THE PEOPLE v. CESAR JAVIER AREVALO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant Cesar Javier Arevalo was convicted, following a jury trial, of two counts of attempted murder and one count of shooting at an occupied vehicle for the benefit of a criminal street gang.   On appeal, he contends (1) with respect to one of the attempted murder counts, the evidence did not support a finding of intent to kill;  (2) the gang enhancement was not supported by evidence of the subject gang's primary activities;  (3) with respect to one of the attempted murder counts and the shooting at an occupied vehicle count, the evidence did not support that it was committed for the benefit of a criminal street gang;  (4) with respect to one of the attempted murder counts and the shooting at an occupied vehicle count, the evidence did not support that it was committed to promote, further or assist criminal conduct by gang members;  (5) the court erred in failing to give sua sponte CALCRIM No. 358, instructing the jury to view evidence of out-of-court incriminating statements by defendant with caution;  and (6) the court erred in failing to give sua sponte CALCRIM No. 224, instructing the jury on how to evaluate circumstantial evidence to establish an element of the offense.   Defendant also asks that we review the trial court's Pitchess determination.¹  We conclude that defendant's contentions have no merit with the exception of the contentions regarding instructional error.   With respect to those contentions, we conclude any error was harmless.   We further conclude that the trial court did not abuse its discretion in evaluating and releasing Pitchess information.   We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Information

Defendant was charged in a three-count amended information with attempted murder (Pen.Code, §§ 187, subd, (a) and 664) and with discharging a firearm at an occupied vehicle (§ 246).²  With respect to the attempted murder counts (counts one and two), it was alleged that the crimes were committed willfully, deliberately and with premeditation, and that in their commission, defendant (1) personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), and (2) personally used a firearm within the meaning of 12022.53, subdivision (b).  With respect to count two, it was further alleged that defendant personally and intentionally discharged a firearm which proximately caused great bodily injury or death within the meaning of section 12022.53, subdivisions (a) through (d).  With respect to shooting at an occupied vehicle (count five) it was alleged that defendant personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a).   With respect to all three counts, the information alleged that defendant committed the crimes “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.”

B. Evidence at Trial

1. Jose Merino Shooting (Counts One and Five)

On May 15, 2006, at approximately noon, Jose Merino was in his car, a Suburban, parked near the Culver City Park. He noticed a black Honda Civic nearby with a young man and woman inside.   The Honda's seats were covered with a distinctive furry black material.   Merino closed his eyes and reclined his seat to take a nap.   He heard a knock on the window and saw defendant, who demanded that Merino roll down his window.   Defendant was wearing a red glove.   Merino did not comply, and defendant said:  “Open your window, I'm not playing, or I'll break it.”   After making the demand a third time, defendant pulled out a revolver and knocked on the window.   Merino reclined his seat further as defendant started shooting and leaned away.   One bullet struck “a few inches” from Merino's body, but he was not hit.   Defendant continued shooting as he ran toward the rear of the Suburban, toward the Honda.   Defendant shot a total of three or four times.   The Honda sped away.

After the shooting, Merino went to the Culver City police station to make a report.   He and the officers inspected his vehicle and found one bullet hole in the driver's side door near the bottom.   Merino later identified a Honda, a gun and a red glove from photographs and objects shown to him by officers and in court.   Merino identified defendant as the shooter in a photographic line-up shown to him by officers and also identified him in court.³

Officers located two live bullets and five bullet fragments at the site of the shooting and found a bullet fragment on the driver's side doorjamb of Merino's car.⁴  The casings of the bullets, which were .38 caliber, were made of brushed aluminum.   This was unusual, as bullet casing are generally made of brass.

Andrea Ramos, whose mother owned the Honda identified by Merino, testified that in May 2006, she lent the car to her friend “Jessica,” who at that time was dating “Vampi.”   Jessica was supposed to return the car after lunch, but kept it until school was over.   Later that week, Jessica borrowed the car at approximately 10 a.m. and did not return to pick Ramos up to take her to school, as she had promised.

Jessica Mendoza testified that in 2006, she had briefly dated defendant, whom she called Cesar, but whose gang name was “Vampi.” ⁵  On May 15, she borrowed the Honda from Ramos to pick up defendant.   He was wearing a red glove.   They parked near an SUV. After a period of time, Mendoza started to drive away.   Defendant told her to stop.   He got out of the car and Mendoza heard gunshots.   Appellant returned to the car and said “let's go.”   As Mendoza sped away, the SUV parked near them followed them briefly.   Mendoza later dropped defendant off and returned the Honda to Ramos.

