THE PEOPLE v. JAMES CRAMER

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Court of Appeal, Sixth District, California.

THE PEOPLE, Plaintiff and Respondent, v. JAMES CRAMER et al. Defendants and Appellants.

H034348

Decided: December 30, 2016

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on December 30, 2016, be modified as follows:

1. On page 63, the second sentence of the first full paragraph is modified to read:

Defendants argue that the trial court's decision violated People v. Duran (1976) 16 Cal.3d 282 (Duran).

2. On page 66, the second sentence of the second full paragraph is modified to read:

We find the Ceniceros court's reasoning persuasive regarding the applicable test for prejudice, meaning that defendants must show that it is reasonably probable that a result more favorable to them would have been reached in the absence of the improperly shackled witnesses.

3. On page 66, the final sentence of the second full paragraph is modified to read:

We once again limit this discussion to the impact of this error on defendants' conspiracy convictions.

4. On page 67, the penultimate sentence of the first paragraph is modified to read:

There was also ample evidence supporting defendants' guilt for the conspiracy charges.

There is no change in the judgment.

The petition for rehearing is denied.

GROVER, J.

During 20 days of trial, gang experts testified that a group of people who sold methamphetamine in Santa Clara County was in reality a Nuestra Familia (NF) gang regiment, and that defendant James Cramer (Cramer) was the regiment commander. The second-in-command of the regiment was defendant Jeremy Paigly (Paigly), who belonged to Nuestra Raza (NR), a gang created by the NF. Codefendants Cramer, Paigly, and Louis James Rodriguez (Rodriguez) appeal their convictions for actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)) and conspiring to sell methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379) for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). We find that defendants' rights of confrontation were violated when they were not allowed to cross-examine certain witnesses, and that the trial court should have excluded unnecessary evidence of the violent character and conduct of NF members. We will find no reversible error related to any of the defendants' convictions for conspiring to sell methamphetamine. However, we will reverse the judgments because the trial court's admission of unduly prejudicial gang evidence was reversible error as to the gang enhancements and the defendants' convictions for active participation in a criminal street gang.

I. TRIAL EVIDENCE

A. PROCEDURAL HISTORY AND SUMMARY OF TRIAL1. INVESTIGATION AND INDICTMENT

On January 26, 2007, Campbell Police pulled over a Jeep containing Paigly and Carol Salgado (Salgado) after they left a residence on Ravenscourt Avenue. Officer Terry Gallagher searched Paigly, finding a cell phone and $287. Paigly appeared to be under the influence of a controlled substance. Campbell Police Officer Joe Cefalu patsearched Salgado and noticed she appeared to be under the influence of a controlled substance. Salgado admitted that she had smoked methamphetamine the night before. Salgado eventually turned over two baggies containing an off-white crystal substance that she was carrying. The substance was later determined to be nearly an ounce of methamphetamine.

The officers took Paigly and Salgado to their apartment on Ravenscourt. In the bedroom, officers found an operable digital scale, a glass smoking pipe with white and burnt residue, and a black briefcase containing a utility bill addressed to Salgado as well as a collection of loose-leaf pages.

Those loose-leaf pages suggested the existence of an NF regiment previously unknown to law enforcement. One document, written in red ink, referred to “regiment policies” with phrasing typically used by the NR. (Capitalization omitted.) Another document, also in red ink, listed the nicknames or monikers of five “members” and five associates. From top to bottom, the document listed: “Jaime” (Cramer); “Rhino,” (Paigly, also known as Loc$); “Chone” (Damien Mendez); “Shorte” (Ronald Wreath); and “Syces” (Paul Rios). (Capitalization omitted.) A third document, also in red ink, appeared to be a bookkeeping ledger written by Paigly of amounts paid and owed by various individuals for pounds, half pounds, ounces, and half ounces of an undisclosed substance.

Campbell Police Sergeant Daniel Livingston had helped investigate a different NF drug-dealing regiment in Santa Clara that was commanded by John Mendoza. After learning about the documents seized from Paigly's residence, Livingston began listening to recordings of telephone calls from the Santa Clara County jail made by Paigly, his girlfriend, and Cramer (who was in jail for a parole violation). By interpreting heavily coded conversations, Livingston traced a web of connections among several individuals, leading to searches that produced letters written by Paigly, Cramer, and others.

The investigation led to an amended indictment that charged nine people with actively participating in a criminal street gang in violation of the California Street Terrorism Enforcement and Prevention (“STEP”) Act of 1988. (Pen. Code, § 186.22, subd. (a).)1 The amended indictment also charged 12 people with conspiring to sell methamphetamine (§ 182, subd. (a)(1); Health & Saf. Code, § 11379) for the benefit of a criminal street gang (§ 186.22, subd. (b)).

Several defendants pleaded guilty or no contest to the conspiracy charge without trial, including Ronald Wreath. Four codefendants, James Cramer, Jeremy Paigly, Louis Rodriguez, and Rudy Miramontes, went to trial. Paigly also faced two separate charges of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and transporting it (Health & Saf. Code, § 11379), with gang enhancements.

2. TRIAL SUMMARY

As we will describe in greater detail, Sergeant Livingston and NF member John Mendoza testified extensively at trial. The trial court allowed Livingston to testify as an expert in the areas of “illegal narcotics and narcotics for sale”; interpreting narcotics terminology; “Hispanic criminal street and prison gangs”; and gang methods of communication. Mendoza was allowed to testify as an expert in the areas of “Hispanic criminal street gangs and in particular the Nuestra Familia.” Mendoza was also a percipient witness to jailhouse conversations involving Cramer, Rodriguez, and Miramontes. Livingston and Mendoza presented evidence about the organization of the NF and the NR and obligations of gang members both in and out of prison, as did Patrick Martinez, an NR member who had sold methamphetamine and collected dues for several regiments, including Mendoza's.

Cramer was in custody during all the overt acts of the conspiracy and was housed in the Santa Clara County jail until February 5, 2007. Frank Gutierrez was Cramer's cellmate. During all the overt acts of the conspiracy, Rodriguez was housed in a nearby cell. Paigly and Wreath were placed in the same jail area after being arrested separately in constructive possession of methamphetamine in January 2007.

The prosecution did not allege that Rodriguez, Gutierrez, or Miramontes were members of Cramer's regiment. As to Rodriguez, the prosecutor acknowledged in his opening statement, “while there's no evidence that he was participating in Mr. Cramer's regiment[ ] when he's out of custody, pursuant to the guidelines of the organization, when you go into an institution like a jail, you're to function with the organization as a whole. And so he was there to assist an [NF] member in collecting money for that regiment. By doing that, he doesn't have to be a member of that regiment to be held accountable for being involved in that conspiracy because what he was doing was assisting[ ] in accomplishing the goals of the conspiracy.” The prosecutor described that Cramer put Rodriguez and Gutierrez in charge of some regiment responsibilities while Cramer was relocated to another jail.

Though no defendant testified, their words were admitted as admissions and as statements by coconspirators. The jury heard excerpts of dozens of phone calls involving defendants. And several letters and other pieces of documentary evidence related to defendants were admitted into evidence.

Almost all the overt acts were recorded telephone calls and letters from the Santa Clara County jail from early 2007. The letters and phone calls showed that Cramer, Paigly, and Wreath, assisted by Rodriguez and Gutierrez, continued to conduct regiment business while in custody, specifically tracking down unpaid debts from drug sales and unsold quantities of methamphetamine and encouraging future sales of methamphetamine, partly in order to pay an $800 obligation owed to three incarcerated NF leaders. The pay/owe ledger in Paigly's possession was evidence of earlier methamphetamine sales. The prosecutor argued that this conduct by defendants and other coconspirators fit within the established framework of an NF regiment.

3. VERDICTS AND SENTENCING

The jury was given a modified form of the amended indictment, which alleged 15 overt acts in furtherance of the conspiracy, 13 of which occurred in the 23 days following Paigly's arrest (January 26, through February 17, 2007). The jury was instructed to determine who among a list of 29 individuals, including the four codefendants, were coconspirators whose statements were admissible against the codefendants.

In October 2008, the jury convicted Cramer, Paigly, and Rodriguez of all charges and enhancements, but was unable to reach a verdict on the charges against Miramontes. The court declared a mistrial as to Miramontes. After a court trial on prior convictions alleged, the court found true that Paigly had been sentenced to 16 months in prison following a 1998 conviction of possessing a controlled substance and that he had been sentenced to prison for four years following a 2000 conviction for manufacturing methamphetamine. The trial court also found true that Cramer had been sentenced to prison following March 1992 convictions for 11 counts of second degree robbery (a serious felony) and two counts of attempted second degree robbery;2 that he was later separately convicted in July 1992 of second degree robbery; and that he was convicted of two more robberies in December 1992, for which he had served a separate prison term. Rodriguez admitted having convictions for the serious felonies of first degree burglary in 1991 and carjacking in 1994, and also for possessing a controlled substance for sale in 1994, for which he had served a prior prison term.

The trial court sentenced Paigly to prison for 13 years, eight months (consisting of a four-year upper term on the conspiracy count; a consecutive four-year upper term for the gang enhancement (§ 186.22, subd. (b)(1)(A)); two one-year prior prison term enhancements (§ 667.5, subd. (b); a three-year prior drug possession enhancement (Health & Saf. Code, § 11370.2, subd. (c)); and eight months (one-third the midterm) based on a separate conviction by no contest plea of soliciting a burglary. (§ 653f, subd. (a)).) The court imposed upper terms on the remaining convictions and enhancements, but stayed them. (§ 654.)

The trial court sentenced Cramer to an indeterminate term of 25 years to life in prison on the conspiracy count due to his 16 prior strikes (§§ 667, subd. (e)(2)(A)(ii); 1170.12, subd. (c)(2)(A)(ii)), with the same sentence stayed on the gang participation count. (§ 654.) This indeterminate term is consecutive to a determinate 18 years (consisting of 15 years of enhancements due to three prior serious felony convictions (§ 667, subd. (a)) and a three-year midterm for the gang enhancement (§ 186.22, subd. (b)(1)(A))). An additional year for the prior prison sentence was stayed. (§ 654.)

The trial court sentenced Rodriguez to an indeterminate term of 25 years to life in prison on the conspiracy count due to his two prior strikes, with the same sentence stayed on the gang count. (§ 654.) This indeterminate term is consecutive to a determinate 11 years (consisting of 10 years of enhancements for two prior serious felony convictions (§ 667, subd. (a)) and one year for one-third the midterm on the gang enhancement (§ 186.22, subd. (b)(1)(A))). An additional year for the prior prison sentence was stayed and the prior drug possession enhancement (Health & Saf. Code, § 11370.2, subd. (c)) was stricken under section 1385. Rodriguez's sentence was made consecutive to an indeterminate life term for attempted murder in another case. Because Rodriguez received his presentence custody credits in the attempted murder case, he was given no presentence custody credits in this case.

B. EVIDENCE OF A CRIMINAL STREET GANG

The prosecution presented evidence about the structure of the Nuestra Familia to provide context for the phone calls and letters of individual defendants and their associates.

1. TESTIMONY OF SERGEANT LIVINGSTON

Livingston described taking courses about gangs and his investigation of gang drug crimes after his appointment in 2000 to the Santa Clara County Specialized Enforcement Team. He taught courses about local gangs to police officers and sheriffs in Santa Clara County. In 2004, Livingston was involved in the investigation into an NF regiment in Santa Clara County that led to indictments against Mendoza and several associates for selling methamphetamine, laundering money, and stockpiling weapons.

Livingston testified that the NF formed in the mid-1960s to protect Hispanic prisoners who were migrant farm workers from northern California against the Mexican Mafia, which consisted of Hispanics from bigger cities and southern California. Being from the north, they called themselves “Norteños,” which is Spanish for “northerner.” They identify with the letter “N” (the 14th letter of the alphabet), variations on the number 14, and the color red.

The NF was formed on a paramilitary structure, with one general under whom were captains, lieutenants, and line-level soldiers. The gang sometimes referred to itself as the organization or “O.” The NF adopted a new constitution in the late 1970s or early 1980s due to a concern about potential corruption from having a single leader. The new constitution classified members into categories, with III being the highest category. The constitution does not require selling drugs and discourages drug use by NF members. At the time of trial in 2008, the NF high command consisted of three generals and an inner council, all housed in the Security Housing Units at Pelican Bay State Prison, a maximum security prison. There were “a few hundred” NF members in and out of custody.

NF membership is a lifetime commitment. If a member is discharged from prison, he is expected to get involved in a street regiment, pay dues to incarcerated NF leaders, and collect dues from other regiment members. The old NF constitution described setting up street regiments, regiment banks, and a main bank. Paroled NF members tend to downplay their gang affiliation by not wearing gang clothing and avoiding confrontations with Sureños.

The California Department of Corrections and Rehabilitation (CDCR) began segregating NF members from the main prison population in the early 1980s. The NF responded by creating the Nuestra Raza to avoid validation by the CDCR and to maintain control of the general prison population. The NF wrote “14 bonds” for the NR. The NR answers to the NF. Around 1997, the NF became concerned that the NR was getting too independent and responded by stripping the NR name from that group. The NF began calling former NR members “Norteños,” while calling street gang members who were formerly known as Norteños “Northerners” instead. The CDCR began referring to these related prison gangs as the “Northern Structure.”

Street-level gangs provide the NF with a source of income, with imprisoned gang members collecting taxes or monthly dues of $200. Paroled NF members may rely on Norteño street gang members to commit assaults and sell drugs. The NF sometimes directs street gangs to commit crimes for the organization. The consequences of being labeled a snitch against the NF “can be anything from a physical assault, all the way up to murder ․”

2. TESTIMONY OF JOHN MENDOZA

Mendoza joined a Norteño street gang at the age of 14. While serving a sentence in San Quentin State Prison in 1989, he committed himself to the NR. One of the NR responsibilities in prison was to be “the soldiers” who protected the rest of the northerners in the general population and removed any threats. The CDCR validated Mendoza as an NR member in 1991 and he became an NF member in 1994.

Mendoza has “familiano” tattooed over his right eye, which signifies his NF membership; an NF tattoo on the back of his head and on his left arm; and a star tattoo signifying his NR association over his left eye. According to Mendoza, a person who goes to prison displaying NF tattoos without being an NF member would be punished by a beating or stabbing.

In custody, the NR functions as the eyes and ears of the NF in the general population for NF members. NR is like “a subsidiary league,” allowing the NF an opportunity to evaluate how “prospective members” function in “an organized structure.” NR members are “subordinates” who can be disciplined for not following an NF directive, which can involve physical exercise or writing essays, up to “removal.” Stabbing is a common type of removal in custody. In prison, an NR member could not refuse an NF order to kill another inmate. A “northerner” is an unstructured nonaffiliated gang member who is not committed to the NR.

By 1997, some NR members began to pull away from the NF and cast off their subordinate role. The NF identified the disruptive individuals and put them on a hit list called a “bad news list.” Though the NF took the name “Nuestra Raza” away from the group and identified its members as “Norteños,” the NR continued to exist as a functioning group. “Northern Structure” is a phrase used by the CDCR, not by gang members. In Mendoza's opinion, in California at the time of trial there were around 200 NF members and between 600 to 1,000 NR members in the prison system and on the streets.

Females are used by gang members as communication hubs, facilitating three-way telephone calls and rewriting or rerouting letters because inmates are not supposed to communicate with inmates in other institutions. Codes are often used by gang members to keep sensitive information from law enforcement.

Mendoza confirmed Livingston's testimony that commitment to the NF is binding for life. NF members who are released from prison are assigned to a street regiment to continue functioning and might be killed for not doing so. It is common for the NF to kill its enemies as well as former members who are deemed traitors. In a street regiment, an NF member is usually the regimental commander, with NR members and northerners working under him.

Regiment members “are required to pay $200 a month as their dues” to the organization.3 Aside from dues, a regiment would also be required to send additional money in taxes to NF members in state prison based on how profitable the regiment was. “Each regiment keeps a regimental bank” and the NF constitution mandates that some of the money be sent to less fortunate NF members in prison. The money was also supposed to go into an organization bank for use in setting up new regiments, both by acquiring weapons and by providing loans to invest in legitimate businesses to disguise drug profits.

