shooting committed by Hector Mendoza in July 2001;  and (3) possession of methamphetamine for sale committed by Danial Nava in May 2003.

Officer Fahoum opined that appellant “was a Norteno gang member” on August 23, 2003.   Fahoum based this opinion on appellant's custodial admissions, association with known Nortenos, gang writings, gang tattoos, and documented gang related activities.   Officer Fahoum testified appellant has, inter alia, an “X4” tattoo, a “Norteno” tattoo, and a “GMK Goshen” tattoo.13  Fahoum testified that the records she reviewed showed that in April 1997, appellant's mother told a Tulare County deputy that appellant was involved in gang activity.   His mother gave the deputy a yearbook that had gang graffiti scribbled all over it.   At that time, a neighbor observed appellant graffiti “X4” on a stop sign.   Officer Fahoum explained that “X4 is 14 for north.”   The records also showed that in June 1997, appellant told a police officer that he fought with a bunch of southerners and said, “I kicked those scraps' ass.”   The records further showed that while appellant was incarcerated in a juvenile boot camp facility he smashed another boy's head into a cement wall because the boy refused to “roll with the Nortenos” or “carry out their order to assault” another juvenile.   Appellant subsequently was involved in two gang-related fights in this facility with Surenos gang members.   Also, appellant's admission records at the boot camp include a gang classification form in which appellant “circled that his gang was Norteno” and listed several Surenos subsets as his enemies.   Also, appellant classified himself as a Norteno when he entered the juvenile facility.   When appellant was arrested for the shooting, “he was classified with the north” and he is “still a validated Norteno in the jail.”

Based on a hypothetical, Officer Fahoum opined that the shooting would “assist the ongoing criminal activity of the northern street gang.”   She opined the shooting was gang related and that it “would benefit the gang in a lot of ways.”

During direct examination, Officer Fahoum was asked if she came into contact with GMK. She replied “GMK are the letters that stand for Goshen's Most Craziest.”   When asked if GMK is “connected with [the] northern sector of the criminal street gang,” Officer Fahoum replied, “They are.   They affiliate with the north, yes.”   During discussion of appellant's tattoos, Officer Fahoum testified, “[w]e already discussed that [appellant] identified with GMK.”

During cross-examination, defense counsel asked Officer Fahoum what she knew about the history of GMK. She replied:  “The history is very weak.   I can't tell you a lot about it.   I've spoken to deputies who work the Goshen area, lieutenants from the sheriff's department.   There are a few people who identify with GMK. However, all—all few of those people are northerners.   They identify with red and 14.   And Goshen is small.   There is only some 50 northerners, maybe.   So very few of that few number identity with GMK.” Defense counsel asked, “Is GMK considered a criminal street gang?”   Officer Fahoum replied, “Nortenos are.   GMK is just a identifier, a set of the Nortenos.   Anybody you contact that's GMK is north out of Goshen.”   Defense counsel asked, “Anybody that claims north is a Norteno?”   The officer replied, “That's correct.”   Defense counsel asked, “Anybody that's a Norteno is a criminal street gang member?”   The officer answered, “If you're validated, yes.”   Then defense counsel asked, “[Do] you know what GMK originally was?”   Officer Fahoum replied, “I have no idea.”   During recross-examination, defense counsel asked if cliques that identify only with their area and do not have a history of committing crimes are tied into the umbrella gang such as the Nortenos, the Crips or the Bloods “[b]ecause of the color or what they claim, does that make their little neighborhood group a criminal street gang?”   Officer Fahoum replied, “No,” and agreed with defense counsel's statement that “each little group has to be assessed for their criminal involvement.”

At the close of the People's case, appellant moved for acquittal on the gang allegations.   Following hearing, the motion was denied.

The defense's gang expert, Albert Ochoa, testified that, based on interviews with appellant, he felt that appellant was a gang “associate, if anything, but I couldn't see any hardness in him.”   Ochoa opined that the shooting was not gang related.   Ochoa testified that he had not heard of GMK before reading the police reports about the shooting.   Appellant and a gang member who was “very familiar with [the] Goshen area” told him that GMK was a tagging crew.   On cross-examination, Ochoa acknowledged that appellant's youth authority intake form contained 12 different options for possible gang affiliation.   In addition to fields for “Norteno, Sureno, Pacific Islander, Bulldog, white, [and] white independent gangs,” it also had “an area to check for tagger.”   On appellant's form, Norteno was selected;  “tagger” was not chosen.

During appellant's testimony, he denied being a Norteno.   He testified that he was never a gang member.   Appellant testified he was “raised in a northern neighborhood,” but “[he] wasn't part of a gang.”   Appellant admitted being a member of GMK when he first went into the juvenile hall system, but testified that it was a “tagging crew.”

B. The statutory elements and standard of review are undisputed.

To support the gang allegations, special circumstance and count 4, the People were required to prove that appellant was an active participant in a criminal street gang when he shot and killed Landin.  “Criminal street gang” is “defined specifically, and its application requires proof of multiple elements.”  (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000.)   A “criminal street gang” is defined as (1) any ongoing group of three or more persons;  (2) having as one of its primary activities the commission of one or more specified crimes;  (3) which has a common identifying sign or symbol;  and (4) whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. (§ 186.22, subd. (f).)  The phrase “pattern of criminal gang activity” is defined as “ ‘the commission, attempted commission, or solicitation of two or more of the [eight specified crimes], provided at least one of those offenses occurred after [September 23, 1988] and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons ․‘ (§ 186.22, subd. (e).)”  (In re Nathaniel C., supra, 228 Cal.App.3d at pp. 1000–1001.)

