APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge. (Super. Ct. No. VCF170418A).
The opinion of the court was delivered by: Levy, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Daniel Hernandez was charged, by fourth amended information, with murder committed by an active participant in a criminal street gang and carried out to further the activities of the gang, and perpetrated by means of discharging a firearm from a motor vehicle (Pen. Code,*fn2 §§ 187, subd. (a), 190.2, subd. (a)(21) & (22); count 1), attempted premeditated murder (§§ 187, subd. (a), 664; counts 2 & 3), and discharging a firearm from a motor vehicle at another person (§ 12034, subd. (c); counts 4-6). Criminal street gang and firearm use enhancements (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d) & (e)(1), respectively) were alleged as to each count.*fn3 A jury convicted him of discharging a firearm from a motor vehicle at another person (counts 4-6), but acquitted him of murder (count 1), and deadlocked on the charges of attempted murder (counts 2 & 3). As to count 4, jurors found that a principal personally and intentionally discharged a firearm, causing death (§ 12022.53, subds. (d) & (e)(1)); as to counts 5 and 6, that a principal personally and intentionally discharged a firearm (id., subds. (c) & (e)(1)); and, as to counts 4-6, that the crime was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)). Appellant was sentenced to prison for an aggregate term of 18 years 4 months, plus 25 years to life. The People elected not to seek retrial on the unresolved lesser included offenses of count 1, or on counts 2 and 3, and those counts were dismissed.
Appellant filed a timely notice of appeal, and now raises various claims of error. In the published portion of this opinion, we will reject his claim the trial court misinstructed the jury by omitting the mental state element with respect to section 12034, subdivision (c). In the unpublished portion, we will reject his other claims of instructional error and his challenges to the insufficiency of the evidence and his sentence.
Around 9:00 or 9:30 on the evening of September 12, 2006, David Stephen, Alex Ramos, and Lorenzo Leon were walking to Stephen's house in Terra Bella from a store a few blocks away. As they turned southbound on Road 237, a dark green Thunderbird passed them, heading north, and then turned toward the mountains on Avenue 96. Stephen and Ramos recognized it as appellant's car. When it first passed, Stephen could hear music coming from the vehicle, but not all that well. He and the others did not think anything was going to happen, as they were acquainted with appellant.
Stephen's group turned onto Camphor. The Thunderbird also turned down Camphor, and Stephen could hear the music more loudly. It was PBC ("Proud By Choice"), which was Norteno gang music and talked about "normal gang stuff" such as violence against Surenos and representing the Norteno color, which is red. The Sureno color is blue; Stephen and Leon were wearing dark blue shirts, while Ramos was wearing a white and blue shirt. Stephen and Ramos were affiliated with Surenos. Leon associated with Stephen and Ramos, but was not a gang member. The three had gone to Porterville High school, as had appellant and Jose Ruiz. According to Stephen, appellant was not affiliated when Stephen first knew him, but then, after appellant was shot in the leg, appellant began associating more with Northerners, the rivals of Southerners.*fn5 Ruiz was a northern gang member. Stephen occasionally saw appellant "throw" the number 4, which stood for 14 and was associated with Northerners, but there were never any problems between appellant and Stephen due to differences in their gang affiliations. This night was not the first time Stephen had heard Norteno music playing loudly from appellant's car, although Stephen did not hear it every time he saw the car.
Just after the car passed Stephen and his companions, somebody -- not appellant -- shouted "Norte" out the window. Stephen's group stopped, and the car stopped in the middle of the street, about a car's length from them. There was a passenger in the vehicle, but Stephen was unable to get a good look at him. Stephen still had no concern, as he and appellant, who was driving, had never had problems. Leon also recognized the car, and said there was nothing to worry about because it was appellant.
Leon walked up toward the passenger window, while Stephen waited by the back of the car. According to Stephen, Leon crouched down about three feet from the window. He looked inside and put up his hands, asking what happened and saying, "Daniel, I thought you didn't bang," and that is when the gunshot was fired. Stephen did not see the gun, but he saw the flash. Leon grabbed his chest and fell. Stephen did not hear appellant or the passenger say anything. He and Ramos began to run toward Stephen's house, and Stephen heard five or six more shots. He turned slightly and saw flashes coming from the car. The upper part of the passenger's body was hanging out of the window, facing their direction. The car remained stopped for perhaps three shots, then Stephen reached nearby apartments and did not see anything more. He did not hear the car leave or any voices coming from it.