According to Mendoza, a kite taken from Sammy Ramirez (the “Ramirez kite”)4 by correctional officers reflected changes to the NF constitution and leadership. The document included the leadership structure for the NF and a regiment, the 14 bonds, and the three categories of NF members.

Mendoza operated an NF regiment in San Jose from when he was discharged from prison in April 2003 until his arrest in June 2004. Patrick Martinez was an NR member who worked in Mendoza's regiment and other regiments. Mendoza was directed to set up a San Jose regiment by NF general Cornelio “ ‘Corny’ ” Tristan. Mendoza gave Tristan's wife part of the proceeds of his regiment's sales of methamphetamine and heroin, eventually totaling $70,000 to $80,000. Tristan promoted Mendoza to the highest NF rank of category III in 2004. Only generals hold a higher rank than category III members. While Mendoza had never killed anyone, he had been violent on the streets many times and had stabbed people. As a regimental commander, he had put people on “bad news” lists and had relayed directives resulting in violence.

Mendoza was arrested on his latest charges in June 2004. The 2005 indictment of Mendoza and his regiment (in evidence at trial in this case) charged Mendoza with, among other things, conspiring to sell methamphetamine for the benefit of a criminal street gang between January 2004 and April 2005 and active participation in a criminal street gang.

Mendoza had been in continuous custody in the Santa Clara County jail since 2004. Mendoza and Miramontes (also known as Dancing Bear or D.B.) communicated in jail using kites. From January through April 2007, Mendoza was moved into a cell in the second east maximum area where other Norteño gang members were housed. Rodriguez acknowledged to Mendoza at some point that he was in the San Jose Grande (S.J.G.) gang.

At some point, Mendoza was put “on freeze” with the NF, meaning that he was shut down and no gang information was to be shared with him, though he was still entitled to respect. Miramontes told Mendoza that some NF members, including defendant Cramer, were campaigning against him on the streets and trying to get Lorenzo Guzman to sanction Mendoza's removal.

Mendoza became disenchanted with the NF while in custody and eventually agreed to testify against a number of NF and NR members in the hope of obtaining a reduced sentence. Mendoza signed a written plea agreement, which recited that Mendoza was facing a minimum term of 90 years to life in prison, but if he testified in a truthful and detailed manner, the prosecution would consider dismissing three of his four strikes, yielding a minimum term of 20 years, four months. He also received immunity from use of his testimony against him.

3. TESTIMONY OF VINCE LAWSON

Vince Lawson was part of the CDCR's gang validation process and worked to track validated gang members who were on parole. Defense counsel stipulated to Lawson's expertise “in the area of prison gangs.” According to Lawson, when a gang member is validated, he is sent to a Security Housing Unit and does not mingle with the general population. At the time of trial there were about 11,000 validated gang members in California prisons. The highest ranking gang members are sent to Pelican Bay, considered the most secure institution. The CDCR termed members of these gangs “Northern Structure.” A five-pointed Northern Star is a common tattoo of Northern Structure members.

4. TESTIMONY OF DENNIS GILLOTTE

Dennis Gillotte had been a Santa Clara County Correctional Officer since 2002 and he was currently a classification officer. The court accepted Gillotte as an expert “in the area of Hispanic gangs and their activities within the Santa Clara County Jail.” It was Gillote's job to classify inmates, not to validate their gang membership. He accepted CDCR validations. Validated gang members wear red clothing while in jail. The general population wears orange. Paigly wore orange.

In the Santa Clara County jail, Mendoza was placed in cell 207 from October 2, 2006 until late April 2007. Rodriguez was in cell 208, next to Mendoza, from November 4, 2006 until April 28, 2007. From September 29 to October 2, 2006, Miramontes was housed in cell 205. From October 2, 2006 until he left the jail on February 27, 2007, Miramontes was in cell 204. Cramer shared cell 202 with Frank Gutierrez from January 24, 2007 until Cramer left the jail on February 5, 2007. Gutierrez remained in that cell until March 6, 2007, when he moved into cell 208 with Rodriguez until April 28, 2007. Patrick Martinez was housed in cell 209 from January 25 through March 13, 2007. Cramer returned to the jail on June 26, 2007.

5. GANG ORGANIZATION IN JAIL AND PRISON

Mendoza, Lawson, and Gillette each described the highly organized nature of the NF and NR gangs in jail and prison. Mendoza testified that Miramontes was the regimental commander for the Santa Clara County jail while they were both in custody there. Martinez confirmed that Miramontes was the “ ‘authority in charge’ ” of the gang for the whole jail. According to Lawson, gang members in prison question inmates who are housed with them about their criminal and gang history. A new inmate is closely monitored until he is cleared by the prison leader or the leadership in Pelican Bay.

6. PRIOR CRIMES BY GANG MEMBERS

The prosecution produced documentary evidence from four prosecutions reflecting the convictions of a dozen different defendants of several offenses. We will review that evidence in detail in considering its sufficiency in establishing a pattern of offenses committed by the NF.

7. GANG MEMBERSHIP OF NAMED DEFENDANTS

a. Cramer's Gang Membership

Livingston, Lawson, Mendoza, and Martinez all offered opinions that Cramer was an NF member. Lawson said that Cramer was validated by the CDCR as an NF member. Livingston's opinion was based on CDCR validations in 1996 and 2002 as well as on Cramer's tattoos, though Livingston acknowledged the tattoos reflected a Norteño association, but not specifically NF membership.

When they were both incarcerated at Pelican Bay, Mendoza and Cramer sometimes spoke and Mendoza passed a lot of written communications between Cramer and Victor Esquibel.5 Mendoza believed that Esquibel was Cramer's “channel,” a person in the NF to whom Cramer was accountable. Cramer's name was on a prison roster of NF members. He had previously identified himself to Mendoza as an NF member.

While they were both in Santa Clara County jail in 2007, Mendoza did not speak with Cramer because he had heard Cramer was opposed to him. During that time, Mendoza overheard Cramer seeking guidance from Miramontes about how to run a regiment. Though a lot of their conversation was in code, Mendoza testified that he heard Cramer talk about his regiment selling methamphetamine and trying to collect a lot of money on the streets.

b. Paigly's Gang Membership

Livingston, Lawson, and Mendoza offered opinions that Paigly was an NR member or associate. Mendoza did not know Paigly personally but had heard from Frank Gutierrez that Paigly was second in command in Cramer's regiment for a while.

Lawson opined that Paigly was an NR “member or associate” based on reports he reviewed about Paigly's conduct during an earlier prison sentence, including his participation in the removal of another prisoner.

Livingston acknowledged that Paigly had not been validated by the CDCR as an NF or NR member, nor had he been so classified at the Santa Clara County jail. Livingston's opinion was based on Paigly's conduct in this case, his tattoos, and some writing on compact discs retrieved during a June 2007 search of Paigly's residence.

c. Rodriguez's Gang Membership

Livingston, Lawson, and Mendoza offered opinions that Rodriguez was an NR member. According to Lawson, Rodriguez was validated twice by the CDCR as an NR member (1997 and 2004).

While Mendoza was housed near Rodriguez in Santa Clara County jail in 2007, Rodriguez told Mendoza that he was in a Norteño gang called San Jose Grande and that he had been in the Security Housing Unit at Pelican Bay Prison because he was a validated gang member. Mendoza had also seen Rodriguez's name on gang rosters identified as a “bro,” or an NR member. Mendoza believed that before incarceration Rodriguez had functioned in the regiment of either Cramer or Lorenzo Guzman.

Livingston's opinion was based on Rodriguez's activities in the Santa Clara County jail and on his tattoos. Rodriguez was a member of the San Jose Grande gang. Livingston believed that, like other San Jose Grande members, Rodriguez had functioned in Guzman's regiment before his incarceration.

C. EVIDENCE OF THE CONSPIRACY

The prosecution presented extensive evidence (in the form of phone calls, letters, and testimony explaining those communications) regarding the conspiracy to sell methamphetamine alleged in the indictment. As Rodriguez is the only defendant challenging the sufficiency of the evidence supporting his convictions, we focus on communications related to his claims that there was insufficient evidence of: a pattern of criminal gang activity by a criminal street gang; his participation in the conspiracy; and his specific intent to promote, further or assist a criminal street gang. For clarity, we will refer to individuals by their surnames, followed in parentheses by the moniker actually used in a given call. Errors in the following quoted materials were in the original. Livingston opined about various individuals' monikers and, in most cases, monikers were corroborated by the individual using the moniker.

All phone calls from the Santa Clara County jail relevant to this case occurred in 2007. An administrative officer for the classification unit of the Santa Clara County Department of Corrections testified that every outgoing telephone call by a jail inmate is recorded onto a computer system (except attorney-client communications). The system does not identify or record the caller, only the number dialed and the originating housing unit. Livingston and Mendoza offered opinions about what numerous coded statements meant. Each jail inmate is assigned one “Personal File Number” no matter how many times he or she is incarcerated. Inmates sending letters must include their full name, their Personal File Number, and the main jail's return address.

Based on the following evidence, the jury was instructed to determine whether specified individuals were coconspirators, including Cramer, Paigly, Rodriguez, Miramontes, Thornhill, DeSantiago, Silva, Salgado, Wreath, Talavera, Burns, Gutierrez, Hill, Mendez, Lechuga, Guillen, Marin, Clark, Morreira, and Esquibel.

1. INITIAL JAIL COMMUNICATIONS ON JANUARY 24-26

According to a jail recording on January 24, Cramer called Shelby Thornhill and told her he had been arrested for a parole violation after a positive drug test. Cramer told her he needed help from “Dreamer” (real name never identified) to collect debts and was going to try to be placed near Rodriguez (“my homeboy Loony”). He mentioned Robert Talavera (“Pretty Boy”; an NR member according to Livingston) was housed elsewhere in the jail (the “Snake Pit”). Thornhill was going to send Cramer something in the mail and he wanted her to tell Joseph DeSantiago (“Spray”) about a job. In another call on January 24, Cramer talked to Thornhill about selling his truck to make a loan payment.

Rodriguez called Alysia Silva on January 26, identified himself as “Looney,” and told her that his “boy” “J” was “stressed out.” Livingston thought Rodriguez was referring to defendant James Cramer. Livingston opined that it is common for NF members to employ a lower ranking NR member in the same housing area to communicate directives to circumvent detection by law enforcement. Rodriguez told Silva that “if Compas's brother happens to” send her money or if Rodriguez told her “to go pick it up, just – just hold onto it.” “He wants to send it to somebody” and Rodriguez would write her the information. If Silva received money from Eric Burns (“the Ready guy”) she should hold onto that too. Rodriguez said Burns acted spooked when “he” spoke to Burns.

Mendoza testified that he learned on the tier that Burns came from the seventh floor to the Norteño housing area for the purpose of straightening out his situation. Burns had been functioning in Cramer's regiment but was “on freeze.” According to Jail Officer Gillotte, Burns was relocated to cell 219 on January 24, the date of Cramer's arrest. When Cramer left the jail, Burns was moved back to the seventh floor.

2. PAIGLY'S ARREST

During a search of Paigly's and Salgado's apartment after their arrests on January 26, police found a black briefcase containing a collection of loose-leaf pages with red writing that appeared to be gang-related.

a. Gang Roster

One of the documents was a roster listing monikers for members in the following order: Cramer, Paigly, Mendez, Wreath, and Rios. Each moniker was followed by a female name and to the right of the female names, “MEMBERS ONLY CODES!” was written and underlined. Below that list was written “ASCIATES” and another list of monikers (not all of whom were identified at trial): Ruben Orozco (“Trigger”), Joshua Morreira 6 (“Huero”), Rumaldo Perez (“Mr.”), Marcus Hill (“Nester”), and DeSantiago (“Spray”). (Capitalization omitted.) To the right of the monikers were two-letter codes, starting with M and ending with the first initial of the moniker. Mendoza recognized the handwriting on the document as that of Ronald Wreath, who had belonged to his regiment. A handwriting expert drew the same conclusion after studying samples of Wreath's handwriting. It was Livingston's opinion that this document was a roster of the members and associates of Cramer's regiment. The indictment alleged the first overt act in furtherance of the conspiracy was that Paigly “possessed documentation of members and associates of the Nuestra Familia Street Regiment” on January 26.

b. Gang Protocol

The second document in Wreath's handwriting was titled “REGIMENT POLICIES & SOLDADO PROTOCAL.” According to Livingston, the protocol document likely described how NR members were to follow NF authority out on the streets. The red writing reflected a Norteño association and it used language typical of NR members, such as “elite circle, “hermanos,” and “O.”

c. Pay/Owe Ledger

A third set of documents consisted of several pages of a spiral notebook and loose-leaf pages found inside the notebook. All the pages appeared to Livingston to be written in the same red ink. A handwriting expert determined that Paigly had written many, but perhaps not all, of the entries.

One loose page included the following 7 : “Amount due 9900”; “Paid 8660 00”; “first issue was 1 lb”; “Dreamer was issued 1/2 lb. at a expected net of 5600 + 1/2 o. 6000”; “What was brought back was 4000 - with the balance due of 200000 and JAM. took 2 oz. and 1/2 at a expected amount of 2000.” Another page stated, “Dreamer was given 3 oz. at 800 a piece.” Another loose page had the word “Locs” on the first line, listed “5 oz. 400000,” and referenced 4.5 ounces. Several pages referred to deposits or payments by Thornhill. Another loose page had “600 for dues” in a list of other numbers. One bound page was headed “1/19/07.” Under “BANK” was written “3700.”

According to Livingston, the entire notebook was a pay/owe ledger “documenting how much drugs they received, who has it, and who owes what.”8 Livingston testified that the amounts listed were consistent with the street value of methamphetamine in January 2007, that the reference to dues was consistent with monthly gang dues being $200 per member, and that the reference to a bank was to the NF bank.

3. PHONE CALLS AFTER PAIGLY'S ARREST

The jury heard excerpts from several calls Paigly and his girlfriend Salgado made on January 26, the day they were arrested. Salgado called her mother and told her to tell Thornhill or Mendez (“Chone”) that “they found, um, Jaime's stuff in my closet” and “got all information” because “Loc had Jaime's backpack” when he was arrested. She should not tell Wreath (“Shorte”) anything except “I'm just locked up and so is Locs, okay.”

Salgado then called Thornhill and told her the police had found a “pizzo, a scale, and ․ some weed” and that the “other was on me.” Livingston believed that “the other” referred to methamphetamine and “pizo” was slang for a pipe.

Paigly called Thornhill after Salgado and told her they didn't get the “feria.” Thornhill said she had already talked to Wreath (“Shorte”) and DeSantiago (“Spray”). DeSantiago had already “got at the big homie ․ out of town.” Thornhill said there was still money out there. Paigly said Wreath (“Shorte”) owed $3,500, DeSantiago (“Hairspray”) $200, Baron $300, and Josh $660. He also mentioned Lionel without an amount. Paigly told Thornhill she should give what she collected to Mendez (“Chone”). Paigly cursed, saying “[t]hat work [¶] ․ [¶] that got caught up [¶] ․ [¶] [t]hat was ours too.” Thornhill asked if it was “a zipper” and Paigly answered affirmatively. In Livingston's experience, “work” is a common reference to drugs and a zip is an ounce.9

Paigly called Thornhill again. She told him that Wreath (“Short”) was freaking out and needed to call him on a three-way because six “wax” or “racks” were out there. In Livingston's opinion, Thornhill was referring to “racks,” which is common slang for one thousand.10 Paigly said that all he ever had in his possession was two and “the rest is out there on the street.”