“We utilize the substantial evidence test to determine whether the prosecution has introduced sufficient evidence to meet its burden of proof beyond a reasonable doubt.”  (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)   This standard “ ‘applies both when an appellate court is reviewing on appeal the sufficiency of the evidence to support a conviction and when a trial court is deciding the same issue in the context of a motion for acquittal under Penal Code section 1181.1 at the close of evidence.’  [Citations.]”  (Ibid.) In applying the substantial evidence standard “we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt.  [Citation.]  We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”  (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)

C. The People proved that appellant was an active participant in the Nortenos gang.

At the outset, we must determine whether the Nortenos or GMK is the applicable “criminal street gang.”   Appellant asserts he “belonged to the GMK gang, which was oriented toward the northern (Norteno) geographic grouping of Hispanic gangs.”   Based on this premise, appellant argues the People were required to prove either that GMK itself was a criminal street gang or to establish “some sort of collaborative activities or collective organizational structure” linking GMK to the Nortenos “so that the various groups reasonably can be viewed as parts of the same overall organization.”  (People v. Williams (2008) 167 Cal.App.4th 983, 988 (Williams ).)   This argument fails because appellant's foundational premise is flawed.   Appellant has erred on appeal by converting his trial defense into a proven fact.   Appellant's trial defense was that he was not a member of the Nortenos, just a former member of GMK, which was merely a local tagging crew.   Yet, the record also shows that the People affirmatively proved that appellant was a member of the Nortenos, which is a criminal street gang.   Therefore, the relevant gang on appeal is the Nortenos.14

There is ample evidence in the record proving that appellant was a member of the Nortenos criminal street gang.   This proof directly connected appellant to the Nortenos and not simply to GMK. Officer Fahoum opined that appellant was a Norteno gang member based on his custodial admissions, association with other Nortenos, gang writings, tattoos, and documented gang activities.   Officer Fahoum's opinion that appellant was an active member of the Nortenos has ample evidentiary support.   Appellant identified himself as a Norteno in his oral statements, and by his actions both in and out of custody (i.e., assaulting a juvenile because he wouldn't “roll with the Nortenos” and fighting with Surenos gang members).   Appellant has the word “Norteno” tattooed on his stomach.   Appellant was classified as a Norteno in juvenile and adult detention facilities and has safely lived in areas assigned for Nortenos.   We find the proof that appellant was an active Norteno when he shot Landin to be compelling—it meets and exceeds the quantum of proof necessary to constitute substantial evidence.

Unlike People v. Williams, supra, 167 Cal.App.4th 983, which is relied upon by appellant, the evidence in this case directly linked appellant to the larger umbrella gang, not exclusively to the local clique or subset.   There was no bootstrapping in this case—the People proved that appellant was a Norteno.   The People's gang expert opined that appellant was a Norteno;  she did not opine that appellant was a member of the GMK and the GMK were aligned with the Nortenos so appellant necessarily was a Norteno by virtue of his membership in GMK. Officer Fahoum's testimony about GMK, which is extensively quoted by appellant in his briefs, was elicited by defense counsel on cross-examination.   The prosecutor focused on appellant's ties to the Nortenos, not his connection to GMK. It is readily apparent that defense counsel's questions on this topic were part of his strategy to provide an alternative interpretation for the People's gang evidence, i.e., that appellant falsely identified himself as a Norteno for protection but really was just a former member of GMK, which was a local tagging crew.   Appellant demonstrated his membership in the Nortenos by his actions.   While appellant was in a juvenile facility, away from the Goshen area, he slammed a juvenile's head into a cement wall because that juvenile would not “roll with the Nortenos.”   Also, appellant indicated that he was a Norteno on correctional facility records;  he did not indicate that he was a member of GMK or that he belonged to a tagging crew.   Unlike the local clique of Peckerwoods and the umbrella Peckerwoods gang which were at issue in Williams, the Nortenos and GMK do not share the same name so misidentification was not likely.   Thus, Williams is legally and factually distinguishable.

Since the People proved appellant's membership in the Nortenos, they were not required to prove the existence of a collective organizational structure between GMK and the Nortenos, or to establish that GMK was itself a criminal street gang.   Appellant was directly linked to the larger Nortenos gang as a member of this group.   On appeal, we must assess the sufficiency of the evidence proving that the Nortenos constituted a criminal street gang.

D. The primary activities element was adequately proven.

1. Facts.

During Officer Fahoum's testimony, the prosecutor asked her what the primary activities of the Nortenos were.   She replied:  “Oh, well, usually starts somewhere in the area of vandalism, theft, burglary, auto theft, moves up to drug sales, drive-by shootings, assault with deadly weapon, possession of a firearm, murder, attempt[ed] murder.”   Then the prosecutor asked, “Shooting at occupied dwellings and cars?”   Officer Fahoum responded, “Drive-by shooting, right, yeah.”   Then he asked, “Now, have you yourself been involved in investigating those types of crimes suspected to have been conducted by the Norteno criminal street gang?”   Officer Fahoum responded, “All of them.”   The prosecutor subsequently elicited testimony about specific crimes committed by Norteno gang members:  the 1999 assault appellant committed, a 2001 shooting at an inhabited dwelling committed by Hector Mendoza and a 2003 possession of methamphetamine for sale committed by Daniel Nava. Then the prosecutor asked, “How do those crimes, assault with a deadly weapon, shooting at an inhabited dwelling, and transportation of sales of methamphetamine ․ fit into a pattern of criminal street gang activity?”   Officer Fahoum replied, “Well, those are all primary activities of a criminal street gang, selling drugs, drive-by shootings, assault with a deadly weapon.   That's what street gangs do.   They're involved in illegitimate activities.” 15  Finally, the prosecutor asked if “the commission of those violent crimes benefit[ted] the individual gang member and/or the gang as a whole?”   Officer Fahoum replied that it benefits the individual by bolstering his status within the gang and it benefits the gang by “mak[ing] them a feared bunch of individuals.   It prevents witnesses from coming forward to cooperate with law enforcement.”