2. Carlos Garcia Shooting (Count Two)

On May 17, 2006, Carlos “Shady” Garcia, a member of the Tiny Malditos clique of the 18th Street gang, was shot in the back while riding his bicycle in Ballona Creek.   He was riding with four fellow gang members.   Garcia had eighteen gang tattoos, some of them visible on his face.   Garcia denied knowing who shot him.   Asked about a particular gang, Culver City Boys (CCB), Garcia denied being concerned about its members.⁶  Garcia testified that he considered the bicycle path in Ballona Creek to be “neutral territory.”

Alonso Galindo was walking on Ballona Creek's bicycle path at approximately 10:30 a.m. when he saw some males on bicycles and heard shots.   At least one of the males had tattoos.   At trial, Galindo refused to testify concerning what else he saw.⁷  Shown a written statement he had given police officers on the day of the shooting, Galindo reiterated that he did not see anything and claimed that when interviewed, he just went along with what he believed the officers wanted him to say.   Galindo admitted one of the males present at the Garcia shooting had a bandana on his face, but denied seeing him pull out a gun or shoot anyone.   Galindo claimed to have been unable to see the bandana-wearing person's face because it was covered.

In his statement, read into the record, Galindo said he saw gang members on bicycles and “the one they call Vamps supposedly hit them up.” ⁸  During the interview with the officers, Galindo said he did not know who the shooter was, but that he knew Vampi was the one who “hit up” the 18th Street gang members, and that Vampi pulled a gun from his waistband and pointed it at one of the bicycle riders.⁹  When shown a photographic six-pack by police officers in an attempt to identify Vampi or “Vamps,” Galindo pointed to defendant's photograph and the photograph of one other person.   At the preliminary hearing, Galindo testified that the person wearing the bandana pulled out a gun and started shooting after one of the males on the bicycles put his hand in his pocket.

Robert Trejo was on the bank of Ballona Creek performing construction work at approximately 10:00 a.m. on May 17.   He saw three young males running.   The one in front was wearing a red cap and glove.¹⁰  Two young Hispanic females walked towards him.   The male with the red cap and glove handed something to one of the females and they all hurried away.

On May 17, Melissa Casillas was with her friend, Vanessa Salinas, in Ballona Creek, near the bicycle path.   Casillas believed Salinas was “affiliated” with CCB.¹¹ Salinas stopped to talk to someone.   Casillas and Salinas were thereafter stopped and searched by police officers.   In a backpack carried by Salinas, officers found a red Cincinnati baseball hat, a red knit glove and a .38 revolver.¹²  There were four casings and a single live bullet in the gun.   The casings were made of brushed aluminum.

Casillas and Salinas were arrested.   Casillas gave a statement to officers, which was read into the record.   In it, Casillas said that when she was walking with Salinas, they were approached by “Vampi” who took off a red hat and red bandanna and gave the items to Salinas, who put them in the backpack.   Vampi then used Salinas's cell phone to call someone to pick him up before hurrying away.   During questioning by officers, Casillas was shown a photograph of defendant and said “that's Vampi.”

In court, Casillas at first denied seeing who gave the items to Salinas, denied recognizing defendant, denied that he was “Vampi,” and denied that he was the person who approached Salinas on May 17.¹³  Later in her testimony, Casillas said that defendant was the person she saw give some items to Salinas that day.

On May 17, at approximately 10 a.m., Jessica Mendoza received a call from defendant, asking her to pick him up at the McDonald's near Ballona Creek.¹⁴  Mendoza again borrowed Ramos's car.   While driving Ramos's car, Mendoza was stopped by police officers.¹⁵  On her cell phone, officers found a picture of defendant displaying gang signs.

3. Gang Evidence

Officer Antonio Rodriguez, the prosecution's gang expert, testified that he had been assigned to the gang detail for more than four years.   He had received specialized training and attended annual seminars.   He kept up to date on gang activities by reviewing arrest reports, reviewing field information cards (information on gang members gathered by other officers), sharing information with other police departments, contacting hundreds of gang members, and reviewing information gang members posted about themselves on Internet sites.

Officer Rodriguez testified that gang members commit assaults and robberies to instill fear and to gain respect.   By committing violent crimes, the gang member gains respect from fellow gang members.  “Wannabe's” and hangers-on-those who are not full-fledged members-also commit crimes to benefit the gang.

Officer Rodriguez was familiar with CCB. The gang started in the early 1970's in the Mar Vista Gardens projects.   It had approximately 275 members.   Officer Rodriguez had arrested members of the gang for various crimes, including sale of narcotics, robbery, attempted murder and murder.   Members of the gang post graffiti which says “Culver City PLS,” “Kingston Boys,” “C,” “CEXCE,” or “CXC.” ¹⁶ They employ hand signs that involve curling the fingers to look like a “C,” crossing their arms and curling the fingers of both hands to signify “CXC,” or using the fingers of both hands to make a “C” and a “P,” signifying Culver projects.   Culver City Park is within CCB's claimed territory.