4. PHONE CALLS ON JANUARY 27 AND 28

Burns called his mother on January 27 and told her he owed someone he saw in jail “$750 for that ․ truck that I bought” and had until February 1 to pay. He said that everybody was partying and “stuck on the damn fuckin' drugs” and not willing to help out. Burns told his mother to call Silva and tell her $300 was coming and asked his mother to pay the remainder. When she asked what would happen if he did not pay, he said, “Oh my god. You don't wanna know.” She replied, “See what happens when you get into those drug things, Eric?” He answered, “Yep, yeah ․” It was Livingston's opinion that Burns owed Cramer for an ounce of methamphetamine.11

On January 27, Rodriguez called Silva and told her to “[g]et a pencil” because “your boy here is stressed the fuck out.” “He” would probably call her, “but he wants me to do all this shit first.” Rodriguez told her to call a phone number he provided for Andrew Perez (“Drew”) and also to call Rios (“Syces”) and “the home girl” “D-E-E. “Or April, ASAP,” as “[i]t's urgent they call you.” When either called back, Silva was to tell them: “Sylvia says she needs ․ [¶] ․ [¶] 800 [¶] ․ [¶] sent to three of her own [¶] ․ [¶] or else, ․ one of Sylvia's troubled children [¶] ․ [¶] will miss their birthday.[12 ] [¶] ․ [¶] Sylvia is sick at the thought [¶] ․ [¶] of losing a birthday [¶] ․ [¶] for Angie. [¶] ․ [¶] Please be fast [¶] ․ [¶] as it's on the clock now [¶] ․ [¶] for February 8th. [¶] ․ [¶] The info for the three [¶] ․ [¶] will be sent to [¶] ․ [¶] the spot on the Southside [¶] ․ [¶] that Drew has often [¶] ․ [¶] been to with Sylvia. [¶] ․ [¶] Because Drew has nothing against you. [¶] ․ [¶] Keep this to yourself [¶] ․ [¶] so it doesn't worry Angie. [¶] ․ [¶] If you must[,] use the sale of Sylvia's truck to cover the cost. [¶] ․ [¶] Sylvia sends her love to all the kids [¶] ․ [¶] and misses talking to their neighbor Shel ․”

Rodriguez continued that his “home girl Sylvia” was stressed out about “Shel” because she was “MIA ․” “The home boy wants ․ you to find out [¶] ․ [¶] if his kids are all accounted for [¶] ․ [¶] including [¶] ․ [¶] my daughter Shel[,] as she was my three-way route.” Silva should be receiving some of the $800 soon. Rodriguez said, “I think home girl doesn't want to be – like completely depend on the Ready guy.” Something should be coming soon, but get the rest “[e]ither from her truck being sold [¶] ․ [¶] or from the bank [¶] ․ [¶] before Wednesday.” Rodriguez said that was the end of that message.13 Rodriguez called Silva again on January 27 to give her the booking number and PFN of James Cramer, calling him “my boy James.”

Livingston testified that he thought Rodriguez was reading messages to Silva. Livingston and Mendoza both opined that it is common for the NF to use female names as codes for male members to conceal their identities. Mendoza opined that missing a birthday is “probably [to] be killed” and that the NF has killed a person for less than $800. Livingston thought “ ‘one of Sylvia's troubled children’ ” meant a member of Cramer's regiment who would be in bad standing if he did not pay his debt. He believed “D-E-E” referred to Damien Mendez, “Drew” was Andrew Ray Perez, “Angie” was Eric Burns, and “Syces” was Paul Rios.14 Livingston was not sure to whom “April” referred, but later noted that when Cramer learned of Paigly's arrest, he made no more reference to Silva contacting April.

Cramer himself called Silva on January 27. Silva mentioned Cramer being stressed and he said he would be better once the “money is straight.” Silva said that Burn's (“Ready's”) mother had told Silva someone would call her about money, “[l]ike three.” Cramer said it was a start. Cramer told her to tell DeSantiago (“Spray”) that he was trying to contact April or Mendez (“Dee”) for an “extremely urgent” matter. Cramer predicted that he would be sent to Santa Rita for a 90-day drug dry out, which he said was good because he was sliding. Silva relayed a message from DeSantiago that Paigly (Locs) had been “busted” for sales and Cramer said he would “pull him in here with me.”

Cramer wanted Silva to find out if DeSantiago was still going to buy his truck because he needed “money up front right now.” He asked her if she got the “three, uh, hookups [¶] ․ [¶] for the money orders?” He said someone would be giving her “the 800” and she should also receive “the twenty-five hundred for the truck.” She should touch base “with my girl Dee and find out if we're okay. If not, if I have to use more of my money, then he needs to know that – that I'm taking care of one thing.” She should tell Spray the situation. He told her to let Rodriguez know whatever she learned “and he'll let me know ․”

Burns called his mother on January 28, who told him she would loan him $450. He told her to tell Silva that she was going to send her $450 and that $300 was coming from one of his other friends.

5. PHONE CALLS BY PAIGLY ON JANUARY 29

Paigly, identifying himself as Locs, called Thornhill on January 29. Thornhill had Cramer's truck and was bringing it to Silva. She said DeSantiago (“Spray”) gave her 140; Paigly said he owed her two. Thornhill said she needed Jaime to call her. Thornhill added Wreath in a three-way call and they discussed amounts owed by various people.

In a second call, Paigly told Wreath that he should give all the money to Thornhill. Wreath said that he was “already striking with another,” working somewhere else as he was requested. He was to pull Mendez (“Cousin”) and others “over there till what's his name gets out ․” In Livingston's opinion, an NF member in another regiment had directed Wreath and others to work in that regiment since Paigly and Cramer were in custody. Paigly told Wreath “67” was owed and Wreath said he had 64. Paigly said he had “$300 books.”

During a third call, Thornhill told Paigly she had collected from one person, had talked to two others, but had not spoken to Cramer yet.

6. PHONE CALLS BY CRAMER ON JANUARY 30

Cramer called Thornhill several times on January 30. Thornhill had Cramer's truck and Silva had his other belongings. Thornhill asked Cramer what was in the backpack, because “paper” was confiscated along with the money. Cramer said there “was a schedule of, ․ what [¶] ․ [¶] [h]ad been dropped off with me, and what I had turned in ․” Thornhill put Wreath on the phone and Cramer told him he needed to get all the funds and make sure they go where they were supposed to. Wreath, who repeatedly called Cramer “sir,” answered, “Yeah, yes, sir ․” Cramer said first and foremost “ ‘Adela’ [¶] ․ [¶] gets paid up front,” and until that was taken care of, “do not [¶] ․ [¶] [m]ake any more reservations.” Livingston believed that Cramer meant they should not accept any more fronted drugs until their drug source was paid. Cramer said that “my girl Angie, your sister, is in some serious hot water,” and that he needed it covered “by the sale of my truck, or by um, our reserve, right?” Cramer said he was with Burns (Listo), who was supposed to be rounding up “the 750 that he owes me,” which Cramer “was gonna utilize to take care of Angie's bill.” That “bill is due by next Wednesday, or it's over for her.”

When Wreath expressed confusion about who Angie was, Cramer explained that Adela was in Monterey and Angie, who owed “800 bucks,” “is on the shelf.” Cramer said he gave Burns (“Listo”) “until tomorrow to come up with his ․ back rent, because he boned out without paying me my full rent,” which he needed “to cover your sister, right?” Cramer asked if they still had “some reserve” and told Wreath to “make sure you cover your sister, because she's on a deadline. Literally, she's on a deadline, okay?” Wreath should make no further reservations until they get paid.

Wreath told Cramer they were waiting to pick it up because we did not want to be “[r]unning around with that feria.” Livingston believed that “feria” meant money. Cramer said there were two issues: the deadline; and “what we owe to take care of our last reservation.” Cramer had sent out a letter “to Drew's uncle's in-laws” with “the addresses from where you're gonna send ․ Angie's [ ] payment.” Cramer said “finish ․ accumulating that ․ 750, and, and throw in 50 bucks for me because [¶] ․ [¶] [i]t's gotta be a round 8.”15

During Cramer's second call to Thornhill and Wreath, he told Wreath his “homeboy Manos sends his to you. He's my cellie right now.” At the time, Frank “Manos” Gutierrez was Cramer's cellmate. Cramer told Wreath to “take care of your sisters.” Cramer needed them to take care of a “compact dis[c] player” that he left with his roommate, referred to “racks” and said if “one track brings ․ one rack,” but they cannot get “a full rack, ․ we sell it for eight [¶․¶] [and then] we're entitled to four and [¶] ․ [¶] it has to be logged.” Livingston opined that Cramer was explaining that his former roommate (Marcus “Nister/Nester” Hill) could keep half of his profits, but had to give the other half to the regiment. Livingston also said a rack meant $1,000, the approximate street value of an ounce of methamphetamine at the time.

Cramer continued that “the other homey” in jail with Cramer was supposed to take care of the compact discs, but that was no longer the case. They were trying to assist the other person who was “on the shelf” because he did not have the eight. Cramer was “with ole' boy and ole' boy is saying ․ it's either eight or him” but Cramer could not “let go like that.” Cramer said DeSantiago (“Spray”) “was supposed to have got one of those ․ tracks that ․ my ․ roommate [¶] ․ [¶] was going to be working with.” Wreath said Thornhill had been helping out with Paigly, while Wreath had been with Hill and was relaying everything to Mendez.

Cramer called Thornhill a third time and had her make a three-way call to Hill. Cramer talked to Hill about Cramer taking care of an obligation for “Lurch.” Livingston was not sure who “Lurch” was, but he thought they were discussing the obligation of an NR member on the street to send money in to two incarcerated NR members. Cramer asked if DeSantiago (“Spray”) had taken care of the 350, and Thornhill answered that he gave her “a bill forty.” Hill confirmed that he still had all the “electronics” Cramer had left behind and Cramer said Hill could sell it to cover “the rest.” Cramer said he had an emergency that required “any other money that I had coming through me.” Cramer told Thornhill that any money coming from DeSantiago was supposed to go to Hill. Cramer told Hill that Thornhill could help him get rid of some of the “electronics.” Cramer appeared to ask Hill to get “[w]hatever he has that he hasn't sold” back from DeSantiago. He told Hill to “let Shel help you and she can probably move whatever we need to cover my rent.”

During another phone call from Cramer to Thornhill, he mentioned “Loc's girl” being pinched “with all of this.” Cramer told Thornhill he needed “like four compact dis[c]s” that he left in a safe, which were his personal property and should be given to “my home girl [¶] ․ [¶] A.” Mendez (“Cousin”) then came onto the line. Cramer said Burns (“the homeboy L”) was with him, owed him “75,” and was trying to get him to pay the home girl who lives in Santa Clara, which would go toward covering her debt of “eight bills.” Livingston believed the home girl was Silva. Cramer told Mendez to “keep our reservations to an absolute minimum ․”16

7. ARREST OF RONALD WREATH ON JANUARY 30

Wreath and a female passenger (Sylvia Lechuga) were arrested near Wreath's truck on January 30. Police found a baggie containing about 6.7 grams of methamphetamine in Lechuga's jacket pocket during a search incident to arrest. No drugs were found on Wreath.

8. PHONE CALLS AND LETTERS BETWEEN FEBRUARY 1 AND 3

On February 1, the day after his arrest, Wreath called Marcella Marin, who added Thornhill. Wreath told Thornhill “the old man sent” a letter with an address and that “whatever money is owed,” which “should be like eight hundred,” must be paid by Thornhill “tonight or tomorrow.” All money Thornhill was collecting should go to that debt first. She should hold onto anything else.

Sergeant Livingston searched Salgado's residence on Ravenscourt on February 13 and found numerous envelopes addressed to that address and several letters. A letter postmarked February 1 was addressed to “ ‘Carol Paigly’ ” from Paigly's Personal File Number. Paigly wrote that Morreira (“Huero”) would be dropping off 350 that she should use for utilities. He instructed her that the rest should be set aside and given to Mendez (“Chone”) and that she should “ ‘make a note of who has dropped off money.’ ”17

Wreath called Candice Andrews on February 3, identified himself as Shorte, and Andrews answered affirmatively when Wreath asked if Thornhill had come to “get the other two rims.” Livingston inferred that a rim was an ounce of methamphetamine.18

9. PHONE CALLS BY AND FOR CRAMER ON FEBRUARY 4

On February 4 Gutierrez made several telephone calls and Cramer joined the line during the last two. Gutierrez called a woman named Vanessa, who added Silva (“Huera”) to the call. Gutierrez told her that “Jaime's on the bus today” and was “going to Rita.” Gutierrez asked if “Old Boy” had come through with “that ticket” for “the third,” and Silva said she received a call that day from Burn's (Ready's) mom saying it was on its way. Gutierrez repeated aloud what Silva was telling him. Gutierrez said “our big brother” was sending her a letter. Gutierrez said “me and Old Crazy Guy are gonna try to ․ saddle up.” According to Livingston, this was a disguised reference to “Loony” Rodriguez. Gutierrez said that a letter going out to Silva would explain everything and that “he” (referring to a third person) had received her letter.

In another call from Gutierrez to Vanessa, Vanessa added Thornhill to a three-way call and Cramer asked Thornhill about Mendez. Thornhill said Mendez was not taking care of his responsibilities. Cramer said: “If I have to get at other people in order to fuckin' get him to fuckin' fall in line, that is what he should be made aware of.” Thornhill said she would sell Wreath's “rims,” which would add up to a little over two. Cramer told her that “I haven't filled this Wednesday to cover that $800 bucks[,] right.” A man “over here” was telling him that it was on the way, but “it has to be done in full.” Cramer told her to cover “it with what we have” and to work with his ex-roommate on “the 20 tracks that I left him.”

Thornhill told Cramer that Paigly's house was visited and “whatever [ ] information documents and that in there, they're gone.” Cramer told her to turn over any further funds she picked up to Silva, and if she needed to keep herself “in work, that's fine. Just make sure you keep track of all of the [cents], all of the paperwork ․” Cramer wanted Thornhill to pick up “[p]aperwork and my compact disc collection.” Livingston explained that “work” and “product” commonly refer to methamphetamine.

10. LETTERS AND TELEPHONE CALLS BETWEEN FEBRUARY 5 AND 12

Two letters from Paigly found by Livingston during the search of Salgado's residence were postmarked February 5. In one, Paigly wrote that it was important for Salgado (“Carol Ann P.”) to step into his shoes. In the other, Paigly wrote that he needed her to “get on every ones ass and let them know Im getting pissed and the money needs to come in now.” (Bold in original.) The second letter listed amounts owed by various people, including Barron, Morreira (“Huero”), Josh, Shell, and Chon. The letter was signed, “LOC$.”

Another letter, postmarked February 8, from Paigly to Salgado (“C. Paigly”), enclosed another “letra” “for Betsie.” A separate page was addressed to “FELONY.” In Livingston's opinion, that letter was meant for Mendez. It began with language typical of NR communications. “Saludos loved one, love y respectos extended to you from behind these walls.” Paigly wrote that because Thornhill “has been more problems then need be[,] ․ I have directed my fiance Carol to retrieve all monies.” Paigly acknowledged, “Im responsible for close to 700000 & all of its accountable on paper.” He asked for help getting “these muthas to pay.” He signed the letter “RHYNO” with a star above and below. On another page in the envelope was a listing of who owed what: “still out Chon –930 – Shelby – 400 – Josh – 660 – Barron – 300 – Huero – 350 – Shorte – 3500.”

When Gutierrez called Silva on February 9, she told him Thornhill (“Shel's”) was going to give her 375 and that Silva had “25 right here ․” She needed “Victor's hook up again” and thought “DB” would have it. Livingston believed that “DB” meant “Dancing Bear” (Miramontes). Victor was Victor Esquibel, an NF member. In the background, Gutierrez called out to “JR” and Gutierrez relayed the CDCR number for Esquibel to Silva. Silva told Gutierrez that Thornhill was working on money that “he still ․ owed to G.” According to Livingston and Mendoza, the reference to “JR” was also to Miramontes because he is a junior. Livingston opined that they sought Esquibel's CDCR number because the number is necessary to put money on a prisoner's account. Mendoza recalled overhearing Gutierrez shouting to Miramontes for information and Miramontes shouting something back.19 Mendoza testified that Gutierrez told him that when Cramer left the jail, he “left all his directives with” Gutierrez. Gutierrez “was the one calling the females basically, keeping track [w]hat was owed out there.”

11. PHONE CALLS ON FEBRUARY 17 AND 19 AND MIRAMONTES' RELEASE FROM CUSTODY

During a call on February 17, Thornhill told Wreath that Mendez had been arrested for a parole violation. Thornhill had not sold his “rims” yet and Wreath said they needed to be sold “for the old man.” Wreath told Thornhill to sell the rims for six because he needed money on his books. Livingston believed that “rims” meant methamphetamine.20

Gutierrez (identifying himself as “Manos”), called Thornhill on February 17 and told her that J left him in charge of some things. Thornhill said she had bills to pay and not enough income and Gutierrez said he could not let that happen because he and Rodriguez were left to “watch over” her.21

According to Mendoza, after Miramontes left the jail on February 27, Rodriguez and Gutierrez were left in charge, which included maintaining a number of kites. Mendoza saw a reference to Cramer as “Sylvia” in one of the kites.