2. There is substantial evidence supporting the primary activities element.

Having determined that the Nortenos is the relevant gang for purposes of the gang-related special allegations and substantive charge, we may now consider appellant's various challenges to the sufficiency of the evidence supporting the primary activities element.

“․ The primary activities element may be proven by expert testimony that the criminal street gang ‘was primarily engaged in ․ statutorily enumerated felonies.  [Citation.]’  [Citation.]”  (People v. Cabrera (2010) 191 Cal.App.4th 276, 282.)   The trier of fact may look to both the past and present criminal activities of the gang.   A group's primary activities can be shown through evidence of past or present examples of the group's members consistently and repeatedly having committed the criminal conduct listed in the statute.  (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)

Appellant argues the primary activities element was not proved because Officer Fahoum testified the Nortenos gang's primary activities “tended to evolve” and she “never testified whether the primary activities of the Norteno gang had evolved to the more serious crimes as of ․ August 2003.”  [Italics omitted.]   We are not persuaded.   Officer Fahoum testified that the Nortenos' primary activities include the commission of numerous crimes with varying levels of seriousness.   Officer Fahoum chose to list the crimes from least serious to most serious.   Officer Fahoum was not expressing an evolutionary view of the Nortenos' primary activities.   Rather, she was listing the primary activities of Nortenos from the least serious crime to most serious crime.

Our interpretation of Officer Fahoum's testimony is supported by the officer's phrase “moves up to” in her answer listing the crimes that constitutes the Nortenos' primary activity.   Also, it is consistent with the officer's other testimony on the topic of the Nortenos's primary activities.   Officer Fahoum explained that the various crimes benefit the gang in different ways.   Drug sales generate revenue.   Drive-by shootings punish rival gangs and people who disrespect the gang.   Firearm possession allows gang members to protect themselves and assault rivals.   Later, Officer Fahoum testified that individual gang members “start at an entry level and they escalate.”   There is a “hierarchy to some degree.”   Thus, the primary activities of the Nortenos do not evolve.   Rather, it is the gang member's participation in the various criminal activities that escalates over time from less serious to more serious.   Gang members may initially participate in the Nortenos criminal activities by committing acts of vandalism, then by stealing a car or selling drugs, and finally by participating in a drive-by shooting or committing a murder.   Indeed, appellant's criminal history seems to have followed such a path from graffiting “X4” on a sign, to assaulting a boy because he wouldn't “roll with the Nortenos,” and fighting with Surenos, to fatally shooting a Sureno.   Accordingly, we reject appellant's assertion that Officer Fahoum testified the Nortenos gang had a temporally evolving set of primary activities.   Reasonably understood, Officer Fahoum testified the Nortenos' primary activities were the commission of offenses ranging from relatively trivial crimes such as vandalism to serious statutorily enumerated crimes of drive-by shootings and murder.

We also reject appellant's related assertion that Officer's Fahoum's answer was not reasonably certain because she uttered the phrase “usually starts somewhere in the area of” before listing the various crimes that constitute the Nortenos's primary activities.   Appellant has erroneously isolated one phrase from the entirety of the expert's testimony on this topic.   The expert was not qualifying her listing of the crimes constituting the Nortenos' primary activities.   She was merely indicating that these activities begin at the least serious end of the continuum with offenses that are relatively trivial, such as vandalism.

Relying on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), appellant next argues that Officer Fahoum's “opinion had no value because she never explained how she came to her conclusion.”   Again, we are not convinced.   In Alexander L., the reviewing court specifically noted that defense counsel interposed a foundational objection to the expert's response to the prosecutor's sole question on the topic of the gang's primary activities and made a motion to strike the testimony, writing the objection should have been sustained and the motion to strike the testimony granted.  (Id. at p. 612, fn. 4.) In this case, appellant did not object on this ground at trial.   Therefore, to the extent appellant is asserting a foundational objection to the admissibility of Officer Fahoum's testimony, the point was forfeited.   (Evid.Code, § 353, subd. (a);  People v. Dorsey, supra, 43 Cal.App.3d at p. 959;  People v. Price (1991) 1 Cal.4th 324, 429–430.)

Appellant's contention that Officer Fahoum's testimony is not entitled to any evidentiary weight is not subject to the waiver rule.  (See, e.g, People v. Price, supra, 1 Cal.4th at p. 430.)   This argument fails because the prosecutor elicited from Officer Fahoum testimony about the many ways she developed knowledge about the Nortenos:  by attending hundreds of hours of training on gangs, working in the gang unit for approximately six and a half years, contacting several hundred gang members, reading reports written by other officers regarding crimes committed by gang members, and being involved in the entries of approximately 1,000 gang-related residences.   Officer Fahoum's testimony falls squarely within the type of testimony found adequate in People v. Gardeley (1996) 14 Cal.4th 605, 617, to satisfy the primary activities requirement of section 186.22, subdivision (f).  Officer Fahoum listed the specific crimes that are the Nortenos' primary activities.   In contrast, the expert in Alexander L. never stated what the gang's primary activities were and did not supply a basis for his knowledge.  (Alexander L., supra, 149 Cal.App.4th at pp. 611–612.)

Next, appellant argues the record lacks proof that commission of qualifying crimes was the Nortenos' primary activity because Officer Fahoum testified there was “roughly 1500” Norteno gang members in Tulare County and the People presented evidence of only three specific predicate acts.   Once again, we are not persuaded.