CCB's rivals include the Venice Shoreline Crips, 18th Street, and possibly Inglewood 13.   Garcia was a member of 18th Street.

Officer Rodriguez identified the items found in the backpack carried by Salinas-the red glove and cap-as the types of apparel typically worn by CCB members to identify themselves and each other.   Gang members in general wear colored caps, some with lettering, to signify the name or identity of their gang.

Officer Rodriguez had had two contacts with defendant in the past.   He believed defendant was a member of CCB because defendant admitted being a member to other officers.   Officer Rodriguez believed defendant's gang name was “Vampi,” although defendant never admitted that moniker to Officer Rodriguez and one field interview card listed his nickname as “little Cesar.”   Officer Rodriguez identified defendant in two photographs displaying CCB gang signs.¹⁷  He also identified defendant in photographs he had found on MySpace in the company of multiple other individuals he recognized as CCB gang members.   When defendant was arrested, he was in possession of a red bandana, a black and red baseball hat and a belt buckle with a “C,” all of which are the types of items used or worn by CCB members to signify membership.

Asked to inform the jury of “the primary activities of the Culver City Boys gang,” Officer Rodriguez replied:  “The [CCB] gang have involved themselves in murder, attempted murder, car jacking, robberies, burglaries, mayhem, rapes.   They've conducted felony vandalisms, possession for sale of firearms, possession for sale [of] narcotics.”   Officer Rodriguez identified two predicate crimes committed by CCB members:  a murder in January 2004 and an attempted murder in June 2003.

Officer Rodriguez was given a hypothetical that tracked the evidence in the Merino shooting.   Officer Rodriguez expressed the opinion that the crime was committed for the benefit of, in furtherance of, or in association with CCB. Officer Rodriguez explained that the refusal of the victim to comply with the demand would have been seen as “disrespect” and that the gang member would have felt the need to send the message that gang members must be obeyed.   The crime benefitted CCB because it created fear and intimidation within the community.   Later, Officer Rodriguez stated that the fact that defendant was wearing a red hat and glove and committed the crime within CCB-claimed territory supported the inference that the crime was committed for the benefit of the gang.   He expressed the opinion that a person committing a crime on his or her own behalf would not do so while flaunting gang symbols.

Officer Rodriguez was given a hypothetical that tracked the evidence in the Garcia shooting.   Officer Rodriguez opined that the crime benefitted CCB because the shooter “dealt with” rival gang members and sent a message to avoid CCB's claimed territory.   The shooter also would have gained respect within the gang and seen his status rise.

C. Verdict and Sentencing

The jury found defendant guilty of all three counts.   Both attempted murder offenses were found to have been committed willfully, deliberately and with premeditation.   The jury also found true the gun use and gang allegations.

The court sentenced defendant to 15 years to life on count one, plus 20 years for the weapon use;  15 years to life on count two, plus 25 years for the weapon use;  and 15 years on count five plus, one year for the weapon use.   The sentence on count five was stayed pursuant to section 654.

DISCUSSION

A. Inherent Improbability (Merino Shooting)

A finding of attempted murder requires evidence of “the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.  [Citations.]”  (People v. Superior Court (Decker ) (2007) 41 Cal.4th 1, 7.) Defendant contends that the finding he intended to kill Merino was “inherently improbable” based on the evidence presented and that, therefore, his due process rights were violated by his conviction of attempted murder in count one.   Defendant contends that the testimony indicating he was standing next to Merino's driver-side door, at least when he fired the first shot, coupled with the evidence that the bullet struck the door, constituted irrefutable proof that he did not intend to kill Merino, as he would have shot through the window had he intended to kill.¹⁸

Defendant essentially challenges the sufficiency of the evidence to support the intent element of the attempted murder charge.  “In determining whether the evidence is sufficient to support a conviction or an enhancement, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”  (People v. Vy (2004) 122 Cal.App.4th 1209, 1224, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, italics deleted.)  “Under this standard, ‘an appellate court in a criminal case ․ does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ”  (People v. Vy, supra, 122 Cal.App.4th at p. 1224, quoting Woodby v. INS (1966) 385 U.S. 276, 282.)   “Rather, the reviewing court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ”  (People v. Vy, supra, 122 Cal.App.4th at p. 1224, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)   An appellate court “will not uphold a judgment or verdict based upon evidence inherently improbable.”  (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another ground in People v. Burton (1961) 55 Cal.2d 328.)   However, “testimony which merely discloses unusual circumstances does not come within that category.  [Citation.]”  (Ibid.) “ ‘To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.’ ”  (People v. Mayberry (1975) 15 Cal.3d 143, 150, quoting People v. Headlee (1941) 18 Cal.2d 266, 267-268.)