12. THORNHILL'S ARREST ON MARCH 7

On March 7, Livingston searched a mobile home that had been occupied by Thornhill. Thornhill had a cell phone with phone numbers listed for Alysia Silva and also numbers for monikers associated with Cramer, Paigly, Mendez, Wreath, Hill, and DeSantiago. A search of another property associated with Thornhill yielded letters, a scale with suspected methamphetamine residue, and a note referring to “130 for a ball.” Livingston testified that a “ball is street slang for eight ball, which is street slang for eighth of an ounce,” and that $130 was the approximate price of one-eighth ounce of methamphetamine.

In Thornhill's vehicle, officers found a cardboard box containing Wreath's property, sandwich bags, and two containers that tested positive for methamphetamine residue. Inside the trunk of the vehicle was a hide-a-key container containing about one-third gram of methamphetamine. Thornhill was arrested that day.

13. SEARCH OF ALYSIA SILVA'S RESIDENCE ON MAY 7

Based on the recorded phone calls, Sergeant Livingston and other officers searched Alysia Silva's Sunnyvale apartment on May 7 and found several letters.

Two letters from March and April 2007 appeared to be from Cramer. The March letter had a series of instructions for Silva. Cramer wanted Silva to obtain reports from Paigly and Wreath (“Locs” and “Shorte”) about four CD's and “all financials ․” The letter also stated: “ ‘If J can get things up and running [ ] with some o[f] the P.F.'s you have keep him busy and take any necessary steps so long as it's continue generating with an emphasis on security.’ ” Livingston believed this instructed Silva to have her boyfriend Joseph Martinez sell part of 20 ounces of methamphetamine. Livingston was not sure whether “CD” was also a reference to methamphetamine.22

An April 2007 letter was addressed to Silva from “Mr. Silva” and a handwriting analyst identified the writer as Rodriguez. The letter said “when that old man left I got my job back, so its me and my G stayin on top of this shit day and night.” Livingston thought this referred to Miramontes's departure from jail, at which point Rodriguez and Gutierrez took charge of a section of the jail. The letter relayed a message (apparently from Paigly) about amounts owed by various people, including Wreath (“Shorte”), Mendez (“Chone”), Thornhill, and Paigly (“me(Locs)”). (Capitalization omitted.) That message also stated “the C.D.s are safe at Ravenscourt.”23

In Silva's closet was a photograph of Rodriguez, signed “ ‘Big Loony S.J.G.’ ” According to Livingston, S.J.G. meant San Jose Grandes. Cramer's truck was located in the parking lot of Silva's apartment. In his truck, among other things, was a letter from Antonio Guillen.

14. MONEY ORDERS TO PELICAN BAY STATE PRISON

According to the Pelican Bay State Prison Trust Office Supervisor, inmate trust accounts function as bank accounts. A money order for $200 from Alysia Silva was deposited on February 8 into the account of Antonio Guillen. According to Livingston, Mendoza, and Lawson, Guillen was an NF general in charge of street operations in Santa Clara County. A money order from Silva's address for $240 was deposited in Victor Esquibel's account on February 26. The Pelican Bay Prison Trust Supervisor was not aware of any unusual activity regarding amounts or frequency of deposits in the accounts of Esquibel or Guillen.

II. SUFFICIENCY OF THE EVIDENCE

On appeal, Rodriguez argues there was insufficient evidence (1) to demonstrate a pattern of criminal gang activity by a criminal street gang; (2) to support the conspiracy charge; (3) and to prove his specific intent to promote, further or assist a criminal street gang.

In reviewing a claim of insufficient evidence, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The standard is essentially the same when reviewing a sufficiency of the evidence claim under federal due process principles. (Jackson v. Virginia (1979) 443 U.S. 307, 317–320.) The same standard applies to the sufficiency of the evidence of a gang enhancement (People v. Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar)), and also in cases where the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) “ ‘If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” (People v. Hillery (1965) 62 Cal.2d 692, 702.)

A. PATTERN OF GANG ACTIVITY

Rodriguez argues that the predicate offenses offered were irrelevant because the only relevant offenses would be those committed by a member or associate of the Cramer regiment. Rodriguez's argument is based on the premise that the “criminal street gang” the prosecutor sought to prove existed was “the Cramer regiment.” However, as the Attorney General points out, the prosecutor argued to the jury that “the criminal street gang we're obviously talking about is a Nuestra Familia organization,” with “the Nuestra Raza” being “a sub-organization within this organization.” We review whether the prosecutor presented sufficient evidence that a rational trier of fact could find that the Nuestra Familia organization engaged in a pattern of criminal gang activity such that it was a criminal street gang under section 186.22. (People v. Johnson, supra, 26 Cal.3d at p. 578.)

The existence of a “criminal street gang” is an element of both active participation in a criminal street gang (§ 186.22, subd. (a); Count 2) and the gang enhancement (§ 186.22, subd. (b)) of the conspiracy to sell methamphetamine (Count 1). (§ 186.22, subd. (f).) Subdivision (f) defines a criminal street gang as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) Though that definition has several elements, Rodriguez's appeal challenges only the sufficiency of the evidence supporting the “pattern of criminal gang activity” element. That phrase is defined in section 186.22, subdivision (e), and requires the prosecution to show: “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of” at least two specified offenses; with the most recent offense occurring within three years of an earlier crime; at least one crime occurring after September 26, 1988 (the effective date of the STEP Act); and the crimes were committed either on separate occasions or on the same occasion by two or more persons. (§ 186.22, subd. (e); CALCRIM No. 1401.) As the jury was instructed, a charged offense, coupled with evidence of an earlier offense by a gang member, can establish a pattern. (People v. Gardeley (1996) 14 Cal.4th 605, 625, disapproved on another ground by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)

1. EVIDENCE OF PREDICATE OFFENSES

a. John Mendoza and Patrick Martinez

In addition to documentary evidence about the Mendoza regiment (described in the next section), the jury heard about the operation of that regiment from Livingston, Mendoza, and Patrick Martinez. Mendoza admitted complying with the directions of NF general Cornelio Tristan and setting up a regiment in San Jose after his release from prison in April 2003, which he commanded for eight or nine months. Almost all members of the regiment were NR members.

At its peak, Mendoza's regiment sold 60 to 70 pounds of methamphetamine a month. The seller kept part of the proceeds and Mendoza got $2,000 to $4,000 back per pound. Mendoza was obligated to send one-quarter of his profits back into the organization in prison. That money eventually totaled $70,000 to $80,000. On cross-examination, he said he paid taxes to the NF and later elaborated that the 25 percent of profits he sent to the NF was “considered taxes to the N.F.”

Patrick Martinez was facing a possible prison term of over 19 years for conspiring to sell methamphetamine and active gang participation, along with sentence enhancement allegations when he agreed to testify truthfully in exchange for use immunity and the prosecutor's promise to dismiss the gang charges. Martinez testified about his role in the Mendoza regiment and other NR regiments. Martinez began selling methamphetamine for Mendoza's regiment in January 2004. He paid $200 monthly dues to the second in command, Art Hernandez.

b. Documentary Evidence

The prosecutor produced documents for the limited purpose of proving a pattern of gang activity by the NF. The court explained to the jury that the pattern offenses were relevant to “that gang allegation to prove the gang has this pattern” and also to proving the active participation charge in Count 2.

The prosecution introduced evidence from four prosecutions and had Livingston briefly summarize them. In the first prosecution, Mike Reyes pleaded no contest to six counts of armed robbery involving personal use of a machine gun from conduct occurring on two dates in 1994. In the same case, Eddie Perales pleaded no contest to two counts of armed robbery involving personal use of a machine gun occurring on a different date in 1994. Livingston opined that these robberies were committed for the benefit of the NF. In a second case, a jury convicted Guillermo Solorio of the 1998 first degree murder of Vincent Sanchez involving the personal use of a handgun for the benefit of a criminal street gang. According to Livingston, the NF had ordered Sanchez to kill someone else, and when he refused, the NF had Solorio kill Sanchez.

In a third case, Santos Burnias pleaded guilty to the 1999 first degree murders of Robert Viramontes and Albert Avila. Antonio Guillen pleaded no contest to the first degree murder of Viramontes. David Escamilla pleaded no contest to both murders. Livingston opined that Viramontes was killed for dropping out of the NF and for speaking against the gang. Livingston believed that Avila was killed for failing to dispose of evidence related to Viramontes's murder.

The fourth case was the 48-count indictment of Mendoza and 11 alleged coconspirators. Four defendants were convicted by plea of conspiring between January 2004 and April 2005 to sell methamphetamine for the benefit of a criminal street gang. In Livingston's opinion, three of those four defendants were NR members, and the fourth was a Norteño gang member and NF associate.

2. EVIDENCE THAT THE NF ENGAGED IN A PATTERN OF CRIMINAL GANG ACTIVITY

a. The Charged Conspiracy Supported the Gang Finding

The jury was properly instructed that a conspiracy to commit sales of a controlled substance could be a pattern offense. The Attorney General suggests that the convictions of three codefendants of conspiracy to sell methamphetamine (Count 1) “were sufficient to prove two or more predicate offenses,” as “[t]hey were each principals in that offense, whether or not they aided and abetted the target offense of selling methamphetamine.”

But a conspiracy is, by definition, a crime committed by “two or more persons.” (§ 182; People v. Johnson (2013) 57 Cal.4th 250, 257 (Johnson).) The indictment in this case charged all defendants with participating in one large, ongoing conspiracy to sell methamphetamine. As the crime of conspiracy cannot be committed without a mutual agreement, a single conspiracy to commit a pattern offense, regardless of the number of coconspirators, must be regarded as one offense. The charged conspiracy could thus be considered by the jury as one predicate offense.24

b. Mendoza Regiment Crimes Supported the Gang Finding

Rodriguez argues that the prosecutor presented insufficient evidence to show the existence of a criminal street gang because there was no evidence of any link between the perpetrators of the predicate offenses and the Cramer regiment.

After briefing was completed in this case, the Supreme Court decided People v. Prunty (2015) 62 Cal.4th 59 (Prunty), which addressed “what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets.” (Id. at p. 67.) The court reviewed the definition of “criminal street gang” in section 186.22, subdivision (f) and determined that “where the prosecution's case positing the existence of a single ‘criminal street gang’ ․ turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets.” (Prunty, at p. 71.) The court decided that the statute's reference to an “ ‘ongoing organization, association, or group’ ” is a “distinct requirement” and cannot be satisfied merely by showing “shared colors, names, and other symbols.” (Id. at pp. 74–75, quoting § 186.22, subd. (f).)

The Prunty court presented an expressly non-exclusive list of methods prosecutors could use to establish that “the ‘gang’ that the defendant sought to benefit, and the ‘gang’ that the prosecution proves to exist, are one and the same.” (Prunty, supra, 62 Cal.4th at p. 75.) Prosecutors may provide evidence that multiple subsets are connected by some form of hierarchy. Examples include evidence that multiple subsets: each had a “ ‘shot caller’ ” who answered to a higher authority within the chain of command; engaged in independent activities that benefit the same higher ranking individual or group (e.g., “various Norteño subset gangs that share a cut of drug sale proceeds with the same members of the Nuestra Familia prison gang”); were governed by the same bylaws; acted to protect the same territory; or conducted “independent, but harmonious, criminal operations within a discrete geographical area ․” (Id. at pp. 77–78.) Absent evidence of a hierarchy, prosecutors may provide evidence of “collaboration, unity of purpose, and shared activity” sufficient to support a finding of a single organization, association, or group. Examples include evidence that multiple subsets worked in concert to commit a crime; professed or exhibited loyalty to one another; had fluid or shared membership among subsets; or had a “ ‘liaison’ ” who coordinated relations between subsets. (Id. at p. 78.) Finally, prosecutors may demonstrate that multiple subsets “manifest specific behavior” that suggests a shared identification with a single group. Examples include evidence that multiple subsets within a geographic area require prospective members to perform the same initiation activities, or that “a certain Norteño subset retaliates against a Sureño gang for affronts that gang has committed against other Norteño subsets.” (Id. at pp. 79–80.)

Consistent with Prunty, the prosecutor demonstrated that, like the Cramer regiment, the Mendoza regiment had sold drugs and shared part of the sale proceeds with the Nuestra Familia organization. (Prunty, supra, 62 Cal.4th at pp. 75, 77–78.) There was ample evidence that the Mendoza regiment had conspired to sell methamphetamine to make money for the NF just two years before the charged offenses commenced. NF member Mendoza said so, as did NR member and former regiment member Martinez. There was also documentary evidence that multiple members of Mendoza's regiment were convicted of that conspiracy. The conspiracy by the Mendoza regiment corroborated Mendoza's opinion that drug sales were a primary activity of NF regiments. The activities of the Cramer regiment were apparently structured on the same business model, albeit on a smaller scale; the regiments also had a common member, Ronald Wreath.

We conclude that the Mendoza regiment conspiracy plus the charged conspiracy provided evidence of “two or more” enumerated offenses such that sufficient evidence supported the jury's apparent conclusion that the NF was a criminal street gang. In light of this conclusion, we do not address the parties' arguments regarding the admissibility of Paigly's current and prior drug offenses as predicate offenses, nor do we consider the probative value of robberies in 1994 or murders in 1998 and 1999. (However, we will address in Part III.B.3. the undue prejudice associated with the evidence of those robberies and murders.)

B. EVIDENCE SUPPORTING THE CONSPIRACY CONVICTION

Rodriguez argues that the sole goal of the conspiracy was to sell methamphetamine and that there was no evidence that the conspiracy also “included the collection of dues, taxes, and other debts accruing in the operation of the Cramer regiment ․” (Emphasis omitted.) Rodriguez also challenges the sufficiency of the evidence that he ever “agreed to commit the crime of selling methamphetamine ․” (Emphasis omitted.) Rodriguez contends that the prosecution did not provide evidence of methamphetamine sales after Rodriguez's first relevant jailhouse phone call, meaning he could not be convicted of the conspiracy. But the objective of the conspiracy was broader than merely methamphetamine sales, and sufficient evidence supported Rodriguez's guilt.

“ ‘To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, “a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.” [Citation.]’ (People v. Vu (2006) 143 Cal.App.4th 1009, 1025, italics added.)” (Johnson, supra, 57 Cal.4th 250, 264.) An overt act may be circumstantial evidence of the existence of an agreement. “The agreement may be inferred from the conduct of the defendants in mutually carrying out a common purpose in violation of a penal statute.” (People v. Cockrell (1965) 63 Cal.2d 659, 667.)

“[A] conspiracy can have multiple criminal objectives.” (People v. Jasso (2006) 142 Cal.App.4th 1213, 1222.) An agreement to commit a series of crimes incidental to a single objective may amount to but one conspiracy. (People v. Vargas (2001) 91 Cal.App.4th 506, 555.) A conspiracy is usually regarded as continuing until the target offense is committed or abandoned (People v. Hardy (1992) 2 Cal.4th 86, 143), and the fact-finder must determine when a charged conspiracy has ended. (People v. Saling (1972) 7 Cal.3d 844, 852.)

1. THE PROSECUTION'S THEORY OF THE CONSPIRACY

Rodriguez argues that the sole objective of the conspiracy was the sale of methamphetamine. But a sale is ordinarily an exchange of goods for money (People v. Gutierrez (1962) 207 Cal.App.2d 529, 531 (Gutierrez)), meaning it is not completed until payment is received. In this case, there was evidence that the regiment's sales of methamphetamine had an additional objective beyond simply collecting payments: sending a portion of the proceeds from sales to incarcerated NF leaders. The prosecution theory, consistent with that evidence, was that the conspiracy had three main objectives: selling methamphetamine, collecting payments for previously distributed methamphetamine, and satisfying a monetary obligation to NF leaders.

The clearest objective of the conspiracy described by the prosecutor was “the goal of the conspiracy, which is to sell methamphetamine.” The prosecutor's argument recited evidence that the conspiracy to sell methamphetamine continued after the arrests of Paigly and Wreath in January 2007, including statements made in numerous phone calls and letters.