Appellant cites People v. Perez (2004) 118 Cal.App.4th 151, in support of this argument.   There, the gang expert offered vague testimony about the primary activities of the CLB gang and “evidence of the retaliatory shooting of a few individuals over a period of less than a week, together with a beating over six years earlier.”  (Id. at p. 160.)   The appellate court held this evidence was not sufficient to establish the group's members consistently and repeatedly committed crimes listed in section 186.22.  (Perez, supra, at p. 160.)   Unlike Perez, in this case the People produced expert gang testimony specifically opining that the primary activities of the Nortenos included shooting at inhabited vehicles, assault, drug sales and murder.   Then it proffered testimony about predicate acts that were committed in 1999, 2001 and 2003 for assault, shooting at an inhabited dwelling and drug sales.   Appellant's current crimes in 2003 were further proof that the primary activities of the Nortenos were the commission of crimes specified in section 186.22 There was not a lengthy gap between the commission of the predicate acts and the charged crimes such as was present in Perez.   Rather, the evidence showed Norteno gang members consistently commit serious crimes enumerated in section 186.22 on a regular basis.

We therefore reject all of appellant's challenges to the sufficiency of the evidence proving the primary activities element.   Appellant has not challenged the adequacy of the evidence proving the other elements of the gang allegations, special circumstance and the substantive offense of being a gang member carrying a firearm.   We have independently reviewed the record in careful detail and conclude there are no evidentiary deficits.   Accordingly, we will uphold the gang allegations, gang special circumstance and count 4.

II.  Appellant was not Prejudiced by Cross-examination of Ochoa with a Notation Contained in a 2008 Jail Record.

A. Facts.

During cross-examination, Ochoa testified that appellant told him that he dropped out of gang activities in December 1999.   The prosecutor asked Ochoa if he verified appellant's statement in any way.   Ochoa responded that he looked for correctional facility records “that indicate any type of dropout documents of his dropout status and I didn't see any.”   Without defense objection, the prosecutor elicited testimony from Ochoa that appellant currently is housed with the Nortenos and appellant's jail classification “says that he's a northerner, an affiliate.”

Then the prosecutor asked Ochoa if he looked “at some recent jail log activities, some booking sheets, as recent as 2008 talking about his classification movement from different units.”   Ochoa responded in the affirmative.   The prosecutor asked Ochoa if it was true that some of appellant's booking records “as late as 2008” reflect that he “had to be moved to a different location because he's a shot caller.”   Ochoa replied that he did not “recall that one.”   The prosecutor asked Ochoa to define a “shot caller” and Ochoa replied that a “shot caller” is someone who “will, basically, dictate to a gang work they need to put in.”

At this point, defense counsel interposed an objection on the ground of “unreliable hearsay.”   The court ruled, “Well, if he looked at it in forming his opinion, it's—he can review anything to form his opinion.”

Thereafter, the prosecutor asked Ochoa to examine a 2008 jail intake form and elicited testimony that this form contained a notation “indicating that [appellant] was moved for being a shot caller.”   Ochoa acknowledged “that indication is inconsistent with someone being a dropout.”

The prosecutor then elicited testimony that appellant's juvenile record subsequent to 1999 continued to indicate that appellant was identified as a Norteno gang member and that there was no indication in any juvenile record that appellant dropped out of the gang.

On redirect examination, Ochoa responded affirmatively to defense counsel's query if the term “shot caller” was “a pretty significant term of art.”   Ochoa also responded in the affirmative to defense counsel's question, “Would there not have to be some pretty strong evidence that he would be a shot caller to classify him as such.”

After the jury returned its guilty verdicts, appellant motioned for a mistrial.   Defense counsel argued the “shot caller” notation was inadmissible hearsay and the prosecutor's examination of Ochoa concerning this notation was so prejudicial it deprived appellant of a fair trial.   He also asserted the relevant record was not timely produced because he received it on the day before Ochoa was scheduled to testify.   The court denied the motion, reasoning:

“ ․ I could if I was so inclined grant a mistrial or motion for a new trial.  [¶] The defendant also claims the late discovery of that ․ notation ․ also affected the defendant's ability to adequately prepare for that claim.   The defendant claims the evidence of gang involvement was so minimal that the claim he was a ․ ‘shot caller,’ ․ unduly prejudiced the case against the defendant.   I don't agree that the evidence of defendant's membership or association with a criminal street gang was minimal.  [¶] Just some of the issues or evidence raised to substantiate his membership or associate with a criminal street gang were his tattoos, self-admission, association with gang members or known gang members, self-declared gang members, defendant has gang-related incidents of gang violence that were used to form the opinions of ․ the People's [gang] expert.   Any reference to the term ‘shot caller’ is so de minim[i]s, in this Court's opinion, given the history, that it is highly unlikely that it would have swayed the jury one way or the other in determining whether the special circumstance was true or not.”

B. Admission of testimony about the shot-caller notation was harmless beyond a reasonable doubt.

Appellant argues the shot-caller notation was inadmissible hearsay evidence that should have been excluded as excessively prejudicial under Evidence Code section 352.   Appellant also contends examination of Ochoa about the shot-caller notation prejudicially infringed his federal constitutional due process and confrontation rights.   For these reasons, appellant argues that denial of the mistrial motion constitutes a prejudicial abuse of judicial discretion.   In relevant part, respondent persuasively replies that the asserted constitutional violation and state law error were harmless.   We agree with respondent concerning the absence of prejudice.   As we will explain, all of appellant's arguments ultimately fail because examination of Ochoa concerning the shot-caller notation was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman ).)

Evidentiary error under state law is reviewed for prejudice under the well-known reasonable probability of a more favorable verdict standard.  (People v. Watson (1956) 46 Cal.2d 818, 836.)   Federal constitutional error is subject to analysis for prejudice under the Chapman standard of harmless beyond a reasonable doubt.  (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 (Van Arsdall );  People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4.) Van Arsdall explains that when examining prejudice for a confrontation clause error one examines the entire record and considers many factors:

“․ The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.   Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts.   These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.  [Citations.]”  (Van Arsdall, supra, 475 U.S. at p. 684.)