With respect to the crime of attempted murder, an inference of malice and intent to kill may be derived from the defendant's act of firing toward a victim at close range, without legal excuse, in a manner that could have resulted in the victim's death if on target.  (People v. Smith (2005) 37 Cal.4th 733, 744.)   In People v. Smith, the defendant was convicted of two counts of attempted murder after firing at a car holding a woman and a baby.   The defendant argued that the fact that he “ ‘fired from a point very near the car, and thus [had] a “high potential for accuracy,” ’ ” but missed the baby, established lack of intent to kill the infant.   The court rejected his contentions:  “[T]he mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime․  ‘The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill․” ’ ”  (37 Cal.4th at p. 741, quoting People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)  “ ‘ “[T]he fact that the victim may have escaped death because of the shooter's poor marksmanship [does not] necessarily establish a less culpable state of mind.” ’ ”  (Ibid.) “[T]he circumstance that the bullet misses its mark or fails to prove lethal [is not] dispositive-the very act of firing a weapon ‘ “in a manner that could have inflicted a mortal wound had the bullet been on target” ’ is sufficient to support an inference of intent to kill.”  (People v. Smith, supra, 37 Cal.4th at p. 741, quoting People v. Chinchilla, supra, 52 Cal.App.4th at p. 690;  accord, People v. Campos (2007) 156 Cal.App.4th 1228, 1244 [after ascertaining vehicle was occupied, defendant sprayed it with bullets from close range indicating intent to kill everyone inside];  People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225 [evidence that defendant directed multiple shots at truck, including two at driver's side door, provided circumstantial evidence of intent to kill].)

The evidence here established that at least one bullet was fired through the lower part of the driver's side door, near where Merino had reclined to take a nap.   Merino testified that he reclined further after defendant drew his weapon in an attempt to escape being shot, and that the bullet missed him “by inches.”   Thereafter, defendant fired multiple shots toward Merino's vehicle while fleeing.   Based on this evidence, defense counsel was entitled to argue, as he did, that the evidence failed to prove intent to kill; ¹⁹  the jurors were free to conclude otherwise.   The fact that Merino was fortunate enough to avoid being struck by one of the multiple shots aimed at him and his vehicle from close range does not lead to an unavoidable conclusion that intent to kill was absent or that the jury's verdict of attempted murder was unsupported.

B. Gang Enhancement

Section 186.22, subdivision (b)(4), the gang allegation charged against defendant, imposes additional punishment for “[a]ny person who is convicted of [certain felonies] committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.”   To impose the additional sentence, both parts must be established-(1) that the offense was “committed for the benefit of, at the direction of, or in association with any criminal street gang” and (2) that the defendant committed the offense with “the specific intent to promote, further, or assist in any criminal conduct” by members of the street gang.  (See People v. Gardeley (1996) 14 Cal.4th 605, 615-616 (Gardeley ).)

“Criminal street gang” is defined 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’ criminal acts enumerated in subdivision (e) of the statute, and which has ‘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.’ ”   (Gardeley, supra, 14 Cal.4th at p. 616, quoting § 186.22, subd. (f), italics deleted, fn. omitted.)  “ ‘[P]attern of criminal gang activity’ ” is defined as “ ‘the commission, attempted commission, or solicitation of two or more’ ․ of the offenses enumerated in [subdivision (e) of section 186.22] ‘provided at least one of those offenses occurred after the effective date of this chapter [September 26, 1988,] and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons.”  (Gardeley, at p. 616, quoting § 186.22, subd. (e), italics deleted.)

Defendant challenges the jury's true finding on the gang allegation contending (1) there was insufficient evidence of CCB's primary activities;  (2) there was insufficient evidence that the Merino shooting was committed for the benefit of CCB;  (3) there was insufficient evidence that the Merino shooting was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members;  and (4) the failure to give CALCRIM No. 358, instructing the jury to view evidence of out-of-court statements attributed to the defendant with caution, casts doubt on whether defendant was a CCB member and thus on the gang allegation finding.

1. CCB's Primary Activities (Both Shootings)

Defendant contends there was insufficient evidence to establish the gang enhancement as to counts one, two and five because the prosecution did not establish that CCB's “primary activities” included the requisite offenses.   Defendant acknowledges that a gang expert's opinion testimony can be used to supply evidence of a gang's primary activities.  (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324 [“Sufficient proof of the gang's primary activities might consist of ․ expert testimony” based on “conversations ․ had with [the defendant] and fellow gang members,” “ ‘personal investigations of hundreds of crimes committed by gang members,’ ” and “information from colleagues in [the expert's] own police department and other law enforcement agencies.”].) Defendant further acknowledges that Officer Rodriguez was asked by the prosecutor to inform the jury of the “primary” activities of CCB. However, because Officer Rodriguez replied that CCB members had “involved themselves” in murder, attempted murder, car jacking, robberies, burglaries, mayhem and rapes and “conducted” felony vandalisms, possession for sale of firearms and possession for sale of narcotics, rather than using the term “primary activities,” defendant contends the expert testimony was inadequate on this crucial point.