The prosecutor indirectly described a second objective of the conspiracy as collecting payments for methamphetamine sales. Among other evidence, the prosecutor referenced a letter Rodriguez sent to Silva in May 2007 where he listed amounts owed by various people. The prosecutor argued Rodriguez was “basically passing on” details from Paigly about what was “owed to the organization ․”

A third objective of the conspiracy was to satisfy an urgent NF obligation of $800 by February 8, 2007. The prosecutor argued that Cramer instructed Rodriguez to call Silva about collecting money owed to the regiment and sending contact information to her for three prisoners in Pelican Bay. The prosecutor argued it was clear from those calls that “Mr. Cramer's having Mr. Rodriguez make phone calls for him to conduct business.”

The prosecutor's three-objective theory of the conspiracy was consistent with the jury instructions. The trial court instructed the jury that “the target act of the conspiracy was the sale of controlled substance methamphetamine.” The jury was also instructed that “[s]elling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value.” (CALCRIM No. 2300.) The jury was instructed to determine whether there was evidence of the charged conspiracy or other separate and independent conspiracies, and, if they found a conspiracy, to determine its nature and members.

a. Evidence of the Ongoing Nature of the Charged Conspiracy

There was substantial evidence that the conspiracy had the three primary objectives identified by the prosecutor: selling methamphetamine, collecting payments for previously distributed methamphetamine, and satisfying a monetary obligation to NF leaders.

Collecting payments and identifying who owed what was the main theme of a number of calls and letters by Paigly, the regiment's bookkeeper, including two phone calls to Thornhill on January 26, a letter to his girlfriend, Salgado, postmarked February 5, and a letter to Mendez care of Salgado postmarked February 8. Wreath mentioned an urgent need to pay $800 in a February 1 call to Thornhill. Wreath also discussed the prospect of Thornhill selling more methamphetamine in a call with Candice Andrews on February 3, and in a call with Thornhill on February 17. Wreath told Thornhill to sell his rims “for the old man,” referring to Cramer.

Regarding collecting dues and sending money to NF leadership, there were references to dues in Paigly's ledger. Mendoza explained that the amount of taxes owed depended on the profitability of a regiment, and that regiment members were expected to pay dues to the NF leadership. Whether the $800 payment represented dues, taxes, or something else, Cramer treated it as a regimental obligation to NF leaders that was ongoing after Rodriguez joined the conspiracy.

Calls by and on behalf of Cramer and a letter from Cramer to Silva covered all three objectives of the conspiracy. The topic of collecting $750 from Burns and sending $800 to three incarcerated NF leaders was discussed in several calls, including a call from Cramer to Silva on January 27, a January 30 call to Thornhill and Wreath, and another call the same day to Thornhill and Mendez. Cramer also mentioned collecting other debts through coded statements during those calls. On February 9, Gutierrez provided Silva with a jail address for Victor Esquibel, asserted to be the third NF leader to be paid pursuant to Cramer's directions.

Regarding additional methamphetamine sales, while Cramer cautioned Wreath and Mendez on January 30 to “keep our reservations to an absolute minimum,” Livingston testified that it meant that they should not accept more fronted drugs until their supplier was paid. It did not necessarily mean, as Rodriguez suggests, that drugs had become unavailable. In the same calls, Cramer suggested to Wreath that Hill had more methamphetamine to sell and that Thornhill could help him.

The conspiracy continued at least through March 2007, when Cramer sent Silva a letter asking Silva for an accounting of what money and drugs were on hand and what debts were outstanding. He also enlisted her help in managing methamphetamine held by Hill, including asking her boyfriend to sell it.

Rodriguez asserts there was no evidence he was aware of certain communications by coconspirators occurring in February and March. However, “ ‘[i]t is not necessary that a party to a conspiracy shall be present and personally participate with his co-conspirators in all or in any of the overt acts.’ ” (People v. Morante (1999) 20 Cal.4th 403, 417.)

b. Evidence of Rodriguez's Role in the Conspiracy

The jury was properly instructed that one element of the charged conspiracy was that Rodriguez agreed with a coconspirator expressly or implicitly that one of them would sell methamphetamine. The prosecutor argued that Rodriguez's role in the conspiracy was to serve as a messenger or information conduit to organized drug sellers and their associates by making phone calls and sending a letter on Cramer's behalf.

Though Rodriguez could not be punished for acts by coconspirators before he joined the conspiracy (People v. Feldman (1959) 171 Cal.App.2d 15, 21–22), he is liable for their later conduct. Though mere association will not prove a conspiracy, “persons can be prosecuted as conspirators if, by buying, selling, or doing some other act, they knowingly participated in a general plan to place narcotics in the hands of ultimate users.” (People v. Van Eyk (1961) 56 Cal.2d 471, 479, italics added; see U.S. v. Sin Nagh Fong (9th Cir. 1974) 490 F.2d 527, 531 [conspiracy to distribute narcotics based on evidence distributor encouraged seller to expand volume of his business while making repeated sales to seller]; U.S. v. Avila (7th Cir. 2009) 557 F.3d 809, 816 [conspiracy to distribute drugs based on defendant providing drugs to others and encouraging others to sell them].)

Here, the evidence showed that members of Cramer's regiment continued to conspire to sell methamphetamine at least through Cramer's letter to Silva postmarked March 19. There would be no doubt that Rodriguez had joined this conspiracy if he had specifically told Silva in the January 27 phone call to raise $800 to send to leaders of the Nuestra Familia gang in the next week, whether by making new sales of methamphetamine or collecting money due for prior sales. Though never that explicit, Rodriguez conveyed essentially that message to Silva through coded and implied statements. Rodriguez explicitly stated the amount of the obligation, $800, and the due date, February 8. Rodriguez made oblique and coded references to the author (“Sylvia”), the intended recipients of the message (“Drew,” “Syces,” “Dee,” “April”), and the intended recipients of the payment (“three of her own”). Livingston opined that Sylvia referred to Cramer, and the names referenced as intended recipients are monikers for Perez, Rios, Mendez, and possibly Paigly, respectively. Rodriguez identified possible sources of the $800, telling Silva she should receive a payment for some of it shortly and should get the rest “either from [Cramer's] truck being sold” or “from the bank[25 ] ․” Silva was told a separate letter sent to a coded location would provide contact information for the three. The identities of two of the three could be inferred from Silva sending money orders to Guillen and Esquibel.

In other contexts, a directive to raise $800 might not reasonably be understood as encouraging drug sales or any criminal behavior. However, when a group's business has been selling methamphetamine, it is reasonable to infer from such a directive that the expected source of the funds will be related to sales of methamphetamine. It is also reasonable to infer that Rodriguez understood that Cramer intended the messages Rodriguez conveyed to mean that Cramer was directing regiment members to raise $800 either by selling methamphetamine or by collecting for prior sales. The message itself did not reference methamphetamine sales, but as a trusted acquaintance Rodriguez would likely infer from the message (if he had not already learned from another source) that Cramer was the commander of a regiment that sold methamphetamine. Even Mendoza—who was estranged from Cramer at the time—had heard Cramer talking in jail about his regiment selling methamphetamine and trying to collect a lot of money on the streets.

Further support for Rodriguez's conviction comes from the April 9 letter he sent to Silva conveying a message from Paigly regarding amounts different individuals owed to him and to the regiment, how much cash and drugs he possessed when arrested, the regiment's books being destroyed, and “C.D.s” being safe in his house. By relaying Paigly's message, Rodriguez assisted Paigly's performance of his duties as bookkeeper of the NF regiment, and it is reasonable to infer that Rodriguez was aware of the importance to the regiment of relaying this message. Relaying the message was an effort to perpetuate the ongoing conspiracy to sell methamphetamine.

Every proven overt act of the conspiracy occurred after Rodriguez joined the conspiracy when he delivered a message from Cramer to Silva on January 26. Rodriguez himself performed two of the overt acts by delivering a message from Cramer to Silva in a January 27 telephone call and by delivering a message from Paigly to Silva in the April 9 letter. There was substantial evidence that Rodriguez agreed that one or more coconspirators would collect money for methamphetamine sales and sell more methamphetamine.

2. SPECIFIC INTENT AND THE CONSPIRACY CHARGE

a. Jury Instructions

A conviction on the conspiracy charge required the jury to find that Rodriguez had three distinct aspects of specific intent. The jury was instructed that conspiracy involves both, “ ‘the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense.’ ” (Johnson, supra, 57 Cal.4th 250, 257.) The jury was also instructed that the gang enhancement alleged in Count 1 required “the specific intent to promote, further, or assist, in criminal conduct by gang members ․” (CALCRIM Nos. 252, 1401.)

b. Evidence of Rodriguez's Specific Intent

Just as an agreement to commit a crime may be established by circumstantial evidence, so may the specific intent to commit the crime. (People v. Fitzwater (1968) 260 Cal.App.2d 478, 488.) The evidence showed that Rodriguez delivered a message intended for members and associates of Cramer's regiment that they should raise $800 by February 8 to send to incarcerated NF leaders. The message identified three possible sources of the payment: a debt owed by Eric Burns, the sale of Cramer's truck, or the regiment's bank. While the message did not explicitly identify Burns' debt or the regiment's profits coming from methamphetamine sales, it is reasonable to infer that Rodriguez understood what business Cramer's regiment was in. There was thus substantial circumstantial evidence that Rodriguez specifically intended that regiment members raise $800 either from the proceeds of completed methamphetamine sales or by completing new methamphetamine sales.

Rodriguez does not dispute that the conspiracy was committed for the benefit of, at the direction of, or in association with a criminal street gang. He instead argues there was insufficient evidence that he had the “specific intent to promote, further, or assist in methamphetamine sales by Cramer regiment members.”

Rodriguez argues that his NR membership, without more, does not prove he specifically intended to promote, further, or assist in criminal conduct on a particular occasion. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) But it is not Rodriguez's NR membership that provided circumstantial evidence of his specific intent, but rather his conduct in conformity with his obligations as an NR member. The telephone message he delivered encouraged members and associates of Cramer's regiment to complete methamphetamine sales. Moreover, he was raising money for incarcerated NF leaders. According to Mendoza, at least some of a regiment's dues are used to extend the influence of the NF, a criminal street gang, by funding new regiments. There was substantial evidence that Rodriguez's motivation was not simply trying to help a friend “get his financial situation straightened out,” as he now claims. He specifically intended to promote criminal conduct by members of Cramer's regiment as well as NF members.

Additional support comes from Rodriguez's April 9 letter, which included a report by Paigly on the collection of some payments, outstanding debts still owed the regiment, and the whereabouts of the regiment's “C.D.s.” By relaying this information, Rodriguez assisted the collection of payments owed the regiment for methamphetamine sales.

We conclude that sufficient evidence supported Rodriguez's conspiracy conviction and the associated gang enhancement.

C. EVIDENCE SUPPORTING THE GANG PARTICIPATION CONVICTION

The jury was instructed that in order to convict Rodriguez of active gang participation, the jury had to find: “1. That a defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity and; [¶] 3. That the defendant willfully assisted, furthered or promoted felonious criminal conduct, in this case, sales of methamphetamine, by members of the gang either by: [¶] a. Directly and actively committing a felony offense; sales of methamphetamine, or; [¶] b. Aiding and abetting a felony offense, sales of methamphetamine.” (CALCRIM No. 1400.) The jury was also instructed: “Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.” (CALCRIM No. 1400.)

Rodriguez contends there was no evidence that he directly sold methamphetamine or that any methamphetamine sales occurred during the relevant time period. As for aiding and abetting liability, he argues there was “no proof that he intended to aid, promote, further, assist any intended sale of methamphetamine.” (Citing People v. Singleton (1987) 196 Cal.App.3d 488, 493.)

A defendant may aid and abet a crime without personally engaging in all the elements of the crime (People v. Morante, supra, 20 Cal.4th 403, 433), and even without being personally present during its commission. Contrary to Rodriguez's argument that there was “both a phantom sale and a phantom seller,” there was substantial evidence that methamphetamine sales in the context of this case involved both distributing the drug in exchange for payment and sending part of the payment to NF leaders. Paigly's pay/owe ledger recorded not only amounts of methamphetamine distributed by specifically identified individuals and payments already received, but also dues paid to NF leaders and payments yet to be collected. Though the ledger did not specify what substance was being distributed, this information was supplied by gang experts as well as evidence that Paigly, Wreath, and Thornhill all possessed methamphetamine when each was arrested. Livingston's expert opinion of the significance of the ledger, if accepted by the jury, was substantial evidence of methamphetamine sales prior to January 26, 2007, and of debts still outstanding on that date. While there were no more ledger entries of methamphetamine sales after Paigly's arrest, there was evidence that Thornhill continued to try to sell methamphetamine after Paigly's incarceration and that Cramer continued to solicit the help of others in selling methamphetamine (including Hill and Silva's boyfriend).

A “sale” includes getting paid. (Gutierrez, supra, 207 Cal.App.2d at p. 531.) There was evidence that the collection of payments by regiment members and associates continued after Rodriguez joined the conspiracy on January 26. Silva sent two money orders to incarcerated NF members, one in January 2007 and one in February 2007. She had been told (by Rodriguez relaying a message from Cramer) to use regiment funds or the sale of Cramer's truck to make these payments. As Silva was still in possession of Cramer's truck in May 2007, there is a strong inference that the proceeds of methamphetamine sales were the source of those money orders and that the sales were completed pursuant to the directives from Cramer that Rodriguez relayed.

The instructions required the jury to find the specific intent to facilitate, promote, encourage, or instigate methamphetamine sales by a gang member as an element of aiding and abetting. (CALCRIM No. 1400.) That specific intent is virtually identical to the specific intent “to assist, further, or promote criminal conduct by gang members” required by the gang enhancement. (CALCRIM No. 1401.) Our finding of substantial evidence supporting the gang enhancement likewise supports our conclusion that substantial evidence supported the intent element of aiding and abetting liability. (Cf. People v. Morales (2003) 112 Cal.App.4th 1176, 1198; People v. Leon (2008) 161 Cal.App.4th 149, 162 [from aiding and abetting robberies by fellow gang members “ ‘[i]t was fairly inferable that he intended to assist criminal conduct by his fellow gang members.’ ”].) Based on the substantial evidence that he relayed a message from the regiment leader to regiment members and associates to send $800 to three NF leaders, Rodriguez facilitated, promoted, and encouraged the completion of methamphetamine sales and thereby aided and abetted those sales.

Defendants Cramer and Paigly generally joined Rodriguez's challenges to the sufficiency of the evidence without providing separate argument. But most of Rodriguez's arguments depend on the evidence of his limited role in the conspiracy and are not directly relevant to the separate roles played by Cramer and Paigly. Their adopted arguments are no more successful than Rodriguez's.

III. THE ADMISSIBILITY OF EVIDENCE

Rodriguez (again joined by Paigly and Cramer) argues that the trial court abused its discretion by admitting statements made by coconspirators after the end of the conspiracy. Rodriguez and Paigly argue that the trial court erred by admitting gang evidence that was either completely irrelevant or more prejudicial than probative, and that its admission denied them due process.

A. STATEMENTS BY COCONSPIRATORS

Rodriguez's challenge to the admission of statements by coconspirators is a variation on the theme that he could not have joined a conspiracy that had already ended. But we have already rejected his factual claim about when the conspiracy ended. The evidence showed the conspiracy continued at least through Rodriguez's April 2007 letter to Silva, which included a report from Paigly regarding outstanding regimental debts, the regiment's “books” being destroyed, and a statement that “the C.D.s are safe” at his residence. These statements showed that members of the conspiracy were still conducting regiment business with the assistance of Rodriguez and that their conspiracy was therefore ongoing. The trial court did not abuse its discretion in admitting evidence of statements by coconspirators up to and including these letters.26 Having found no error, we likewise reject Rodriguez's claim that admission of the statements violated his federal due process rights.

B. GANG EVIDENCE

Rodriguez and Paigly argue that the prosecutor presented evidence of “extreme violence” by Nuestra Familia and Nuestra Raza members that was excessive, irrelevant, and unduly prejudicial.