According to Ramos, Leon walked up to the passenger's window and asked what was going on. Ramos did not hear appellant or the passenger say anything, but then the hand of the passenger pulled out a gun and shot Leon, who grabbed his chest and fell to the ground. The car then took off. Ramos and Stephen ran up to Leon, who was unresponsive, then Stephen ran off to call the police. Ramos heard two shots and headed for Stephen's house.
Shortly after 10:00 p.m., Tulare County Sheriff's Deputy O'Neill and other officers were responding to a call in an alley south of Camphor, when O'Neill heard what sounded like a gunshot north of their location. O'Neill started running in that direction. When he reached the end of the alley, he saw what appeared to be muzzle flashes reflecting off of trees and houses across the street, and he heard approximately four or five additional shots. Only a few seconds elapsed between the first shot and the other ones. He also saw Ramos and Stephen running, and Leon lying in the street. Leon, who appeared to have been shot one or more times in the center of the chest, was breathing but unresponsive. He was subsequently pronounced dead at the scene.*fn6
At 11:06 p.m., fire suppression personnel were dispatched to a vehicle fire southeast of Terra Bella. Upon arrival, they found a Ford Thunderbird on a dirt access road between two orange groves. The car, which matched the suspect vehicle in the homicide, was fully engulfed in flames.
At the same time Tulare County Sheriff's detectives were being notified of the car fire, Alejandro Hernandez was reporting a vehicle theft. As a result, Detective Hunt went to appellant's residence on Pepper. As he arrived, a red pickup truck pulled up, and Alejandro Hernandez and appellant got out. Hunt learned that the car being reported stolen was a green 1997 Ford Thunderbird. Appellant said it was stolen from in front of the house and that he suspected a neighbor named Rene had taken it. After a field showup involving appellant and Alejandro Hernandez was conducted, Hunt arrested appellant and transported him to the sheriff's substation in Porterville.
Appellant was advised of his rights and gave a statement to Hunt and Detective Fernandez.*fn7 At first, he maintained that the Thunderbird had been stolen, and that he had been home, using the computer, for most of the evening. Appellant denied any knowledge of the shooting. He said that he was not capable of being involved with something like that, and that ever since he had gotten shot, he had been trying to get away from gangs.*fn8 Eventually, however, appellant said that what happened was a surprise. He denied that his having been shot was the motivation for what happened, and denied doing the shooting. He said he went to pick "them" up, and that he knew Jose Ruiz was crazy and always carried guns.*fn9 Appellant related that he always carried one, too, but had it just for show.*fn10 Appellant said they were cruising around, with appellant driving, and there were three guys. They pulled up, and Ruiz pulled out the gun. He said, "hey, what's up," and looked at appellant "and he tell me, he [unintelligible] either shoot him, and he goes, and I told him, no, don't shoot him, and he just, he just turns back and he shoots him ...." Appellant was shocked and never expected Ruiz to shoot. Appellant thought he was just going to shoot up in the air. Appellant related that he left his car by Ruiz's house, and "they" told him to change clothes and take a shower. Ruiz put the gun under a fence by some gas meters.
Appellant admitted knowing Ruiz had a gun; Ruiz told him. He did not tell appellant he was going to shoot, though. When Ruiz got in the car, he pulled out the gun, which he had tucked under his shirt, and started cleaning the bullets. Appellant had an idea he was up to something, but looked at him and judged him as shooting up in the air. Appellant admitted that Ruiz said "Norte" and Ruiz told appellant, as they were getting closer to the group, that "they had shot him." Appellant saw Ruiz shoot at the others. Appellant thought there were about three or four shots, but "things happened so quick" and he "wasn't expecting that."
Appellant stated that he did not have any problems with the person who was shot, although appellant knew who he was and knew he claimed South. However, Ruiz said the same person shot Ruiz's car with a shotgun a week or two before. Appellant had not thought Ruiz was a hardcore Norteno, and Ruiz said that if they got caught, he would take the blame. Appellant denied even touching the gun. He did not know this was going to happen, and he thought the gun was just for show.
Appellant admitted having a red cap with a "T" on it, but it was from before he was shot. He had been "hanging with red" two or three years, but never got "jumped in." He denied having problems with Surenos; ever since he was shot, he tried to get away from them. He did not know why his assailant shot him; he had been wearing blue at the time. Appellant thought he may have said something about the assailant's mother that provoked him. Appellant admitted having fought Southerners, but said he had not been that way since before he got shot. Appellant no longer cared about it and was "not claiming." He admitted still hanging out with Nortenos, however.
A search warrant was executed at appellant's residence at about 3:30 a.m. on September 13. Several items of red clothing, including a United Farm Workers shirt, were found in his room, along with a CD that had "scrap music" handwritten on it.*fn11 Displayed in his room were some blue Dallas Cowboys items.