Defendant relies on In re Alexander L. (2007) 149 Cal.App.4th 605, in which the prosecution's gang expert was asked to describe the Varrio Viejo gang's primary activities and responded:  “ ‘I know they've committed quite a few assaults with a deadly weapon, several assaults.   I know they've been involved in murders.  [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ ”  (Id. at p. 611.)   The court concluded that the testimony was insufficient to establish Varrio Viejo's primary activities.   The court's decision was not, however, based solely on the wording of the expert's response.  “Even if we could reasonably infer that [the expert] meant that the primary activities of the gang were the crimes to which he referred, his testimony lacked an adequate foundation․  [¶] We cannot know whether the basis of [the expert's] testimony on this point was reliable, because information establishing reliability was never elicited from him at trial.   It is impossible to tell whether his claimed knowledge of the gang's activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay.  [Citation.]”  (Id. at p. 612, fn. omitted.)   For all these reasons, the expert's testimony could not “be considered substantial evidence as to the nature of the gang's primary activities.”  (Ibid.) The court distinguished Gardeley, a case in which “a proper foundation was laid for the expert witness's testimony,” because the expert in Gardeley “based [his] opinion on conversations with the defendants and [fellow gang] members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.”  (In re Alexander L., supra, 149 Cal.App.4th at p. 613.)   Accordingly, “the court [in Gardeley ] knew where the information to which the expert was testifying originated and was able to assess its reliability.”  (Ibid.)

Unlike the expert in Alexander L., Officer Rodriguez provided sufficient background information concerning his training and the sources of his information concerning CCB to support the reliability of his opinions and conclusions.   Thus, the fact that he did not precisely parrot the words of the statute when responding to the question concerning CCB's primary activities does not persuade us that his response should be interpreted as intending to convey that the activities he described were something other than the gang's “primary” activities.  “Ordinary human communication often is flowing and contextual.”  (People v. Margarejo (2008) 162 Cal.App.4th 102, 107.)   “Counsel's questions ․ are not evidence, but the question's wording typically is relevant to a reasonable interpretation of the witness's answer.”   (Ibid.) In Margarejo, the expert responded by listing the gang's “activities” when asked to describe their “primary activities,” just as Officer Rodriguez did here.   The court affirmed, finding that “the jury had ample reason to infer that [the expert's] answer implicitly incorporated the word ‘primary’ from the question.”  (Ibid.) The same is true here, where Officer Rodriguez's response to a question asking about “the primary activities of the Culver City Boys gang” could fairly be construed as describing those activities.

2. Committed for Benefit of Criminal Street Gang (Merino Shooting)

Defendant contends the jury's finding that counts one and five, the attempted murder of Merino and the shooting at his vehicle, were committed for the benefit of a criminal street gang with the specific intent to promote, further or assist in any criminal conduct by gang members was not supported by substantial evidence.²⁰  “ ‘Benefit’ ” as it relates to section 186.22 is properly defined as “anything contributing to an improvement in condition, advantage, help, or profit.”  (In re Alberto R. (1991) 235 Cal.App.3d 1309, 1322.)   To support a true finding under section 186.22, “the record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.”  (People v. Martinez (2004) 116 Cal.App.4th 753, 762, italics deleted.)   An expert opinion that particular criminal conduct benefited a gang by, for example, enhancing its reputation, is sufficient to support a section 186.22 finding.  (See, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [murder of non-gang member benefitted defendant's gang because “violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents who are, as a result, ‘fearful to come forward, assist law enforcement, testify in court, or even report crimes that they're victims of for fear that they may be the gang's next victim or at least retaliated on by that gang ․‘ “ and such fear and intimidation “obviously, makes it easier for the gang to continue committing the crimes for which it is known, from graffiti to murder”];  People v. Romero (2006) 140 Cal.App.4th 15, 19 [gang allegation supported where shooting by Latino gang member occurred in African-American gang territory and expert testified that shootings of African-American men benefitted Latino gang by elevating status of shooters and their gang];  People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 [expert's opinion that drug sale was for benefit of gang, supported by evidence that sale occurred in gang territory, that defendant had permission from gang to sell and that defendant was member of gang].)   As defendant concedes, Officer Rodriguez expressed the opinion that the Merino shooting, which took place in CCB-claimed territory, benefited CCB because it created “fear and intimidation” within the community in which the gang operated.

