APPEALS from a judgment of the Superior Court of Riverside County, Patrick F. Magers, Judge. Affirmed. (Super. Ct. No. RIF132924)
The opinion of the court was delivered by: Benke, Acting P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted Salvador Munguia and Sergio Rodriguez of attempted murder (Pen. Code,*fn1 §§ 664/187, subd. (a), count 1), two counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 2, 3), and of actively participating in a criminal street gang (§ 186.22, subd. (a), count 4). The jury found both Munguia and Rodriguez committed counts 1, 2 and 3 for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The jury also found both Munguia and Rodriguez were principals to the commission and attempted commission of count 1 and at least one principal intentionally discharged a firearm and proximately caused great bodily injury to another person. (§ 12022.53, subds. (d), (e)). Further, the jury found Rodriguez personally committed count 1 with the use of a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). Finally, the jury found, as to both Munguia and Rodriguez, the commission of count 1 was not willful, deliberate or premeditated. The trial court sentenced Munguia and Rodriguez each to an indeterminate 25 years to life in state prison plus a determinate seven years.
On appeal, both Munguia and Rodriguez contend the trial court erred in failing to instruct the jury sua sponte with attempted involuntary manslaughter as a lesser included offense of attempted murder. Munguia also contends there is insufficient evidence to support the jury's verdicts on all four counts. Rodriguez similarly contends there is insufficient evidence to support the jury's verdicts on counts 2, 3 and 4. Finally, Rodriguez contends there is insufficient evidence to support the jury's findings that he committed counts 1, 2, and 3 for the benefit of, at the direction of, or in association with a criminal street gang. Both defendants join in the other's arguments on appeal. As we explain, we disagree with these contentions and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND*fn2
Munguia and Rodriguez were active members of an Hispanic criminal street gang known as the Edgemont Locos (EML). Founded in the mid to early 1980's, by 2006 EML was the largest Hispanic criminal street gang in Moreno Valley with over 40 active members. The core membership of EML attended Moreno Valley High School. However, in early 2006, a new criminal street gang, known was the Brown Pride Crew (BPC) was beginning to form. By September 2006, law enforcement began seeing BPC tagging in the Moreno Valley neighborhoods near Canyon Springs High School and also identified five or six people claiming to be part of BPC.
A. Incident of September 21, 2006
In September 2006, Manuel Ramos (Manuel) and his younger brother Ruben were students at Canyon Springs High School. Manuel and Ruben were also BPC members. On September 20, 2006, a friend of Manuel got into a fight and was thrown to the ground by another student during physical education class. As Manuel's friend lay on the ground, Rodriguez's younger brother Jonathan, a fellow student who was not involved in the fight, went through Manuel's friend's pockets and took his money and cellular phone. At the time, Jonathan, like his older brother Rodriguez, was an EML member. The next day, September 21, 2006, Manuel challenged Jonathan to a one-on-one fight in order to get even with Jonathan for stealing from his friend. The fight was scheduled to take place after 3:00 p.m. in a large area behind the high school known as "Poorman's Reservoir" or the "Wash" (the Wash).
That afternoon, Manuel went down to the Wash in order to fight Jonathan as planned. He was accompanied by his younger brother Ruben, his friend Michael Rodriguez (Michael) and two female acquaintances. Meanwhile, Manuel and Ruben's older brother Robert and their cousin Javier Hernandez (Javier), had driven to the school to pick up Manuel and Ruben. When Manuel and Ruben were not out front, Robert and Javier drove behind the school. After driving about halfway into the Wash, they located Manuel and Robert.
As he was walking in the Wash, Michael heard a whistle and a "bunch of guys came out of nowhere." Manuel also became aware of the large group of around 15 to 20 men and concluded that he and his friends had walked into a "trap." Michael described the men as "Mexican [¶] gangsters." He also stated the men were big and muscular with tattoos of words and pictures. Additionally, Ruben, Michael and Manuel each characterized the men in the group as being associated with EML. As the large group walked forward, they "threw" what appeared to be EML gang signs. The group was armed with a "whole bunch of guns," a machete, a sawed-off shotgun and baseball bats. As active EML members, both Munguia and Rodriguez were present in the group at the Wash.
Noticing they were outnumbered and unarmed, Manuel and his group decided not to fight and started walking away. As they were leaving, the larger group caught up with them and one of them yelled "come here you little bitches, why you fucking running?" Another EML member, Rueben Hernandez, also stepped forward and shouted: "This is Tiny from Edgemont Locos." Rodriguez then approached Manuel and said, "I heard you want to fight my brother[,]" referring to Jonathan. Feeling cornered and aware that his two younger brothers were scared, Robert jumped in front of Rodriguez as he was about to punch Manuel. Another member of the larger group also "started walking down on" Javier, challenging him to fight. Javier tried to avoid an altercation by responding, "I ain't gonna get down." Nevertheless, the two men started fighting.