We agree with the trial court's cogent assessment of the strength of the evidence proving appellant was an active Norteno when he murdered Landin.   Appellant was involved in gang-related fights, shoved a juvenile's head into a cement wall because the juvenile wouldn't “roll with the Nortenos,” made threats to kill “scraps,” sported Norteno gang tattoos, and associated with Norteno gang members, was classified as a Norteno gang member in correctional facility records and was housed with other Nortenos in jail.   Appellant's testimony that he dropped out of the gang prior to Landin's murder was not supported by the evidence adduced at trial.

Also, appellant has overestimated the impact of Ochoa's testimony about the shot-caller notation.   Appellant's contention that the jury would have concluded he was “a hardened, depraved leader of a criminal gang,” due to examination of Ochoa about the shot-caller notation is not convincing.   The People did not attempt to prove that appellant actually was a Norteno shot-caller.   The jail record containing this notation was not admitted into evidence.   The People's gang expert did not rely on the shot-caller notation in forming her opinions.   The jail intake form containing the shot-caller notation was simply one of many documents referenced by the prosecution when he examined Ortega about his opinion that appellant dropped out of the gang in 1999.   Ochoa's testimony defining the term shot-caller was brief, vague, and not particularly comprehensible.   The jury learned virtually nothing about the role shot-callers play in gang structure.

In light of all the surrounding circumstances, we do not think that the shot-caller notation would have shocked the jurors or caused them to feel antipathy towards appellant.   The circumstances of the homicide were particularly horrific and the shooting was calculated and cold-blooded.   There were seven people in the Civic and it was fortuitous that no one else was hurt.   Also, the jury learned of other gang-related violence perpetrated by appellant.   They knew he shoved a juvenile's head into a cement wall because he wouldn't “roll with the Nortenos,” and that he was involved in gang-related fights.   In light of the entirety of the evidence in this case, Ochoa's testimony about the shot-caller notation would not have inflamed the jury against appellant.

We do not believe that Ochoa's failure to recollect the shot-caller notation destroyed his credibility.   Ochoa was not a convincing witness.   This was not because he failed to recollect the shot-caller notation or factor it into his opinions.   Rather, Ochoa's credibility was damaged by the fact that his opinion that appellant dropped out of the gang was not supported by any credible evidence.   There was no evidence corroborating appellant's statement to Ochoa that he dropped out of the gang in December 1999.   Ochoa elected to base his expert opinion on appellant's statements to him, even though appellant's statements were inconsistent with the correctional facility records and appellant's conduct during that time period.

In light of all the circumstances, we conclude that examination of Ochoa about the shot-caller reference did not affect the verdict.   Whether viewed as state law evidentiary error or federal constitutional error, Ochoa's testimony about the shot-caller notation was harmless beyond a reasonable doubt.   Since admission of this testimony was not prejudicial, the mistrial motion was correctly denied.

III. CALCRIM No. 1403 was Legally Correct.

At the People's request, the court gave CALCRIM No. 1403, which instructs on the limited purposes for which gang evidence may be considered by the jury.   CALCRIM No. 1403 prohibits the jury from using such evidence to show a defendant's bad character or criminal disposition.   It instructs that gang evidence is one of many factors to consider in evaluating a witness's testimony.   Appellant challenges the following sentence in CALCRIM No. 1403:  “You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.”   He argues that, as a testifying defendant, CALCRIM No. 1403 improperly allowed the jury to find him less credible merely because he is a gang member.   Appellant contends this “amount[s] to guilt by association.”   We are not persuaded.

“․ Gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offence.   [Citations.]  Such evidence is only admissible when it is logically relevant to some material issue at trial other than character trait evidence.”  (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)   Gang evidence has frequently been found relevant and admissible on the issue of a witness's credibility.   (Id. at pp. 1449–1450;  People v. Ayala (2000) 23 Cal.4th 225, 277 [“no error in presenting [gang] evidence, which affected the witnesses' credibility”];  People v. Olguin (1994) 31 Cal.App.4th 1355, 1368–1369.)   For example, evidence that a witness is fearful of retaliation from a gang for testifying at trial is relevant to the witness's credibility.  (People v. Olguin, supra, 31 Cal.App.4th at pp. 1368–1369;  People v. Gonzalez (2006) 38 Cal.4th 932, 945–946.)   It can explain discrepancies between a witness's pretrial statement to police and trial testimony.  (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1169 (Samaniego ).)   And evidence that a witness and defendant belong to the same gang or to rival gangs is relevant to demonstrate bias.  (People v. Bojorquez (2002) 104 Cal.App.4th 335, 342.)

Samaniego, supra, 172 Cal.App.4th 1148 held that CALCRIM No. 1403 “is neither contrary to law nor misleading.”  (Id. at p. 1168.)   The Samaniego court acknowledged the risk that gang evidence may lead the jury to infer that the defendant has a criminal disposition and is therefore guilty of the charged offense.  (Id. at p. 1167.)   It observed that “evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative.  [Citations.]”  (Ibid.) It explained that CALCRIM No. 1403 “states in no uncertain terms that gang evidence is not admissible to show that the defendant is a bad person or has a criminal propensity.   It allows such evidence to be considered only on the issues germane to the gang enhancement, the motive for the crime and the credibility of witnesses.”  (Id. at p. 1168.)   The Samaniego court upheld CALCRIM No. 1403's statement that gang evidence could be considered as one factor when assessing a witness's credibility.  (Id. p. 1169.)

Appellant attempts to distinguish Samaniego on the ground that it involved witnesses other than the defendant.   This distinction is not dispositive.   In People v. Doolin (2009) 45 Cal.4th 390, the Supreme Court held:  “ ‘[B]y taking the stand, defendant put his own credibility in issue and was subject to impeachment in the same manner as any other witness.’  [Citations.]”  (Id. at p. 438.)   Appellant testified he was not, and never had been, a Norteno gang member.   Therefore, evidence of his gang association and involvements was relevant to assess the truthfulness and credibility of this testimony.   Further, fear of gang retaliation can be considered as a factor explaining the differences between Probasco's and Shipman's trial testimony and their pretrial statements to the police.   Their statements to the investigating detective were more incriminating than their trial testimony.  “Gang evidence was relevant to provide an explanation for [their] ․ prior statements.”  (Samaniego, supra, 172 Cal.App.4th at p. 1169.)   Thus, use of CALCRIM No. 1403 was supported by the evidence in this case.   We find no persuasive basis to disagree with Samaniego.   Appellant placed his credibility in issue when he testified and the gang evidence was relevant to an assessment of the truthfulness of certain portions of his testimony.