Defendant notes that there was no evidence that he shouted gang slogans, flashed gang signs or made any reference to CCB during the encounter with Merino, and that Merino was not a member of a rival gang.   Defendant overlooks, however, that the evidence established that in committing the crime, he “flashed” a unique piece of gang attire-the single red glove.   Officer Rodriguez testified that defendant's decision to commit the crime while prominently displaying CCB's colors in this fashion further supported his opinion concerning the reason for the crime's commission.

3. Intent to Promote, Further or Assist in Criminal Conduct by Gang Members (Merino Shooting)

Defendant contends there was insufficient evidence to support the allegation that the Merino shooting was committed with the specific intent to promote, further or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C).  Defendant relies on the decision in Garcia v. Carey (9th Cir.2005) 395 F.3d 1099, where the Ninth Circuit held that a gang enhancement was unsupported because there was no evidence that the defendant committed the crime-robbery-“with the specific purpose of furthering other gang criminal activity” and there was “nothing inherent in the robbery that would indicate that it furthers some other crime.”  (Id. at p. 1103;  accord, Briceno v. Scribner (9th Cir.2009) 555 F.3d 1069, 1079.)   In People v. Romero, supra, 140 Cal.App.4th 15, this court disagreed with the holding in Garcia and declined to follow it.   We held instead that the defendant's specific intent to promote, further and assist in criminal conduct is established if the defendant intended to promote, further and assist the charged offense.  (Id. at pp. 19-20;  accord, People v. Vazquez, supra, 178 Cal.App.4th 347, 353;  People v. Hill (2006) 142 Cal.App.4th 770, 773.)   We continue to adhere to that position.

4. Instruction on Defendant's Out of Court Statements (Both Shootings)

CALCRIM No. 358 informs the jurors that when the evidence includes an oral or written statement made by the defendant before the trial or while the court was not in session, they must decide “whether the defendant made any (such/of those) statements[s], in whole or in part” and are to “[c]onsider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.”   The court has a sua sponte duty to give the instruction when there is evidence of an incriminating out-of-court statement by the defendant.  (People v. Romo (1975) 14 Cal.3d 189, 194.)  “ ‘The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’ ”  (People v. Livaditis (1992) 2 Cal.4th 759, 784.)   Error in failing to give the instruction is reviewed to determine whether there was a reasonable probability that failure to give the instruction affected the verdict.  (Ibid.)

Defendant contends that CALCRIM No. 358 should have been given because his alleged out-of-court statements to Officer Rodriguez's fellow officers acknowledging that he was a member of CCB “formed an important part of the prosecution's case in proving the gang enhancement.”   In fact, there was ample evidence, apart from defendant's alleged admission, to show his gang affiliation (see B.3., ante ), and one need not be a full-fledged member of a gang for section 186.22 to apply.  (In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207;  In re Jose P. (2003) 106 Cal.App.4th 458, 466.)   But assuming the court erred in failing to give CALCRIM No. 358, the error was harmless.   Independent evidence established that defendant associated with CCB members, flashed CCB gang signs and wore CCB items of apparel.   Several witnesses testified that defendant used a gang moniker-“Vampi.”   Officer Rodriguez testified that those attempting to become gang members may commit crimes to benefit the gang.   Accordingly, regardless of whether the jurors were told to view defendant's alleged statements concerning CCB membership with caution, there was no reasonable probability of a different finding on the gang enhancement.

C. Circumstantial Evidence Instruction (Garcia Shooting)

CALCRIM No. 224 provides that before a jury may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, it must “be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.”   CALCRIM No. 224 further provides that before the jury can rely on circumstantial evidence to find the defendant guilty, it must “be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.”   Under the instruction, if jury can draw “two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt,” it must “accept the one that points to innocence.”   The court has a sua sponte duty to instruct on how to evaluate circumstantial evidence to establish an element of the offense whenever the prosecution “ ‘substantially relies on circumstantial evidence to prove guilt.’ ” ²¹  (People v. Rogers (2006) 39 Cal.4th 826, 885, quoting People v. Wiley (1976) 18 Cal.3d 162, 174;  accord, People v. Smith (2008) 168 Cal.App.4th 7, 19 [“CALCRIM No. 224 must be given sua sponte when the prosecution substantially relies on circumstantial evidence or, ․ on both direct and circumstantial evidence to prove guilt.”].)