Appellant's computer was seized. A forensic examination revealed "terrabella4," the user name for a MySpace account that was created on September 12, 2006, at 1:28 p.m. A search for images related to north, south, the number 13, and the number 14 turned up a lot of pictures that had come from what appeared to be MySpace web pages. There were images related to both north and south. It appeared appellant was viewing MySpace web pages, as opposed to uploading images onto the Internet. From an examination of the computer, it was possible to tell the duration of the connection to Internet Explorer, which would be used to access MySpace, but not any log-ins or log-offs to MySpace itself. On September 12, Internet Explorer was running until about 9:51 p.m.
About 5:40 a.m. on September 13, detectives took appellant to Ruiz's house. Appellant showed them where he had left his car, and related that Ruiz had said he was going to burn it. A search of Ruiz's bedroom turned up several items of red clothing, including a red bandanna. A .357 revolver was found in the closet. Tests revealed that the bullet recovered from Leon's body during the autopsy was fired from this gun.
Tulare County Sheriff's Detective Ramirez testified as an expert on gangs.*fn12 He explained that a Northerner is someone who associates with the color red, number 14, and letter N. Nortenos also associate with the Huelga bird, the United Farm Workers symbol that they have adopted. A Southerner is someone who associates with the color blue and number 13. The two groups are rivals.
Ramirez researched appellant and Jose Ruiz in connection with this case. In his opinion, by using the number 4 in terrabella4, his MySpace address, appellant was indicating that he claimed the number 4, which would be Norteno.*fn13 On his MySpace page, appellant indicated that he liked the music of Baby Boy Ene. "Ene" represents the letter N; Baby Boy Ene is northern rap music that is degrading to Southerners and talks about how Northerners are going to kill Southerners and take over their territories. There was a survey on the web page that asked whether appellant had ever been beaten up. He wrote yes, but that it never went unsettled. Ramirez listened to the "scrap music" CD found in appellant's room; it was Norteno music that promoted the northern lifestyle and violence against Southerners. He also listened to the PBC ("Proud By Choice") CD; it contained music that was very derogatory toward southern gang members and talked about shooting and killing them.
According to Ramirez, there are 10 criteria for determining whether someone is a gang member. A person need only meet two unless he identifies himself as a gang member, in which case only one is needed. From everything he reviewed, Ramirez formed the opinion that appellant met several of the criteria for being a northern gang member. Specifically, he admitted association in a custodial facility.*fn14 He also associated with gang members, was involved in a gang-related crime, had gang clothing or attire, and wrote or possessed gang material. Ramirez found the images from appellant's computer to be relevant to his assessment due to the northern activity they contained. There were southern references on the MySpace photos as well, and almost as many Sureno depictions as Norteno ones. Some were very derogatory toward Nortenos. Ramirez could not say that appellant intentionally saved any of the items found in his computer; however, northern and southern gang members will look at each other's MySpace pages to gain information. Ramirez also formed the opinion that Jose Ruiz met multiple criteria for being a northern gang member. By contrast, Lorenzo Leon and Alex Ramos associated with a southern gang, while David Stephen admitted being a southern gang member.
In Ramirez's opinion, a shooting of a Norteno by a Sureno would not go unanswered or unsettled. Moreover, if a Norteno gets in a fight with a Sureno and another Norteno is also present, that Norteno will jump in and assist the first Norteno, basically backing him up. A Norteno would not take a witness along when committing a crime unless it was a comrade who was backing him up. In response to a hypothetical question incorporating the prosecution's version of the evidence in this case, Ramirez opined that the crime was committed in association with, and for the benefit of, the Norteno gang. Ramirez also opined that the shooting would promote or further the gang's conduct. Ramirez conceded, however, that he knew of no communication between appellant and Ruiz about any type of plan relative to what was going to occur on the evening of the shooting, any encouragement or directions appellant gave to Ruiz before Ruiz pulled the trigger, or any proof that appellant had any knowledge of what was going to occur until such time as Ruiz pulled the trigger.
Alejandro Hernandez, appellant's brother, identified the United Farm Workers and other red shirt seized during the search of appellant's residence as belonging to their father. Hernandez had never seen appellant wear either shirt. If those shirts were found on appellant's bed, it was probably because their mother mistakenly left them there when she was doing laundry. Hernandez never discussed gang involvement with appellant or saw him associate with gang members, but did see appellant wear blue clothing. Appellant had a blue Cowboys jersey with the number 31 on it. According to Hernandez, appellant was not a Norteno.