Appellant's reliance on People v. Avitia (2005) 127 Cal.App.4th 185 and People v. Lepe (1997) 57 Cal.App.4th 977, in support of his argument is misplaced.   In those cases, gang enhancements were not alleged and the reviewing courts held that evidence of the defendants' gang ties should have been excluded under Evidence Code section 352.   Neither of these cases involved a challenge to instructions on the limited uses of properly admitted gang evidence.

CALCRIM No. 1403 must be examined in the context of the entire charge to determine whether it is reasonably likely the jury misconstrued or misapplied the challenged instruction as permitting guilt by association.  (People v. Dunkle (2005) 36 Cal.4th 861, 899–900.)   We presume jurors use intelligence and common sense when applying instructions.  (People v. Bragg (2008) 161 Cal.App.4th 1385, 1396.)   We presume the jury understood and followed the court's instructions.  (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)   In addition to CALCRIM No. 1403, the jury was instructed on witness credibility pursuant to CALCRIM No. 226 and CALCRIM No. 316.   CALCRIM No. 226 instructed the jury that it should use its common sense and experience when judging the credibility of a witness and that it could consider anything that tends to prove or disprove the truth of the witness's statements, including, inter alia, such factors as whether the witness's testimony was influenced by a bias, the witness's attitude about the case, whether the witness made prior inconsistent statements, and whether the witness has engaged in conduct that reflected on his or her believability.   CALCRIM No. 316 told the jury that if it found a witness had a felony conviction or that a witness committed a crime or other misconduct, it could consider that fact only to evaluate the jury's credibility.   CALCRIM No. 316 instructs that a witness's misconduct “does not necessarily destroy or impair a witness's credibility.   It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”

In light of the entire jury charge, reasonable jurors would know they could not equate appellant's association with gang members with a lack or veracity or find appellant was not credible because his friends were gang members.   CALCRIM No. 1403 did not raise a risk of “guilt by association” or invite the jury to speculate on improper factors when assessing witness credibility.   No instructional error occurred.

IV. Section 654 did not Require Stay of the Sentence Imposed for Count 3.

During the sentencing hearing, the prosecutor argued that “[c]ount 3 and 4 would be [section] 654 of each other, but I think that's a separate conduct of taking the gun to the [trailer].”   The court found section 654 did not prohibit imposition of punishment for count 3 (possession of a firearm by an adjudged ward of the juvenile court).   It sentenced appellant on count 3 to the midterm of four years served concurrently with the sentence imposed for count 1.

Appellant argues the trial court erred in imposing punishment for count 3. In his view, section 654 required imposition of punishment for this count to be stayed because the firearm possession was simultaneous with the shooting and there was no evidence of separate intent.   We are not convinced.

Section 654 has been interpreted to prohibit multiple punishments for a single act as well as an indivisible course of conduct.  (Neal v. State California (1960) 55 Cal.2d 11, 19.)  “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.   If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.”  (Ibid.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct.  (People v. Centers (1999) 73 Cal.App.4th 84, 98;  People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268.)

Whether a course of conduct is indivisible depends on a defendant's intent and objective, not temporal proximity of offenses.  (People v. Hicks (1993) 6 Cal.4th 784, 788–789;  People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones ).)  “The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial.  [Citation.]  The factual finding that there was more than one objective must be supported by substantial evidence.  [Citation.]”  (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)   “We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.”  (Jones, supra, 103 Cal.App.4th at p. 1143.)

In Jones, supra, 103 Cal.App.4th 1139, separate punishment for felony firearm possession and shooting at an inhabited dwelling was upheld where the evidence was sufficient to allow the inference that defendant's “possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling.”  (Id. at p. 1147.)   The Jones 's court explained that the defendant “necessarily must have had either actual or constructive possession of the gun while riding in the car, as evidenced by his control over and use of the gun during the shooting.   Jones's violation of section 12021 was complete the instant Jones had the firearm within his control prior to the shooting.”  (Ibid.) Further, “It strains reason to assume that Jones did not have possession for some period of time before firing shots at the Walter home.   Any other interpretation would be patently absurd.”   (Ibid.) Therefore, the record supports “a reasonable inference that Jones's possession of the firearm was antecedent to the primary crime.”  (Ibid.)

Just as in Jones, the evidence in this case is sufficient to permit an inference that appellant had either actual or constructive possession of the gun prior to the shooting.   Appellant's argument that there was no evidence of antecedent possession ignores the facts that prior to walking up to the car and pulling the gun from his waistband, appellant must have hid the gun inside his pants.   Thus, he had to have possessed the gun before he approached the Civic.   This is not a case where appellant came into possession of the gun at virtually the same instant he discharged it.  (See, e.g., People v. Bradford (1976) 17 Cal.3d 8, 13 and People v. Venegas (1970) 10 Cal.App.3d 814, 821.)   Appellant did not wrest the gun away from Landin in a struggle and fire it.   The gun did not come onto appellant's “possession fortuitously ‘at the instant of committing another offense․’  [Citation.]”  (Jones, supra, 103 Cal.App.4th at p. 1145.)