We agree that the trial court erred in failing to give the instruction.   Respondent contends that the circumstantial evidence of defendant's guilt only “corroborated” the direct evidence of defendant's guilt derived from Galindo's testimony, and that, therefore, no instruction on circumstantial evidence was required.   Galindo was a reluctant witness, who ignored a subpoena and who testified only after being arrested and forcibly brought to court.   Comparing his testimony at trial with his testimony at the preliminary hearing and his statements to police officers, we note that he gave three versions of events-that he did not see anything, that he saw a person wearing a bandana over his face shoot at Garcia, and that he saw “Vampi” or “Vamps” draw a gun and point it at Garcia.   The prosecution did not rely primarily on Galindo's testimony.²²  Rather, the prosecution relied on circumstantial evidence to establish defendant's involvement in the Garcia shooting, including the fact that immediately after the shooting, he gave a red glove, cap and gun to Salinas;  the fact that Merino identified defendant as the man he saw wearing the same red glove and holding a similar weapon;  and the fact that using Salinas's cell phone, defendant called Mendoza to pick him up from a location near the shooting at approximately the time of the shooting.   Without the circumstantial evidence, the prosecution's case would have been considerably weaker.   CALCRIM No. 224 or a similar instruction should have been given.

Failure to give an instruction on evaluation of circumstantial evidence is subject to harmless error analysis.  (People v. Rogers, supra, 39 Cal.4th at p. 886.)   The error here was harmless.   The instruction is intended to advise the jurors to avoid convicting if a reasonable conclusion can be drawn from the circumstantial evidence pointing to innocence.   Here, the circumstantial evidence inexorably pointed toward guilt.   Garcia was an 18th Street gang member, who sported visible gang tattoos.   CCB and 18th Street were rivals.   Defendant was, at a minimum, affiliated with CCB. Casillas identified defendant as the man she saw give CCB-related attire and a weapon to Salinas and use Salinas's cell phone immediately after the Garcia shooting.   Her testimony was corroborated by Trejo and by the items found in the backpack.   Mendoza testified that defendant called her from a cell phone, asking to be picked up on the morning of May 17 near the time of the shooting.   The phone records established that a cell phone belonging to Salinas's father was used to call Mendoza on that date.   The defense provided no innocent explanation for defendant's presence, his possession of a weapon or his efforts to divest himself of the weapon and gang attire.   It is not probable that defendant would have obtained a better result had the subject instruction been given.

D. Pitchess Information

Prior to trial, the defense moved under Pitchess v. Superior Court, supra, 11 Cal.3d 531, 536, seeking discovery of the personnel records of numerous police officers relating to acts of “coercive conduct, bias, dishonesty, planting of evidence, excessive force, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion, and/or probable cause, illegal/seizure (search);  false arrest, perjury, writ[ ]ing false police reports, writ[ ]ing false police reports to cover up the use of excessive force, planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amount[ing] to moral turpitude.”   The court concluded that the only relevant allegation made by defendant to support the request was the allegation that the arresting officer, David Bambrick, planted the red bandana found in his pocket at the time of his arrest.  (See People v. Mooc (2001) 26 Cal.4th 1216, 1226 [to obtain Pitchess discovery, defendant must submit affidavit showing good cause for the disclosure sought].)   Accordingly, the court reviewed Officer Bambrick's personnel file and ordered that information related to one incident be turned over to defense investigators.   Defendant asks that we review the record of the Pitchess review to determine whether the trial court abused its discretion by failing to order disclosure of any other pertinent information.   We have reviewed the sealed transcript of the in camera hearing.   That transcript constitutes an adequate record of the trial court's review of the documents provided to it, and reveals no abuse of discretion.   (See People v. Mooc, supra, 26 Cal.4th at p. 1231.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Pitchess v. Superior Court (1974) 11 Cal.3d 531..  FN1. Pitchess v. Superior Court (1974) 11 Cal.3d 531.

FN2. Undesignated statutory references are to the Penal Code..  FN2. Undesignated statutory references are to the Penal Code.

FN3. Merino was unable to identify defendant's female companion..  FN3. Merino was unable to identify defendant's female companion.

FN4. Merino testified that he found a “bullet” inside his vehicle.   We presume it was the fragment discussed by the officers in court..  FN4. Merino testified that he found a “bullet” inside his vehicle.   We presume it was the fragment discussed by the officers in court.

FN5. Mendoza believed but was not sure defendant was a gang member.   She had taken a picture of him throwing a gang sign for Culver City Boys..  FN5. Mendoza believed but was not sure defendant was a gang member.   She had taken a picture of him throwing a gang sign for Culver City Boys.

FN6. At the preliminary hearing, Garcia had testified that 18th Street and CCB were “not friendly.”.  FN6. At the preliminary hearing, Garcia had testified that 18th Street and CCB were “not friendly.”

FN7. The police officer who arrested Galindo for failing to comply with the prosecution's subpoena testified that Galindo, who was 16, began crying and saying “this could get me killed.”.  FN7. The police officer who arrested Galindo for failing to comply with the prosecution's subpoena testified that Galindo, who was 16, began crying and saying “this could get me killed.”