1. TRIAL TESTIMONY AND OBJECTIONS

Sergeant Livingston testified about three general topics during the trial: (1) the history and evolution of the Nuestra Familia and the Nuestra Raza; (2) letters and recordings of telephone calls; and (3) documentary evidence of pattern offenses. He also offered his opinions about the primary activities of the NF, the gang membership of defendants and others mentioned during testimony, and the gang motivation involved in the conspiracy.

Sergeant Livingston illustrated the history and evolution of the NF and NR with a PowerPoint presentation.27 Livingston's presentation began with a slide showing “a sombrero with a knife through it with drops of blood dripping off of it” that he described as “a common symbol for the Nuestra Familia.” Livingston explained that the NF was born in 1968 when certain prisoners retaliated against the Mexican Mafia by stabbing several members and killing one. The NF has a “blood-in policy.” It was rumored that a person had to kill to belong to NF, but Livingston believed a violent assault for the NF was enough. There is a “blood-out policy. It is a lifetime commitment.” The NF “will try to kill” a person for testifying against the gang. Livingston used the 1999 murder of Robert Viramontes, a former NF member, as an example of retaliation. To “show you how ruthless the gang is,” Livingston testified that after Viramontes's murder, one of the suspects was killed by other suspects for failing to clean up evidence of Viramontes's murder. Perceived traitors may be marked a traitor by having their faces slashed. The NF has a “standing hit list” called the “green-light” or the “bad news” list. The gang expects priority, even over family. Livingston had spoken to an NR member who was asked to kill his own brother, who was a Sureño. By our count, Livingston mentioned killing or murder at least 15 times in his introduction to the NF.

A common path to NF membership is membership in a Norteño street gang. A street gang member who goes into custody may be taught about the gang and sponsored into the NR. Gang members are expected to participate in gang activities while in custody. A man with NR tattoos may be asked by the gang to earn them by stabbing, hitting, or assaulting somebody. Once released from prison, NR members will have more status, but must “carry out the directives from the high command, whether it be assaults, murders, robberies, whatever is asked of them.” After being released, NR members may be directed to a street regiment or given someone to report to. Regiments are controlled by the regiment commander or an NF member. By becoming an NR member, “you are basically saying you are willing to kill for the [NF] organization if you are asked to do so.” The trial court overruled an Evidence Code section 352 objection to Livingston's testimony and acknowledged the defendants' intent that it be a standing objection.

2. JURY INSTRUCTIONS ABOUT GANG EXPERTS AND THE RELEVANCE OF GANG ACTIVITY

Twice during Livingston's testimony, the court instructed the jury that “[i]n formulating his opinion, an expert is entitled to rely upon out-of-court statements” but that the out-of-court statements should only be considered “in evaluating the basis of the expert's opinion and are not to be considered for the truth of the matter asserted.”

The jury was also instructed: “You may consider the evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendants acted with the intent, purpose, and knowledge that are required to prove the gang-related crime in Count Two and the gang allegations alleged in Counts One, Three and Four. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the acts or information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. [¶] You may not conclude from this evidence that a defendant is a person of bad character or that he had a disposition to commit crime.” (CALCRIM No. 1403.)

3. PREJUDICIAL IMPACT OF GANG EVIDENCE

Rodriguez characterizes some of Sergeant Livingston's testimony as describing “Nuestra Familia's history of violence,” and argues that the evidence of the gang's history (including evidence of murders and robberies) “had no legitimate purpose.” Paigly objects to Livingston's introduction to the NF as including “highly inflammatory evidence of marginal relevance,” especially in light of the documentary evidence of four prosecutions that supplied sufficient proof that the NF and the NR are criminal street gangs.

a. People v. Tran (2011) 51 Cal.4th 1040 (Tran)

In Tran, the Supreme Court for the first time “directly considered whether a defendant's offense on a separate occasion might qualify as a predicate offense to establish a ‘pattern of criminal gang activity’ under the STEP Act.” (Tran, supra, 51 Cal.4th 1040, 1046.) One question was whether such evidence is inherently more prejudicial than probative. The court explained that the “ ‘ “prejudice that [Evidence Code] section 352 ‘ “is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.” ' ” ' ” (Id. at p. 1048.)

The court determined “a defendant's gang-related separate offense ․ provides direct proof of several ultimate facts necessary to a conviction,” namely, it establishes “a predicate offense,” the defendant's active participation in the gang, and the defendant's knowledge “the gang engaged in a pattern of criminal gang activity.” (Tran, at p. 1048, original italics.) The court rejected an argument that “the evidence should not be admitted when the prosecution has the ability to develop evidence of offenses committed on separate occasions by other gang members,” finding no authority requiring exclusion of relevant evidence. (Id. at pp. 1048–1049.) However, the court noted that the probative value of predicate offenses “inevitably decreases with each additional offense, while its prejudicial effect increases, tilting the balance towards exclusion.” The court also confirmed that trial courts have “discretion to exclude details of offenses or related conduct that might tend to inflame without furthering the purpose for admitting the evidence.” (Id. at p. 1049.) The court concluded that the evidence before it was not unduly prejudicial, noting that evidence of the defendant's prior offense “was less inflammatory than the testimony about the charged offense ․” (Id. at p. 1050.)

b. The Challenged Evidence was Substantially More Prejudicial than Probative

The prosecution presented documentary evidence of three prosecutions that did not involve a drug crime to prove a pattern of criminal gang activity by the NF.28 The first prosecution resulted in two robbery convictions against Eddie Perales, both involving the personal use of a machine gun; and six robbery convictions (occurring on two other dates) against Mike Reyes, all involving the personal use of a machine gun. Those robberies all occurred in 1994. The second prosecution resulted in one first degree murder conviction against Guillermo Solorio for the benefit of a criminal street gang in 1998 that involved the personal use of a handgun. The third prosecution involved the murders of two people (Robert Viramontes and Albert Avila) on separate dates in 1998 and resulted in the following convictions: two first degree murder convictions against Santos Burnias; one first degree murder conviction against Antonio Guillen (related to Viramontes's murder); and two first degree murder convictions against David Escamilla. Livingston summarized each of those convictions during his expert testimony and the trial court admitted documentary evidence supporting those convictions that included indictments, minute orders, and abstracts of judgment.

Though Livingston's testimony focused on convictions, the jury had access to the indictments in those cases, which alleged criminal activity in addition to what was reflected in the defendants' actual convictions. For example, the indictment related to the murders of Viramontes and Avila also charged Burnias, Escamilla, and Guillen with conspiring to kill Viramontes and contained detailed factual allegations recounting the alleged overt acts of that conspiracy.

The robberies from 1994 and murders from 1998 and 1999 were slightly probative as evidence of pattern offenses, the gang's ongoing nature, and the NF's primary activities. But their probative value was substantially outweighed by their age and their potential for evoking an emotional bias against members of the NF gang. The 1994 robberies involved the use of machine guns. The 1999 murders of Viramontes and Avila were not only documented by court records but also highlighted by Livingston as part of his general introduction to the history and structure of the NF and NR. Livingston stated that the murder of Avila showed “how ruthless” the gang is. The murders suggested a propensity of NF members to kill each other for perceived disloyalty to the gang and for disobeying orders. By contrast, no charges in this case involved violence.

We also agree with Rodriguez and Paigly that Livingston's explanation of the gang's history and structure and his emphasis on the readiness to kill rival gang members and traitors was excessive. Establishing the existence of a criminal street gang under section 186.22 can be accomplished without introducing unnecessarily violent predicate offenses. When a gang has engaged in a number of primary activities, as had the NF according to Livingston's opinion, Evidence Code section 352 requires the trial court upon objection to carefully consider whether to exclude dramatic or sensational prior offenses that have limited relation to the charged crimes. In this case involving charges of selling methamphetamine, in light of all the evidence of earlier drug crimes by Paigly, Wreath, Rodriguez, and other NF and NR members, the trial court should have excluded evidence of the gang's readiness to kill and actual crimes of violence.

Having found the evidence unduly prejudicial, we must determine if it is reasonably probable that a result more favorable to defendants would have occurred had the foregoing evidence been excluded. (People v. Williams (2009) 170 Cal.App.4th 587, 612–613.) The prosecutor's opening statement emphasized the violent nature of the NF, telling the jurors they would be hearing from experts that the Nuestra Familia was formed in the 1960s “by violent gang members ․” One of the philosophies of membership was “blood in, blood out,” meaning that to become a member “you either had to kill a rival, or at least shed the blood of a rival” and that “[b]lood out meant that it was membership for life.” The prosecutor argued that experts will say “the primary activities [are] committing murder, selling narcotics, assault with deadly weapons.” Two of the witnesses, John Mendoza and Patrick Martinez, had been put on a hit list by Nuestra Familia, with orders for “any member of the organization if they see or have the ability to kill any one of these individuals, they are to do so.”

As Rodriguez points out, one juror was excused the morning after opening statements after explaining to the court that another potential juror who was later excused had warned her not to walk to her car alone because he knew about the gang. Though initially assured about the security in place at the court by a deputy sheriff, the juror stated that “with, basically, the opening statement just really - I'm more fearful now than I was.”

Once trial commenced, the jury heard Livingston's inflammatory introduction to the NF, complete with a violent origin story, a longstanding war with a rival gang, and discussion of several violent activities that had almost no connection to the drug-related charges the defendants faced. That introduction was followed by admission of the documentary evidence we already described, which once again involved violent crimes bearing only the slightest relation to the drug charges at hand.

The prosecutor's closing arguments were more nuanced, but still included three statements characterizing the NF as a violent criminal organization. He described the NF as a “very sophisticated” and “very powerful” organization whose directives “have to be followed.” While the prosecutor did not mention murder or violence, he argued that you “become a victim” if you do not follow the organization's orders.

Under these circumstances, we cannot conclude that the trial court's admission of unduly prejudicial gang evidence was harmless as to the active gang participation convictions and the gang enhancements. It is reasonably probable that a jury would have decided those gang-related issues in a manner more favorable to defendants had it not been inundated with unduly prejudicial gang evidence.29

Though we find reversible error as to the active gang participation convictions and gang enhancements, the impact of that prejudice on the conspiracy convictions was less pronounced. As we have already discussed, there was overwhelming evidence of both the existence of a conspiracy to sell methamphetamine and the defendants' involvement in that conspiracy. The unduly prejudicial gang evidence was of secondary importance regarding the conspiracy counts because the jury could convict defendants of the conspiracy regardless of whether a gang existed. Given the weight of the evidence supporting the conspiracy convictions, we find it is not reasonably probable that defendants would have obtained a more favorable result regarding the conspiracy convictions had the extraneous gang evidence been excluded.

We reject claims by Rodriguez and Paigly that the admission of the challenged evidence rendered the trial fundamentally unfair. “To prove a deprivation of federal due process rights, [a defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.’ ” (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) The prior convictions of robbery and murder were probative of pattern offenses and the gang's ongoing nature. We have concluded that they should have been excluded as more prejudicial than probative, not as irrelevant. As the jury could have drawn permissible inferences from this evidence, its admission did not amount to a federal due process violation. (Williams, supra, 170 Cal.App.4th 587, 612–613.)

IV. CODEFENDANTS, IMMUNITY, CONTEMPT, AND SHACKLING

Each defendant challenges on various grounds a process in which the prosecutor called five former codefendants (Eric Burns, Shelby Thornhill, Alysia Silva, Frank Gutierrez, and Ronald Wreath), to be held in contempt of court in front of the jury for refusing to answer questions. The jury was instructed not to speculate about why other persons involved in committing the charged crimes were not codefendants. (CALCRIM No. 373.) The jury was not informed about their former status as codefendants, nor of their convictions or sentences.

A. PROCEDURAL HISTORY

Before trial, the prosecutor asserted his intent to provide five former codefendants with use immunity agreements and then call them as percipient witnesses to show their reluctance to testify, relying on People v. Lopez (1999) 71 Cal.App.4th 1550 (Lopez).

During trial, the prosecutor filed declarations requesting the trial court to grant use immunity to the five former codefendants so each could answer questions about the charged conspiracy. The court conducted a hearing outside the jury's presence, where the five former codefendants argued that compelling them to testify would deprive them of their privilege against self-incrimination and that the proposed immunity did not adequately protect them against federal or state prosecution. The trial court granted the requested immunity for each of the five former codefendants, reasoning that the court had the authority under section 1324 to provide the immunity and that the immunity granted was broad enough to protect against federal prosecution so long as questions were limited as proposed. Counsel for the five former codefendants made clear that their clients still intended to refuse to answer any questions.

The prosecutor eventually called each of the five former codefendants to the witness stand before the jury, each with his or her attorney present. Each witness was duly sworn and identified himself or herself. After introduction into evidence of the applicable use immunity, the court instructed each witness that, based on the immunity provided, the witness “no longer” had a privilege not to testify or refuse to answer the prosecutor's questions.

Burns refused to answer whether he knew Cramer, was involved in selling methamphetamine for the NF, or whether he owed $750 to the NF for narcotics. Thornhill refused to answer whether she knew Cramer or was involved in early 2007 in collecting proceeds of drug sales by the NF or in collecting money as instructed by letter or over the phone. Silva refused to answer whether she knew Cramer, assisted him in collecting drug debts owed the NF, or sent a money order to Victor Esquibel at Cramer's direction. Gutierrez refused to answer whether he knew Rodriguez, whether he was left in charge of various actions of Cramer's Nuestra Familia regiment, or whether he knew that Miramontes was running the Santa Clara County jail in early 2007 for NF. Wreath refused to answer whether he knew Cramer was running an NF regiment in early 2007, and whether, prior to Wreath's arrest, he had attempted to collect money owed to Paigly on behalf of the NF. No witness was asked if he or she was refusing to answer due to membership in the NF or the NR. The court held each of the five former codefendants in contempt of court for refusing to answer any questions and imposed a maximum county jail sentence of five days to be served concurrently to each witness's current sentence.

This process of calling five witnesses and finding them in contempt of court took a half-hour at the end of one day of trial. The court denied the opportunity to cross-examine each witness, explaining with the first, “Unfortunately, Mr. Burns didn't answer any questions so there's nothing to cross-examine on ․”

After the five former codefendants were held in contempt, at a hearing outside the presence of the jury defendants argued that the trial court's procedure related to the five former codefendants violated the Sixth Amendment's confrontation clause and was substantially more prejudicial than probative (Evid. Code, § 352), especially because some of the five former codefendants were dressed in red jail clothing. Miramontes moved for a mistrial. The court denied the mistrial motion and announced that the jury would be instructed to draw no inference from how the witnesses were dressed.

The court instructed the jury after the close of evidence to disregard the fact that some witnesses were in custody and may have been physically restrained when they testified (CALCRIM No. 337), to draw no inference from a defendant invoking his constitutional right not to testify (CALCRIM No. 355), and to not assume the truth of anything suggested in an attorney's question unless it facilitated understanding the witness's answer (CALCRIM No. 222). Despite a request by defendants, the trial court did not instruct jurors to draw no inference about a defendant's guilt or innocence from a witness's invocation of the privilege not to testify. (Evid. Code, § 913; CALCRIM No. 320; see People v. Smith (2007) 40 Cal.4th 483, 517.) Evidence Code section 913, subdivision (b) states: “The court, at the request of a party who may be adversely affected because an unfavorable inference may be drawn by the jury because a privilege [not to testify] has been exercised, shall instruct the jury that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.”

B. PRIVILEGE AGAINST SELF-INCRIMINATION AND RIGHT TO FAIR TRIAL

Cramer challenges the trial court's handling of the former codefendants as a violation of his due process right to a fair trial, arguing the evidence was irrelevant. Rodriguez makes the same argument, and also contends that granting immunity to the former codefendants amounted to “stripping the Fifth Amendment privileges by compulsion.”

Section 1324 authorizes a prosecutor to request a judicial order mandating that a witness provide answers on topics that witness has characterized as self-incriminating, so long as “no testimony or other information compelled under the order or any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminal case.” (§ 1324.) “[W]here a witness receives immunity, that witness's testimony is compelled and the witness no longer has a privilege against self-incrimination.” (People v. Morgain (2009) 177 Cal.App.4th 454, 466 (Morgain).)

Our due process concern is not whether the section 1324 orders adequately protected the federal Fifth Amendment privilege of former codefendants who are not parties to this appeal, but whether the orders resulted in unreliable trial evidence against the remaining defendants.