Further, appellant kept the gun until his escape was complete and he was safely inside the trailer.   In People v. Ratcliff (1990) 223 Cal.App.3d 1401, section 654 was not found to bar separate punishment were the defendant committed two armed robberies and was still in possession of the gun when he was arrested 30 minutes later.  (Ratcliff, supra, at pp. 1410–1414.)   Here, appellant's decision to keep the gun until he was securely ensconced in a place of refuge served two purposes that are distinct from the murder:  (1) appellant could have used the gun to protect himself against immediate retaliation by Surenos gang members;  and (2) appellant could have used the gun to facilitate his escape or prevent capture in the event of a police chase.   Thus, appellant's act of keeping the gun after the shooting supports an inference of separate intents.

For these reasons, we conclude section 654 did not bar imposition of separate punishment for count 3.

V. The Insurance Company was not Entitled to Direct Victim Restitution.

A. Facts.

The probation report contains a copy of an itemized funeral agreement between Parkview Mortuary Chapel (the mortuary) and Landin's father, Rodrigo Landin.   The agreement reflects burial costs in the amount of $3,329.71.   Precision Risk Management, Inc., acting on behalf of Sirius America Insurance Company issued a check jointly to the mortuary and Rodrigo Landin in the amount of $3,329.71.   According to the insurance company check receipt, the insured was “VTP Enterprises, Inc., Syed Hasan, Genise Hasan.”   The receipt stated this check was medical payment reimbursement and the payment type was “Partial Payment.”

During the sentencing hearing, the prosecutor stated burial costs were paid by Precision Risk Management through an insurance policy maintained by Jack in the Box. Over defense objection, the court ordered appellant to pay restitution in the amount of $3,329.71 to “Precision Risk Management on behalf of Sirius America Insurance [C]ompany.”   Also, the court ordered appellant to pay $600 to Liduvina Medina in restitution for the cost of Landin's headstone and $960 to Landin's family members in restitution for lost wages ($320 to Liduvina Medina, $320 to Rodrigo Landin and $320 to Laura Landin–Medina).

B. Sirius Insurance was not a direct victim.

Appellant argues the insurance company was not entitled to restitution because it was not a direct victim.   Respondent concedes the point and we accept the concession as properly made.   Section 1202.4, subdivision (k) defines the term “victim” for purposes of restitution.   A corporation “or any other legal or commercial entity” is a victim “when that entity is a direct victim of a crime.” (§ 1202.4, subd. (k)(2).)  “Insurance companies that suffered the consequences of crime only by reimbursing the crime-related losses of their policyholders did not reasonably fit within this definition.”  (People v. Birkett (1999) 21 Cal.4th 226, 233.)   Since Precision Risk Management and Sirius America Insurance Company were not directly involved in Landin's murder, and suffered loss due only to payment of a claim, we agree with the parties that the insurance company was not a direct victim.   Therefore, it was not legally entitled to direct victim restitution pursuant to section 1202.4.

C. The proper remedy is to reverse the restitution order and remand for a new restitution hearing.

The parties dispute the proper remedy.   Initially, appellant argued that we should strike the restitution award to the insurance company.   Respondent urged us to remand the case to the trial court with directions to modify the restitution order by awarding $3,329.71 to Landin's family instead of the insurance company.   In reply, appellant argued that unresolved factual questions concerning the identity of the policyholder and the actual amount paid to the mortuary as opposed to the amount billed by it necessitate a new restitution hearing.

We agree with appellant that there are unresolved factual questions surrounding payment of Landin's funeral expenses which preclude this court from modifying the restitution order.   The identity of the policyholder is not certain.   It is not clear what portion of the funeral costs were actually paid by Landin's family.   Due to these evidentiary gaps in the appellate record, we believe the appropriate remedy is to reverse the restitution order and remand for a new restitution hearing to determine if a member of Landin's family is factually and legally entitled to direct victim restitution for funeral related expenses and, if so, the amount of such restitution.  (People v. Williams (2010) 184 Cal.App.4th 142, 149 [restitution order reversed and new restitution hearing ordered];  In re Brittany L. (2002) 99 Cal.App.4th 1381, 1386, 1392 [same];  People v. Flaherty (1990) 223 Cal.App.3d 1139, 1141, 1144 [same].)   The trial court shall include as part of its new restitution order the amounts that were previously awarded to members of Landin's family for a headstone and for lost wages, which were not contested on appeal.

DISPOSITION

The restitution order is reversed and the matter is remanded to the superior court with directions to conduct a new restitution hearing.   In all other respects, the judgment is affirmed.

LEVY, J.

WE CONCUR:

WISEMAN, Acting P.J.

GOMES, J.

FOOTNOTES

FN1. The People's gang expert defined “scrap” as “a derogatory term for southerner.   The northerners use it, like, leftovers or table scraps, something like that.”.  FN1. The People's gang expert defined “scrap” as “a derogatory term for southerner.   The northerners use it, like, leftovers or table scraps, something like that.”

FN2. Unless otherwise specified all statutory references are to the Penal Code..  FN2. Unless otherwise specified all statutory references are to the Penal Code.

FN3. The People sought the death penalty but the jury deadlocked on penalty and the People declined to retry the penalty phase..  FN3. The People sought the death penalty but the jury deadlocked on penalty and the People declined to retry the penalty phase.

FN4. Gang-related testimony will be separately set forth in connection with appellant's challenge to the sufficiency of the evidence..  FN4. Gang-related testimony will be separately set forth in connection with appellant's challenge to the sufficiency of the evidence.

FN5. Tabitha Price, who was sitting in the Civic's back seat, identified appellant as the shooter in a live lineup and at trial.   She did not select anyone from a photo array that she was shown three days before the live lineup.   The other passengers in the Civic either could not identify anyone as the shooter or did not select appellant in the photo array and/or the live lineup.   The defense presented expert testimony on the psychology of eyewitness memory and identification..  FN5. Tabitha Price, who was sitting in the Civic's back seat, identified appellant as the shooter in a live lineup and at trial.   She did not select anyone from a photo array that she was shown three days before the live lineup.   The other passengers in the Civic either could not identify anyone as the shooter or did not select appellant in the photo array and/or the live lineup.   The defense presented expert testimony on the psychology of eyewitness memory and identification.