FN8. At trial, Galindo denied knowing what “hit them up” meant.   In his preliminary hearing testimony, read into the record, he had said it meant “ask[ ] ․ where he was from.”   Galindo testified at the preliminary hearing, and also told police officers during his interview, that after being “hit up,” someone responded “18.”.  FN8. At trial, Galindo denied knowing what “hit them up” meant.   In his preliminary hearing testimony, read into the record, he had said it meant “ask[ ] ․ where he was from.”   Galindo testified at the preliminary hearing, and also told police officers during his interview, that after being “hit up,” someone responded “18.”

FN9. This information was not in the written statement, but was attested to by one of the officers present during Galindo's interview..  FN9. This information was not in the written statement, but was attested to by one of the officers present during Galindo's interview.

FN10. Trejo was shown a picture of a red glove, which he identified as the one the young male was wearing..  FN10. Trejo was shown a picture of a red glove, which he identified as the one the young male was wearing.

FN11. The prosecution's gang expert similarly testified that Salinas was “associated” with CCB..  FN11. The prosecution's gang expert similarly testified that Salinas was “associated” with CCB.

FN12. Although DNA from three individuals was found on the revolver and the cap, none was identified as defendant's..  FN12. Although DNA from three individuals was found on the revolver and the cap, none was identified as defendant's.

FN13. Casillas admitted she was afraid of CCB members and afraid of being a snitch, and that she did not want to participate in the trial.   She had received threatening calls..  FN13. Casillas admitted she was afraid of CCB members and afraid of being a snitch, and that she did not want to participate in the trial.   She had received threatening calls.

FN14. The parties stipulated that Mendoza received a call at 10:32 a.m. from a phone belonging to Vanessa Salinas's father..  FN14. The parties stipulated that Mendoza received a call at 10:32 a.m. from a phone belonging to Vanessa Salinas's father.

FN15. The officer who searched the backpack and found the hat, glove and .38 caliber revolver with aluminum-cased bullets had been involved with the investigation of the Merino shooting.   He asked for a broadcast to be sent telling units to be on the lookout for a black Honda Civic..  FN15. The officer who searched the backpack and found the hat, glove and .38 caliber revolver with aluminum-cased bullets had been involved with the investigation of the Merino shooting.   He asked for a broadcast to be sent telling units to be on the lookout for a black Honda Civic.

FN16. Officer Rodriguez identified graffiti, some in the area of the Garcia shooting, that appeared to have been written by CCB gang members to warn other gangs, particularly 18th Street, to keep out of CCB-claimed territory..  FN16. Officer Rodriguez identified graffiti, some in the area of the Garcia shooting, that appeared to have been written by CCB gang members to warn other gangs, particularly 18th Street, to keep out of CCB-claimed territory.

FN17. One was the photograph taken by Mendoza;  the other Officer Rodriguez found on MySpace..  FN17. One was the photograph taken by Mendoza;  the other Officer Rodriguez found on MySpace.

FN18. Defendant mistakenly states that the evidence indicated the window was broken..  FN18. Defendant mistakenly states that the evidence indicated the window was broken.

FN19. Defense counsel argued:  “[I]f you look at the evidence, the photographs, you see a hole in [Merino's] driver's side door, which is inconsistent with someone shooting directly at him․  If you're shooting at someone from less than a foot away with a snub nose 38, you are not going to miss.”.  FN19. Defense counsel argued:  “[I]f you look at the evidence, the photographs, you see a hole in [Merino's] driver's side door, which is inconsistent with someone shooting directly at him․  If you're shooting at someone from less than a foot away with a snub nose 38, you are not going to miss.”

FN20. The statute also permits a true finding if the jury finds that the offense was committed “at the direction of” or “in association with” a criminal street gang.   There was no evidence that defendant acted at the direction of or in association with anyone from CCB..  FN20. The statute also permits a true finding if the jury finds that the offense was committed “at the direction of” or “in association with” a criminal street gang.   There was no evidence that defendant acted at the direction of or in association with anyone from CCB.

FN21. The Supreme Court has said, however, that the failure to give an instruction on circumstantial evidence does not violate the defendant's federal constitutional rights as long as the jury is properly instructed on reasonable doubt.  (People v. Rogers,supra, 39 Cal.4th at pp. 886-887.).  FN21. The Supreme Court has said, however, that the failure to give an instruction on circumstantial evidence does not violate the defendant's federal constitutional rights as long as the jury is properly instructed on reasonable doubt.  (People v. Rogers,supra, 39 Cal.4th at pp. 886-887.)

FN22. The prosecution had essentially concluded its case when Galindo was unexpectedly spotted by an officer involved in the case, detained and brought to court to testify..  FN22. The prosecution had essentially concluded its case when Galindo was unexpectedly spotted by an officer involved in the case, detained and brought to court to testify.

EPSTEIN, P. J. WILLHITE, J.