During a break in the fight, someone threw "a big chunk of cement" at Robert, striking him on the head. The fight continued as Robert and Rodriguez wrestled on the ground. In the midst of this, Rodriguez took out a gun and shot Robert in the abdomen. Robert testified he only threw two punches before he was shot. Robert also testified that after being shot, he "lost [his] air," remembered sucking blood and "thought [he] was going to die right there."
Meanwhile, Hernandez, also known as "Tiny," hit Javier over the head with a baseball bat. The first hit caused Javier to fall to the ground face first, and then Javier was hit again after a matter of seconds. Ruben was also struck on the back of the head with a baseball bat.
After Rodriguez shot Robert, everyone ran away. Manuel and Ruben then tried to carry Robert back to Javier's car. As they were leaving, ambulances arrived and transported the injured individuals to the hospital. Robert underwent abdominal surgery and spent two weeks in the hospital recovering, Javier needed stitches to both sides of his head and Ruben was given medication for his head injury.
Riverside County Sheriff's Detective Lance Colmer (Detective Colmer) interviewed Robert, Ruben, Michael and Manuel, among others, in connection with the incident that occurred on September 21, 2006. Robert specifically told Detective Colmer that Rodriguez was the man who shot him. Ruben, Michael and Manuel also identified Rodriguez as the shooter. In addition, Ruben described the weapon as a "silver or chrome colored handgun [¶] partially wrapped in a white T-shirt." Lastly, when shown a photo lineup, Ruben and Robert recognized Munguia as being present at the Wash.*fn3
B. Gang Allegation Evidence
Detective Colmer, a member of the special enforcement team gang unit at the Moreno Valley police station, testified as the prosecution's gang expert. Detective Colmer defined a criminal street gang as "an ongoing group or organization with three or more members having a common name, sign, or symbol, and that those members either individually or collectively commit a sustained pattern of criminal activity." He also testified to the following: in 2006, EML was the largest Hispanic criminal street gang in Moreno Valley; EML possessed several gang signs and symbols; EML's primary activities included narcotic sales, burglaries, tagging, vandalism and violent assaults; tagging is a form of graffiti used by gangs to mark their turf area and to write threats to rival gangs who might try to come into that area and gangs, including EML, control their turf or territory by intimidation and fear.
Detective Colmer further stated that Hispanic gangs are loose networks based on an individual's level of criminal sophistication and longevity in the gang. "Soldiers" put in work by committing crimes for the gang; the more work you put in, the more respect and status you gain within the gang. Detective Colmer also testified to several specific crimes committed by known EML members. First, EML member Gerardo Perez committed, and was subsequently convicted of, attempted murder on January 17, 2003. Second, EML member Herman Ramirez committed, and was subsequently convicted of, possession of a gun on March 24, 2005. Third, Munguia committed, and was subsequently convicted of, felony vandalism on November 18, 2005. Detective Colmer personally caught Munguia in the act of spray painting "EML" on a fence within the EML turf area. In all three incidents, the defendants were each convicted of section 186.22, committing the crime for the benefit of, at the direction of, or in association with a criminal street gang.
In addition, Detective Colmer testified that gang members identify their affiliation to a particular gang by particular tattoos and within each gang, members are identified by their nicknames or "monikers." Specifically, Detective Colmer indicated that Munguia's gang moniker was "Chava," he had several EML tattoos on his chest, back and ears and an October 25, 2006 search of Munguia's house revealed several items bearing symbols of the EML gang.
Detective Colmer indicated that Rodriguez had a similar EML tattoo on his elbow and his gang moniker was "Ziggy." The jury was further provided with several photos, including one collected from Rodriguez's home, depicting both Munguia and Rodriguez simultaneously holding up EML gang signs. Detective Colmer stated that the presence of these photos in Rodriguez's home tends to show continued affiliation or membership in the gang.
In early September 2006, Detective Colmer also came across both Munguia and Rodriguez in the EML turf area hanging out with fellow EML members. Based on the foregoing, Detective Colmer opined that both Munguia and Rodriguez were active EML members on September 21, 2006.
Detective Colmer testified that members of a gang are expected to participate in crimes with other members as well as support their fellow members in a fight. According to Detective Colmer, generally a gang benefits from arriving in a group, with weapons, and announcing its name because it allows the gang, by way of intimidation, to control its victims and those who witness the crime. Intimidation and the fear of retaliation dissuade victims and witnesses from identifying members of the gang, thereby protecting the members from criminal prosecution. ...