A criminal defendant has a right upon request to have the jury instructed to draw no inference from the exercise of the defendant's constitutional right not to testify. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1535.) However, a defendant lacks standing to complain of a violation of a third party's privilege against self-incrimination unless the circumstances amount to a violation of the defendant's due process right to a fair trial. (People v. Jenkins (2000) 22 Cal.4th 900, 965–966.) “The violation of a third party's privilege against self-incrimination may deprive a defendant of his or her due process rights if such action adversely affects the reliability of testimony offered against the defendant at trial.” (Id. at p. 966.) “ ‘When a defendant seeks to exclude evidence on this ground, the defendant must allege that the trial testimony is coerced [citation], and that its admission will deprive him of a fair trial [citation].’ ” (Ibid.) The concern for fairness is whether the violation was so coercive as to make the resulting trial evidence unreliable. (Id. at pp. 966–967.)

In Lopez, supra, 71 Cal.App.4th 1550, the Court of Appeal determined that “where a witness has no constitutional or statutory right to refuse to testify, ․ [j]urors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” (Id. at p. 1554.) In that case involving several charges allegedly committed for the benefit of a criminal street gang, the prosecution called a gang member (Miranda) to describe a gang-related assault he had committed a month before the charged offense to establish a pattern offense. (Id. at pp. 1552–1553.) Miranda no longer had a Fifth Amendment privilege as he had pleaded guilty and his time for appeal had elapsed. (Id. at p. 1553.) “Miranda took the stand and refused to answer questions, basing his refusal on a privilege he was not entitled to claim.” The Court of Appeal found that “the jury was entitled to consider Miranda's improper claim of privilege against him as evidence relevant to demonstrate exactly what the gang expert had opined: that gang members act as a unit to advance the cause of the gang and to protect their members.” (Id. at pp. 1555–1556.) There was no express claim of a due process violation in Lopez.

Similarly, in People v. Sisneros (2009) 174 Cal.App.4th 142 (Sisneros), the defendant was convicted of, among other things, first degree murder and active gang participation. (Id. at p. 144.) At trial, the prosecution called Gloria Luna to testify, whose appellate rights had expired after she had entered a plea to being an accessory to the murder. (Id. at p. 149.) When Luna refused to be sworn or to testify before the jury, the trial court held her in contempt of court without any party asking her a question and instructed the jury that her appearance was received only for the “ ‘limited purpose as it may relate to any expert opinion offered by [the gang expert] and for the basis of any expert opinion.’ ” (Id. at p. 150.)

The appellate court determined that Luna's silence had probative value. A gang expert testified the defendant was a gang associate, the killing appeared to be a gang-related mission, and the gang often retaliated violently against those who cooperated with law enforcement. (Sisneros, supra, 174 Cal.App.4th at p. 152.) The expert stated that despite being in custody, Luna “remained a target for gang retribution if she were to cooperate with authorities by testifying.” (Ibid.) The appellate court concluded that Luna's refusal to take an oath or testify “provided strong support for the expert's opinion that the [gang] engaged in witness intimidation,” and reasoned that the “inference that Luna's refusal was motivated, at least in significant part, by fear of gang retribution cannot be dismissed as mere speculation.” (Ibid.) The court also noted that “the prosecution did not argue that Luna's silence should be considered as substantive evidence of guilt.” (Id. at p. 153; accord Morgain, supra, 177 Cal.App.4th at pp. 466–468 [following Lopez in admitting evidence of defendant's girlfriend's refusal to testify in a murder case without gang overtones].)

Here, when the trial court allowed the prosecutor to produce five former codefendants at trial to establish their reluctance to testify, the trial court could have reasonably anticipated testimony from a gang expert that gang members are loathe to testify against each other. We note that when the prosecutor asked Sergeant Livingston about the significance of one NF member testifying against another NF member, Rodriguez objected and the trial court obtained the prosecutor's agreement not to ask about the topic. The refusals to answer nonetheless had some potential probative value and were not unreliable due to improper coercion. We conclude the procedure did not violate defendants' due process rights to a fair trial.

C. RIGHT TO CONFRONT WITNESSES WHO REFUSE TO ANSWER

Paigly, Rodriguez, and Cramer argue that the process by which the prosecution put on witnesses who refused to answer violated their Sixth Amendment right to confront witnesses against them.

In refusing to answer specific questions, each former codefendant essentially made the following statement on the witness stand: “I refuse to answer any questions relating to the charged crimes even though the court has instructed me that I have no legal right to refuse.” The Evidence Code provides, “ ‘Statement’ means (a) oral or written verbal expressions or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expressions.” (Evid. Code, § 225.) Although we reject Cramer's contention that their refusals should be treated as out-of-court statements or adoptive admissions, as their refusals occurred in court before the jury, the Attorney General's contention that “there were no statements at all” in this case is also incorrect.

The prosecutor sought to introduce the former codefendants' refusals to answer as evidence confirming a gang expert's opinions. The prosecutor intended to produce expert testimony that gang members do not offer information about the gang to law enforcement. The former codefendants' refusal to testify would support inferences that they (1) were themselves members or associates of the gang; and (2) regarded defendants as fellow members of the gang.

There may be no right to confront a witness who says nothing incriminating about a defendant. (U.S. v. Fleming (7th Cir. 1974) 504 F.2d 1045, 1049; U.S. v. Crockett (4th Cir. 1987) 813 F.2d 1310, 1315; Willard v. State (Ga. Ct. App. 2000) 244 Ga.App. 469, 472, 535 S.E.2d 820 [immunized witness cited for contempt for refusing to answer whether he had pleaded guilty].) But the prosecutor here called former gang associates in order to provide incriminating evidence, either explicitly by their testimony or implicitly by their refusals to answer. In the circumstances of this case, the refusal to answer supported possible incriminating inferences.

Because the former codefendants were called to make incriminating statements against defendants, we conclude that the trial court erred in denying any defendant the opportunity to cross-examine them regarding their refusals to answer. Though the right of confrontation may have entitled defendants to ask no more than whether the refusals to answer were based on common gang membership, knowledge of a defendant's gang membership, or other reasons, the trial court erred when it did not allow any cross-examination.

The Attorney General bears the burden to show that the federal constitutional error of a mistaken restriction of a defendant's right of confrontation is harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 (Van Arsdall).) Factors relevant to that analysis 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.’ ” (People v. Sully (1991) 53 Cal.3d 1195, 1220, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)

We are satisfied that the undue restriction of defendants' rights of confrontation was harmless beyond a reasonable doubt. The five refusing witnesses took a single half-hour out of 20 days of testimony. The former codefendants were called to testify in anticipation of an expert opinion that gang members will not testify against fellow gang members. When the prosecutor began to elicit this expert opinion, the trial court instructed him to avoid the question, so the anticipated expert opinion was not presented to the jury. Although there was other general expert testimony regarding the danger faced by individuals who were deemed informants by the NF, it was not specifically tailored to establish the inference desired by the prosecution.

The prosecutor also did not use the refusals to answer to insinuate the existence of facts that filled evidentiary gaps or established any defendant's guilt. (Compare People v. Rios (1985) 163 Cal.App.3d 852, 869 [two witnesses refused to confirm what prosecutor's questions implied they had told the police about a murder]; Douglas v. Alabama (1965) 380 U.S. 415, 419 [in questioning coparticipant in assault, prosecutor read coparticipant's confession while coparticipant invoked his privilege against self-incrimination].) This topic went unmentioned in lengthy closing argument that focused on what defendants and their associates (including the five former codefendants) had said and done.

Further, any incriminating inference available from the refusals to answer was cumulative of other evidence, including the words and conduct of the former codefendants. To the extent their refusals to answer suggested that the former codefendants were members or associates of the NF and the NR, there was ample other evidence on that topic, including numerous recorded telephone calls involving Thornhill, Gutierrez, Wreath, Silva, and Burns. There were also letters to and from the former codefendants. The particular association of each individual with Cramer and his regiment was demonstrated by their own words, as well as what others said about them and to them, and by Silva mailing two money orders as apparently directed by Cramer.

Though the refusals to answer supported an inference that the former codefendants regarded defendants as fellow gang members, there was ample other evidence on that topic as well. The phone calls and letters involving the former codefendants indicated that Wreath, Gutierrez, Thornhill, and Silva took directions from defendant Cramer and treated him as some kind of a leader. Thornhill and Wreath, before their arrests, also treated defendant Paigly as an authority figure, consistent with his listing in the gang roster.

On this record, we conclude that the error in precluding cross-examination of these witnesses was harmless beyond a reasonable doubt.

Rodriguez and Paigly argue that the evidence of the former codefendants' refusal to answer should have been excluded as unduly prejudicial. (Evid. Code, § 352.) Having already concluded that it was harmless beyond a reasonable doubt because the prosecutor ultimately did not rely on this evidence at all, we need not decide whether the evidence was also unduly prejudicial. (In view of our conclusion that the evidence should have been excluded, we do not consider Cramer's alternative arguments about the testimony.)

D. SHACKLING THE FORMER CODEFENDANTS

After oral argument, we invited supplemental briefing regarding whether the trial court erred by allowing the five former codefendants to testify while wearing physical restraints without first determining whether there was any need for those restraints. Cramer and Paigly argue that the trial court's decision violated People v. Duran (1976) 16 Cal.3d 282 (Duran). The Attorney General responds that the defendants forfeited the argument; that the record does not conclusively establish whether any or all of the former codefendants were visibly restrained; that no individualized determination of need was necessary because the former codefendants were prosecution witnesses instead of defense witnesses; and that any error was harmless.

1. BACKGROUND

The prosecution called each of the five former codefendants to testify. Each former codefendant was sworn in and informed he or she could not refuse to testify because of an immunity agreement. Each former codefendant refused to testify and was held in contempt. There is no clear indication in the record of those proceedings that the former codefendants were physically restrained. However, when Thornhill took the stand the court told her to “raise your right hand, to the extent you can, and be sworn.” (Italics added.) There was no objection about physical restraints while any of the former codefendants' were on the witness stand.

As part of the mistrial motion made after the former codefendants were held in contempt, Cramer's attorney argued: “I had no idea that they were going to come in not dressed out. ․ Several of them were in double-red. I don't know if the jury has picked up on the red or anything, but they can certainly pick up on the jingle bells, the chains that they were wearing on their waist and their hands and their feet and I think that further prejudices the defendants in this case.” The prosecutor responded that there was no prejudice, arguing: “I don't understand what significance the fact that they're in jail clothing and that they may be shackled is going to have to completely dissuade the jury from looking at the evidence in this case.”

The court denied the mistrial motion and indicated it would read the jury a cautionary instruction about restrained witnesses “first thing” the next morning of trial. Though it does not appear that the court provided that instruction the next morning, it subsequently instructed the jury before deliberations to disregard the fact that some witnesses were in custody and may have been physically restrained when they testified.

2. DURAN AND PHYSICALLY RESTRAINING WITNESSES

“[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints.” (Duran, supra, 16 Cal.3d at pp. 290–291.) That showing must be made on the record. (Id. at p. 293.) The Duran rule also extends to the shackling of defense witnesses, “since the considerations supporting use of physical restraints are similar in each instance.” (Id. at p. 288, fn. 4.)

When a defendant is shackled without any individualized showing of need, the defendant's federal constitutional right to the presumption of innocence is implicated and the error “compels reversal unless the state demonstrates beyond a reasonable doubt that the shackling did not contribute to the verdict.” (People v. McDaniel (2008) 159 Cal.App.4th 736, 745.) The Supreme Court has not addressed the standard of prejudice applicable when the improperly shackled person is a witness rather than the defendant. However, in People v. Ceniceros (1994) 26 Cal.App.4th 266 (Ceniceros), the Court of Appeal determined that a trial court's improper shackling of a defense witness is state law error that is reviewed under the Watson 30 prejudice standard. (Ceniceros, at pp. 279–280.)

In Ceniceros, four prosecution witnesses who were in custody during trial testified without any physical restraints. The defense called two witnesses who were also in custody during trial and who “were shackled with leg irons during their courtroom appearances.” (Ceniceros, supra, 26 Cal.App.4th at p. 275.) The People conceded on appeal that the shackling was improper, leaving only the matter of whether the error was harmless. (Id. at p. 277.) The Ceniceros court determined that the error did not implicate the federal constitution, reasoning that “shackling a witness does not directly affect the presumption of a defendant's innocence and weighs little in the assessment of his or her credibility,” and also that “improper restraint of a witness does not affect the defendant's decision to take the stand, impede his ability to confer with counsel or otherwise significantly affect trial strategy.” (Id. at pp. 279–280.) Because the federal constitution was not implicated, the court determined that when a witness is improperly shackled the defendant must show it is reasonably probable that a result more favorable to the defendant would have been reached had the shackling not occurred. (Ibid.)

3. SHACKLING FORMER CODEFENDANTS WAS IMPROPER, BUT HARMLESS

The Attorney General argues that defendants forfeited this argument by not objecting to the shackling until after all of the former codefendants had been held in contempt. While defendants arguably forfeited the issue by not timely objecting, we have discretion to reach “a question that has not been preserved for review by a party” (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6), and we exercise that discretion here.

The Attorney General next argues that there is insufficient record support to show that the former codefendants were actually wearing visible restraints when they testified. But Cramer's attorney argued during the mistrial motion that the former codefendants were wearing chains “on their waist and their hands and their feet ․” The prosecutor did not argue that Cramer's counsel had misstated the record. The prosecutor instead argued that there was no “significance [in] the fact that they're in jail clothing and that they may be shackled ․” And the trial court's request that Thornhill raise her hand “to the extent you can” when taking her oath supports an inference that the former codefendants were wearing restraints. As for the visibility of those restraints, we find it reasonable to infer that restraints on the former codefendants' waist, hands, and feet would be visible to jurors. (Cf. People v. Miller (2009) 175 Cal.App.4th 1109, 1115 [inferring that restraints were visible because trial court provided jury instruction to disregard restraints that was only to be given if the restraints were visible].)

Turning to the merits of the shackling argument, had the former codefendants been defense witnesses, the trial court's failure to make individualized determinations of the need for physical restraints would clearly violate Duran. (Duran, supra, 16 Cal.3d at pp. 290–291 & 288, fn. 4.) The Attorney General contends that the foregoing rule should not apply to the former codefendants here because they were prosecution witnesses. But the prosecution's goal with these witnesses was unique. Instead of calling these witnesses so that they could provide testimony, the prosecution called them with the knowledge that they would most likely not testify and did so to support its argument that gang members are loathe to testify against each other. Further, because the former codefendants were listed as possible coconspirators, it was possible the jury would infer that the former codefendants were physically restrained and in custody due to their involvement in the conspiracy, and might further infer that if the former codefendants had already been convicted of the conspiracy then Cramer and Paigly were also guilty. In the circumstances of this case, we find the Duran rule applicable to the former codefendants despite their status as prosecution witnesses.

Because there is no evidence that the trial court made individualized determinations of a manifest need for any of the five former codefendants to be shackled, the trial court erred. We find the Ceniceros court's reasoning persuasive regarding the applicable test for prejudice, meaning that Cramer and Paigly must show that it is reasonably probable that a result more favorable to them would have been reached in the absence of the improperly shackled witnesses. (Ceniceros, supra, 26 Cal.App.4th at pp. 279–280.) We once again limit this discussion to the impact of this error on Cramer's and Paigly's conspiracy convictions.

The trial court properly instructed the jurors not to speculate about reasons that witnesses might have been restrained and also that they should “completely disregard this circumstance in deciding the issues in the case.” There is no indication that the prosecutor ever referred to the former codefendants' physical restraints during closing argument or at any other time during trial. As discussed above, there was ample other evidence introduced at trial to show that the five former codefendants had engaged in criminal conduct, including recorded telephone calls and letters involving Thornhill, Gutierrez, Wreath, Silva, and Burns. There was also ample evidence supporting Cramer's and Paigly's guilt for the conspiracy charges. The error was harmless.