FN6. Nava heard the shooter say, “You're a bunch of scraps,” and George heard the shooter say, “fucking scraps.”.  FN6. Nava heard the shooter say, “You're a bunch of scraps,” and George heard the shooter say, “fucking scraps.”

FN7. The trailer was a gathering place for methamphetamine users.   Shipman was a daily methamphetamine user and Probasco used drugs heavily.   Hall testified that Shipman and Probasco drank and ingested amphetamines before appellant arrived..  FN7. The trailer was a gathering place for methamphetamine users.   Shipman was a daily methamphetamine user and Probasco used drugs heavily.   Hall testified that Shipman and Probasco drank and ingested amphetamines before appellant arrived.

FN8. Neither blood nor gunshot residue was found on the clothing appellant left at the trailer..  FN8. Neither blood nor gunshot residue was found on the clothing appellant left at the trailer.

FN9. Shipman testified Probasco was in the bedroom with them.   Probasco denied seeing a gun and testified that she left the bedroom before Shipman entered it..  FN9. Shipman testified Probasco was in the bedroom with them.   Probasco denied seeing a gun and testified that she left the bedroom before Shipman entered it.

FN10. Gray testified this incident took place in 2002.   When Gray was confronted with evidence that he was “in jail or prison or something” during 2002, Gray testified the incident must have occurred in 2001.   Appellant denied that the incident ever took place..  FN10. Gray testified this incident took place in 2002.   When Gray was confronted with evidence that he was “in jail or prison or something” during 2002, Gray testified the incident must have occurred in 2001.   Appellant denied that the incident ever took place.

FN11. Officer Fahoum used the words “Norteno,” “north” and “northern” interchangeably, and used the words “Sureno,” “south” and “southern” interchangeably.   For example, she testified that Nortenos are “spread throughout Tulare County.   We're predominately northern area here.”   (Italics added.)   Also, she testified the main rival of the Norteno gang is “the southerners, or the Surenos.”  (Italics added.)   Later, she explained that “the northerners' enemies ․ is the southerners ․  But the main rivalries, the north and the south.   And they're both Hispanic criminal street gangs.”  (Italics added.)   Therefore, we reject appellant's assertion that Officer Fahoum's references to north/northerner and south/southerner were geographical indicators to regions of California and residents of these regions..  FN11. Officer Fahoum used the words “Norteno,” “north” and “northern” interchangeably, and used the words “Sureno,” “south” and “southern” interchangeably.   For example, she testified that Nortenos are “spread throughout Tulare County.   We're predominately northern area here.”   (Italics added.)   Also, she testified the main rival of the Norteno gang is “the southerners, or the Surenos.”  (Italics added.)   Later, she explained that “the northerners' enemies ․ is the southerners ․  But the main rivalries, the north and the south.   And they're both Hispanic criminal street gangs.”  (Italics added.)   Therefore, we reject appellant's assertion that Officer Fahoum's references to north/northerner and south/southerner were geographical indicators to regions of California and residents of these regions.

FN12. Officer Fahoum opined appellant was a Norteno at that time based on his self-admission, prior contacts with law enforcement, and the crime's location..  FN12. Officer Fahoum opined appellant was a Norteno at that time based on his self-admission, prior contacts with law enforcement, and the crime's location.

FN13. Officer Fahoum testified that a field interview card indicated appellant had four dots tattooed on one hand and one dot tattooed on the other.   She did not consider “the presence of or absence of dots” in forming her “opinion in this case.”.  FN13. Officer Fahoum testified that a field interview card indicated appellant had four dots tattooed on one hand and one dot tattooed on the other.   She did not consider “the presence of or absence of dots” in forming her “opinion in this case.”

FN14. During his closing arguments, the prosecutor argued that GMK was not simply a tagging crew and was aligned with the Nortenos, but “[w]e didn't actually have to prove that GMK is a gang” because the relevant criminal street gang was the Nortenos.   Then the prosecutor discussed the evidence proving appellant was an active Norteno..  FN14. During his closing arguments, the prosecutor argued that GMK was not simply a tagging crew and was aligned with the Nortenos, but “[w]e didn't actually have to prove that GMK is a gang” because the relevant criminal street gang was the Nortenos.   Then the prosecutor discussed the evidence proving appellant was an active Norteno.

FN15. Appellant's complaint that this answer was nonresponsive was forfeited by the absence of an objection on this ground at trial.   (Evid.Code, § 353, subd. (a);  People v. Dorsey (1974) 43 Cal.App.3d 953, 959.)   Appellant's contention that this answer referred to all gangs in general rather than to the Nortenos is not persuasive because appellant failed to consider the response in context.   Officer Fahoum was answering questions about the Nortenos.   It was not necessary for her to include the word “Nortenos” in every response.   It was apparent from the line of questioning that she was testifying about the Nortenos and not just giving generalized testimony about the sociology, culture and primary activities of street gangs.   That the Nortenos share characteristics with other street gangs is not surprising..  FN15. Appellant's complaint that this answer was nonresponsive was forfeited by the absence of an objection on this ground at trial.   (Evid.Code, § 353, subd. (a);  People v. Dorsey (1974) 43 Cal.App.3d 953, 959.)   Appellant's contention that this answer referred to all gangs in general rather than to the Nortenos is not persuasive because appellant failed to consider the response in context.   Officer Fahoum was answering questions about the Nortenos.   It was not necessary for her to include the word “Nortenos” in every response.   It was apparent from the line of questioning that she was testifying about the Nortenos and not just giving generalized testimony about the sociology, culture and primary activities of street gangs.   That the Nortenos share characteristics with other street gangs is not surprising.