Michael Hurtado, a former gang member who had since obtained multiple college degrees that involved the study of gangs and who was in a doctorate program, testified as an expert on gangs. He was familiar with the 10-point criteria used by law enforcement to identify whether someone is a gang member. Hurtado did not believe that appellant's answers on the classification form constituted an admission of gang membership; instead, the purpose of the questions was the safety of officers and inmates. With respect to the images on appellant's computer, they were about equal in terms of Norteno and Sureno symbols. Some were exceedingly negative and disrespectful from the point of view of the northern belief system. Hurtado would not expect someone who was considered to be a Norteno gang member to have those types of images.
In addition, Nortenos would probably tell appellant that he could not wear a jersey bearing the number 31, because it contained the number 3. In Hurtado's opinion, no Norteno gang member would wear a blue Dallas Cowboys jersey with the number 31 in public, nor would he have it displayed in his room as appellant did. Hurtado acknowledged that appellant also had a blue Cowboys jersey bearing the number 41 displayed, but felt the fact it had the same numerals as 14 did not overcome the fact it was blue. In response to a hypothetical question incorporating the defense's version of the evidence in this case, Hurtado opined that there was "major doubt" whether the shooting was committed for the benefit of, or in association with, a criminal street gang.
Appellant, who was 20 years old at the time of trial, testified that being shot when he was 17 had a large impact on his life. He kept a picture of his leg as a reminder. Appellant wore clothing of different colors. He wore his blue Cowboys jersey to school and in public many times, even though he got "flak" from people he knew to be associated with Nortenos and once got into a fight with a Northerner. Before appellant was shot, he associated with Nortenos in that he hung around with them and talked to them, but he did not participate in crimes with them or back them up in fights. He also hung around with and talked to Southerners. After the fight and the shooting, appellant stopped hanging around with northern and southern gang members, although he still saw them in places and would say hello.
According to appellant, the red shirts found in his room belonged to his father, who associated with the United Farm Workers. Appellant used "terrabella4" for his MySpace page because Terra Bella was where he lived, and the 4 stood for the four Hernandez brothers. The statement on his MySpace page about nothing going unsettled meant that he did not go looking for trouble, but would defend himself when he had to. The images found in his computer were not intentionally generated or saved by him. Although appellant had looked at the MySpace pages of people with southern connections, he did not do so with the intent of gathering information on his enemies. Appellant listened to Norteno and Sureno music; he was not making a statement, but, as a musician himself, liked hearing rhythms.
Appellant had gone to school with Jose Ruiz since sixth grade. He did not think Ruiz was involved in crimes, and believed he merely hung around with gang members. Appellant knew Stephen from school and believed him to be a Sureno gang member. The two had no conflicts, however, and appellant sometimes tried to help Stephen and tell him to stay away from gangs. Appellant was also acquainted with Ramos and Leon, and had no conflict with either of them.
On the night of the events in this case, Ruiz telephoned appellant and asked if he wanted to go cruising, meaning just driving around town. It did not mean they were looking for trouble. Appellant picked Ruiz up about 8:30 p.m., and they made quite a few circuits of Terra Bella, which is a small town and in which practically everyone knew appellant's car. As they drove, they talked about what they were doing that summer. Appellant was under a lot of pressure, and cruising helped relieve his stress.
About five minutes after they started cruising around, Ruiz took out a revolver that he had in his waistband with his shirt over it, and started cleaning the bullets with his shirt. After less than a minute, Ruiz loaded the revolver up and put it away. Appellant got a little nervous, but thought Ruiz was trying to show it off. Appellant had heard that Ruiz had guns, but this was the first time appellant had seen that gun. When appellant himself was shot, he never got a gun to start hunting the perpetrator down. Instead, he left it up to the authorities. It was a painful experience for him and his family, and he did not wish it on anyone else. When appellant saw the perpetrator around town, he notified his father, who called the authorities. When Ruiz took out the gun, appellant did not expect anything bad to happen. It did not occur to him that Ruiz might have a plan to go out and shoot somebody. Ruiz never communicated any such plan to appellant, and appellant never gave him any encouragement. Ruiz was not wearing anything to indicate he had some type of gang motive that evening, nor was appellant.
At some point, Ruiz told appellant to pull over. As appellant did so, the other group came into view. Right before they pulled over, Ruiz told appellant that one of them had shot at him a few days earlier.*fn15 As appellant stopped, and before the others passed the car window, Ruiz yelled out, "what's up." Only a couple seconds elapsed between when Ruiz told appellant about the prior incident and when he called ...