V. SENTENCING

Rodriguez asserts that the trial court should have aggregated the indeterminate sentence in this case with an earlier sentence for attempted murder.31

The trial court sentenced Rodriguez to an indeterminate term of 25 years to life for conspiring to sell methamphetamine as a third strike (§ 667, subds. (b)–(i)), with the same sentence for active gang participation stayed (§ 654). That indeterminate term is consecutive to a determinate 11 years, consisting of two five-year enhancements for two prior serious felony convictions (§ 667, subd. (a)) plus one year representing one-third the midterm on the gang enhancement (§ 186.22, subd. (b)(1)(A)). An additional year for a prior prison sentence (§ 667.5, subd. (b)) was stayed and the prior drug possession enhancement was stricken (§ 1385). The sentence here is to be served consecutively to an indeterminate life term for attempted murder in another case.

Rodriguez argues that the indeterminate sentence in this case should have been aggregated with the indeterminate sentence he received in another case for attempted murder “for clarity” and “to assure that Mr. Rodriguez receives all of his properly earned credits.” (Citing §§ 669, 1170.1, subd. (a).)

Rodriguez was sentenced to an indeterminate term of 34 years to life for the third strike of attempting to murder Gregory Vasquez on March 8, 2006 (§§ 664, 187), consecutive to 25 determinate years of enhancements.32 In that case he was given actual custody credit of 1,298 days from his arrest on the day of the crime, March 8, 2006, through sentencing.

The Three Strikes statutes provide that a second or third strike sentence “will be imposed consecutive to any other sentence which the defendant is already serving ․ ” (§§ 667, subd. (c)(8); 1170.12, subd. (a)(8)) and “[t]here shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.” (§§ 667, subd. (c)(1); 1170.12, subd. (a)(1).) The trial court accordingly imposed the indeterminate term here consecutive to the previous indeterminate term for the attempted murder.

Defendant relies on the aggregation requirement of section 1170.1, subdivision (a), but the principal and subordinate term scheme of that section does not apply to indeterminate life sentences. An indeterminate term cannot be utilized as a principal or a subordinate term. (People v. Reyes (1989) 212 Cal.App.3d 852, 856; People v. Mason (2002) 96 Cal.App.4th 1, 15; People v. Neely (2009) 176 Cal.App.4th 787, 798.)

The determinate term in Rodriguez's attempted murder case consisted entirely of enhancements of the indeterminate term. This is also true of the determinate term in this case. As section 1170.1 does not apply to indeterminate terms resulting from convictions which are third strikes, it does not require that those terms or the determinate term enhancements attached to those indeterminate sentences be aggregated.

Rodriguez contends aggregation is required to ensure he was awarded all the custody credits he earned. He was awarded zero custody credits in this case because he was continuously in custody for attempted murder until he was sentenced in that case and then was in the constructive custody of prison authorities after sentencing in that case, where he earned prison credit under sections 2931 (good conduct) and 2933.05 (program credit). (People v. Johnson (2004) 32 Cal.4th 260, 267.) Rodriguez has not demonstrated that any portion of his custody was “attributable to proceedings related to” his conspiring to sell methamphetamine. (§ 2900.5, subd. (b); People v. Bruner (1995) 9 Cal.4th 1178, 1195 [“defendant has not shown that he could have been free during any period of his presentence custody but for the same conduct that led to the instant conviction and sentence”].) No error appears in denying credit in this case or in the lack of aggregation of indeterminate terms.

VI. DISPOSITION

The judgments against Cramer, Paigly, and Rodriguez are reversed, and the matter is remanded for possible retrial on the active gang participation counts and the gang enhancements.

RUSHING, P.J., Concurrence and Dissent.

I concur with the majority's opinion in all respects but one: I would hold that the shackling of former codefendants and coconspirators violated defendants' due process rights. Given the prejudicial effect of this violation, I would reverse the convictions of Cramer and Paigly in their entirety.1

The prosecution called five former codefendants and alleged coconspirators to testify under immunity. The parties and the trial court knew in advance that all five witnesses would refuse to testify notwithstanding the grants of immunity. As expected, each witness refused to answer the prosecution's questions, and the court held each witness in contempt in the presence of the jury. Existing case law allows the prosecution to employ this procedure, and the jury is entitled to use a witness's refusal to testify to support certain negative inferences—e.g., that the witness may fear retribution by a gang, or that gang members adhere to a code of silence. (People v. Sisneros (2009) 174 Cal.App.4th 142; People v. Lopez (1999) 71 Cal.App.4th 1550.)

Here, however, the use of this tactic was tainted by highly prejudicial circumstances: Some or all of the five witnesses were restrained by shackles and dressed in prison garb. The prosecution gave no advance notice of these conditions. The court held no hearing on the matter and made no findings on the need for restraints. Defense counsel, caught off guard, moved for a mistrial outside the presence of the jury once the witnesses had been dismissed. The court denied the motion but subsequently instructed the jury to disregard the fact that the witnesses were physically restrained.

Longstanding case law prohibits the use of physical restraints on a defendant in the presence of the jury absent a showing of manifest need. (People v. Duran (1976) 16 Cal.3d 282, 290-291; People v. Harrington (1871) 42 Cal. 165.) A trial court's failure to make an on-the-record determination on the necessity of shackling a defendant before doing so in view of the jury is an abuse of discretion. (People v. McDaniel (2008) 159 Cal.App.4th 736, 745 (McDaniel).) This error violates the federal constitution because it “undermines the presumption of innocence and the related fairness of the factfinding process.” (Deck v. Missouri (2005) 544 U.S. 622, 630.) Reversal is required unless the state proves beyond a reasonable doubt that the violation did not contribute to the verdict. (McDaniel, supra, 159 Cal.App.4th at p. 742.)

Restrictions on the use of physical restraints apply to defense witnesses as well. (People v. Ceniceros (1994) 26 Cal.App.4th 266 (Ceniceros); Duran, supra, 16 Cal.3d at p. 288, fn. 4.) However, the court in Ceniceros held that the erroneous shackling of a defense witness only violates state law, triggering harmless error review under the less stringent standard of People v. Watson (1956) 46 Cal.2d 818 [requiring reversal only if it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error].) The court distinguished the effect of shackling a defendant, which impinges on the presumption of innocence, from the shackling of a defense witness—a condition that merely affects the witness's credibility, and does not directly affect the presumption of innocence. (Ceniceros, supra, 26 Cal.App.4th at p. 280.)

The circumstances here depart from both situations. The shackled witnesses were neither defendants nor defense witnesses; they were prosecution witnesses. But the credibility of their testimony was not at issue; the prosecution did not expect to adduce any relevant testimony at all. The sole purpose for calling them was to provide the jury with a visual display of their recalcitrance. It was done, in short, for show. As such, the physical appearance of the witnesses is particularly relevant to the analysis.

I am unaware of any case on point. The majority opinion, relying on Ceniceros, concludes the trial court erred by shackling the witnesses, and the majority likewise applies the Watson standard for prejudice. I agree that the court erred for the reasons set forth in the majority opinion, but I respectfully disagree regarding the standard for prejudice.

I would hold that the error violated defendants' due process rights to a fair trial. Several circumstances rendered the shackling of the witnesses fundamentally unfair. First, the prosecution identified the witnesses as coconspirators and presented evidence of their involvement in the conspiracy. Second, in its questioning of the witnesses, the prosecution specifically asked about their associations with defendants. Although the jury was not told the witnesses had been convicted as part of the same prosecution, the presence of shackles and prison garb would cause even the most incurious juror to draw that inference. Third, because the prosecution associated the witnesses with defendants as coconspirators, the jury's emotional response to the witnesses likely influenced jurors' image of defendants as well. That the witnesses were coconspirators was not by itself unduly prejudicial; it was also the physical appearance of these witnesses. As we observed in McDaniel, supra, 159 Cal.App.4th at p. 746, “it is not the fact that the defendant is a prison inmate that makes shackling prejudicial; rather, it is the jurors' visual, psychological, and emotional response to seeing a defendant so physically restrained and differentiated from everyone else and the natural tendency to wonder whether the defendant is a violent and dangerous person ․” Here, the jury's exposure to shackled coconspirators likely tainted its impression of defendants by association.

Finally, the trial court's curative instruction was inadequate. More than two weeks after the witnesses appeared, the court instructed the jury to disregard the fact that the witnesses were restrained. It is difficult enough for jurors to ignore what they have seen with their own eyes. Instructing them to do so two weeks later, long after they had formed their impressions, likely rendered the instruction ineffectual. (See McDaniel, supra, 159 Cal.App.4th at p. 747 [questioning whether it is reasonable to presume that jurors can and will follow such an admonition when it is given after the defendant has testified and jurors have already had a chance to react].)

A due process violation requires the state to prove beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Albarran (2007) 149 Cal.App.4th 214, 229.) “ ‘ “To say that an error did not contribute to the ensuing verdict is ․ to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” [Citation.] Thus, the focus is on what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is “whether the ․ verdict actually rendered in this trial was surely unattributable to the error.” [Citation.]’ ” (People v. Pearson (2013) 56 Cal.4th 393, 463.) Applying this high standard, I conclude the Attorney General has not shown beyond a reasonable doubt that the error did not contribute to the verdict. I think it is reasonably likely the error did contribute to the verdict, and I would reverse even under the Watson standard.

Accordingly, I would reverse the convictions of Cramer and Paigly in their entirety.

FOOTNOTES

1.   Unspecified section references are to the Penal Code. 

2.   The amended indictment alleged 14 robbery convictions and two of attempted robbery. At the hearing in November 2008, the court stated that Cramer had ten robbery convictions in one proceeding, though the abstract of judgment from that case reflects 11 robbery convictions. The probation report later itemized 16 strike priors and the court at sentencing recognized that 16 strike priors were established by the evidence. 

3.   Contrary to Paigly's contention on appeal, Mendoza did not say each regiment member was required to sell $2,000 to $4,000 worth of drugs a month. What he said was that a regiment that was generating sufficient income could be expected to send those amounts to incarcerated NF members in addition to dues. 

4.   The kite was retrieved from Ramirez in March 2005 by Salinas Valley State Prison correctional officers, including Marcelino Valdez. Valdez testified that he copied the micro-writing on the kite onto several typed single-spaced pages, and he authenticated the copy he wrote. The prosecutor read many passages from the document over defendants' Evidence Code section 352 objections. 

5.   The prosecutor spelled the last name as “Esquibel,” but the reporter's transcripts refer to “Esquivel.” We adopt the prosecutor's spelling. 

6.   Morreira's surname is spelled multiple ways in the record. We adopt the spelling used by Livingston while testifying. 

7.   For readability, we do not copy strikeouts and capitalization. 

8.   The ledger does not mention a $750 debt, the name Burns, or his monikers (Listo or Ready). 

9.   The indictment alleged the third overt act of the conspiracy was Paigly calling Thornhill on January 26, 2007, “about collecting money owed to the Nuestra Familia Street Regiment by various members for methamphetamine sales, including Ronald Wreath, Jose DeSantiago, and Joshua Morreira.” The indictment did not number the overt acts chronologically. 

10.   Cramer called a loan company representative, who testified that Cramer had obtained a loan for a business named J.A.C. Retail Rack Installation, that some repayments were made, and that a final payment of $200 was made on January 24, the day Cramer was arrested. The remaining loan principal on January 24 was $4,875.39. 

11.   The indictment alleged the sixth overt act of the conspiracy was Eric Burns calling his mother on January 27, 2007, “to have her pay money to Alysia Silva to cover his debt to the Nuestra Familia Street Regiment for methamphetamine sales.” 

12.   On hearing this, Silva said, “Wow. Damn. Okay, I'm going to do this like right way. Okay.” 

13.   The indictment alleged the seventh overt act of the conspiracy was Rodriguez calling Silva on January 27, 2007, “on behalf of James Cramer to collect money owed to the Nuestra Familia Street Regiment by Eric Burns.” 

14.   Rios's moniker appears with different spellings in the transcript. We use “Syces” as it appears in the alleged gang roster to name the fifth member of the regiment. 

15.   The indictment alleged the ninth overt act of the conspiracy was Cramer calling Thornhill and Wreath on January 30, 2007, “about collecting money owed to the Nuestra Familia Street Regiment for methamphetamine sales.” 

16.   The indictment alleged the tenth overt act of the conspiracy was Cramer calling Thornhill and Mendez on January 30, 2007 “about collecting methamphetamine and money owed to the Nuestra Familia Street Regiment.” 

17.   The indictment alleged the second overt act of the conspiracy was Paigly writing Carol Salgado between January 26 and February 13 “about collecting money owed to the Nuestra Familia Street Regiment by various members for methamphetamine sales, including Jose DeSantiago, Ronald Wreath, Shelby Thornhill, and Joshua Morreira.” 

18.   The indictment alleged the 11th overt act of the conspiracy was Wreath calling Andrews “on or about February 1, 2007 ․ to see if Shelby Thornhill picked up his methamphetamine to sell for the Nuestra Familia Street Regiment.” 

19.   The indictment alleged the 13th overt act of the conspiracy was “Frank Gutierrez and Rudy Miramontes” calling Silva on February 9, 2007, “about sending money to Nuestra Familia member Victor Esquibel for money owed by the Nuestra Familia Street Regiment to the Nuestra Familia Organization.” There was no evidence that Miramontes either made this telephone call or spoke on the phone. 

20.   The indictment alleged the 14th overt act of the conspiracy was Wreath calling Thornhill on February 17, 2007, “about the on-going methamphetamine sales operation by the Nuestra Familia Street Regiment.” 

21.   The indictment alleged the 15th overt act of the conspiracy was Gutierrez calling Thornhill on February 17, 2007, “to tell her he was put in charge of some Nuestra Familia Street Regiment responsibilities by James Cramer.” 

22.   The indictment alleged the fourth overt act of the conspiracy (the 14th chronologically) was Cramer writing Silva a letter on or about March 19, 2007 “directing her to collect money owed to the Nuestra Familia Regiment and pick up methamphetamine that had been held by Jeremy Paigly and Ronald Wreath before they were arrested.” 

23.   The indictment alleged the fifth overt act of the conspiracy and the last chronologically was Silva possessing a letter on May 7, 2007, containing a message from “Paigly about collecting money owed to the Nuestra Familia Street Regiment by various members for methamphetamine sales, including Ronald Wreath, Damien Mendez, and Shelby Thornhill.” 

24.   We are not persuaded by Rodriguez's argument that drug sales cannot be considered a primary NF activity because “the NF constitution bars drug sales.” Mendoza testified, for example, that although the NF prohibited drug usage, the rule was commonly violated and he acknowledged being a heavy heroin user. And Cramer acknowledged to Thornhill that he expected to be disciplined by his gang for using drugs. 

25.   Although Livingston was not asked to interpret “bank” in this context, he had testified in general that the NF constitution prescribed that, in addition to the main NF bank, a new regiment should have a regiment bank. 

26.   As Rodriguez does not object to any particular statement as being made after the end of the conspiracy, we do not separately analyze each statement made by an alleged coconspirator for admissibility under Evidence Code section 1223. 

27.   Contrary to the Attorney General's characterization, the testimony challenged by Rodriguez and Paigly was not primarily elicited by cross-examination. Almost all of it was from Livingston's direct examination about the gang's history and evolution. 

28.   Defendants do not argue that the fourth prosecution—the Mendoza regiment's conspiracy to sell methamphetamine—was unduly prejudicial. 

29.   We do not separately discuss several cases cited by defendants that found gang evidence admitted under Evidence Code section 1101 to be more prejudicial than probative. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 904; People v. Maestas (1993) 20 Cal.App.4th 1482, 1495, 1501; People v. Bojorquez (2002) 104 Cal.App.4th 335, 343; People v. Avitia (2005) 127 Cal.App.4th 185, 193; People v. Memory (2010) 182 Cal.App.4th 835, 859-863.) They are distinguishable in that none involved a charge of active gang participation or a gang enhancement. 

30.   People v. Watson (1956) 46 Cal.2d 818. 

31.   Rodriguez also argues that a gang enhancement for a life term does not add time to the sentence; it sets 15 years as the minimum time before parole. Because we have found that the gang enhancements cannot stand in light of the trial court's admission of unduly prejudicial gang evidence, we do not reach that argument. 

32.   This court affirmed his convictions in an unpublished opinion filed April 29, 2011. We take judicial notice of our records in that appeal, H034986. 

1.   Rodriguez did not raise this claim in response to our request for supplemental briefing. I concur with the majority opinion regarding all claims raised by Rodriguez.

PREMO, J.

I CONCUR: Premo, J.