The opinion of the court was delivered by: Butz ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 defendants Ricky Devon Taylor V and Rodney Charles Buckley, Jr., each of two counts of attempted murder, and found true the gang enhancement that these offenses were committed in association with a criminal street gang. (Pen. Code, §§ 664/187, 186.22, subd. (b)(1).)*fn1 Buckley's sentence was further enhanced based on findings that he personally and intentionally discharged a firearm during both attempted murder offenses, causing great bodily injury. (§ 12022.53, subd. (d); two enhancements, each 25 years to life). These two firearm enhancements were also applied to Taylor based on his status as a principal in the attempted murders, his gang enhancement finding, and Buckley's (i.e., another principal's) firearm discharges. (§ 12022.53, subd. (e)(1)).*fn2
On appeal, the two defendants principally contend the evidence is insufficient to show a "criminal street gang," as required to sustain the gang enhancement. We agree and shall reverse the gang enhancement for both defendants. We reject, however, several contentions from Buckley, which allege, essentially, that his convictions should be reversed because he was prejudiced by the gang evidence in this case.*fn3
Our resolution results in a reduction in Buckley's aggregate (determinate and indeterminate) sentence from 72 years eight months to 59 years four months; and a reduction in Taylor's aggregate sentence from 61 years four months to 11 years four months. This discrepancy in the sentence reductions results from the following: (1) Buckley's sentence under the gang enhancement (13 years four months; § 186.22, subd. (b)) is vacated, but his enhancement sentence of 50 years to life remains intact on the two enhancements for personally and intentionally discharging a firearm, causing great bodily injury, during both attempted murder offenses (i.e., each of these two enhancements is 25 years to life; § 12022.53, subd. (d)); (2) Taylor's sentence of 50 years to life on these two enhancements is vacated because these enhancements were based vicariously on his gang enhancement finding, a finding we reverse (§ 12022.53, subd. (e)(1)). We also correct a clerical error in Taylor's abstract of judgment concerning his convictions. As so modified, we shall affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2006, then-17-year-old Taylor lived in an apartment with his girlfriend, Larryssa Way, and another couple, Sara Scott and Rodney Alexander.
Three or four days before, Scott had written the name "Gerald" on Way's back as a joke. Gerald was Way's boyfriend prior to Taylor. This inscription did not sit well with Taylor, and various verbal and physical confrontations ensued between Taylor and Scott/Alexander on November 30.
These confrontations prompted Scott and Alexander to leave the apartment and go to the home of Scott's father, Alfred O'Neal, one of the two victims here. As she was leaving the apartment, Scott gathered some belongings, including a nine-millimeter handgun, which O'Neal had given her because of rapes in the area; Way yelled, "No, Sara [Scott], no guns, no guns," and that set Taylor off further. Taylor yelled to the departing Scott and Alexander, "nigger, it's gun play," and apparently added, "The North Highlands Gangster Crips will all be up in here."
Scott told her father, O'Neal, what had happened at the apartment. Alberto Richard, Scott's "cousin" and the second victim here, was at O'Neal's too.
Way later called Scott at O'Neal's, stating that Scott needed to return to the apartment because Taylor was messing up her property. (At trial, Scott identified a picture of her TV set, as well as a poster--each bearing the inscription "My nigga's gonna kill you"--which were not so adorned before she and Alexander had left the apartment.)
Richard, who knew Taylor, offered to go to the apartment and get Scott's things. (Richard identified himself and Taylor as North Highlands Gangster Crip gang members.)
As O'Neal and Richard were about to leave for the apartment in O'Neal's van, Scott asked O'Neal if he wanted the nine-millimeter handgun. O'Neal initially declined, but then changed his mind and took the weapon.
At the apartment, Richard knocked on the door while O'Neal waited in the van. Taylor greeted Richard at gunpoint with a handgun. Buckley, holding a pistol-grip shotgun nearby, then pat-searched the unarmed Richard. Richard was taken aback--wondering why someone with whom he had just had Thanksgiving dinner (Taylor) was holding a gun on him. (That dinner, in fact, had been at O'Neal's house, with Way and Taylor, Scott and Alexander, Richard and perhaps Buckley, attending.)
After Richard explained his presence and stated that his uncle was outside waiting in the van, nerves soothed and guns were withdrawn.
A few minutes later, however, another knock was heard on the door and anxiety gripped defendants anew. Richard said it was probably O'Neal, which it was. While waiting in the van, O'Neal had received a call from Way who said that Taylor and Richard were arguing.
Defendants "greeted" O'Neal in the same manner they had Richard, with guns drawn. O'Neal stated that Taylor added the salutation, "North Highlands Gangster Crip," and that Taylor also said "he'd lay [O'Neal] down." O'Neal was aghast, having just had Taylor over for dinner. But O'Neal was not as solicitous as Richard. O'Neal refused to be searched, grabbed the barrel of Taylor's gun, and the two of them began to wrestle (O'Neal was armed with the nine-millimeter).
According to Richard, Taylor broke free from O'Neal and then began firing at O'Neal from the kitchen. O'Neal returned the fire. At this point, Buckley began firing at O'Neal. When Richard noticed that Buckley had a clear shot at O'Neal, he stepped in between the two of them, saying "no" and holding his hands up in a "do not shoot" pose. Buckley shot Richard in the chest. Richard heard two distinct shots from the shotgun; a third shot attempt malfunctioned.
According to O'Neal, as he and Taylor began to wrestle, he (O'Neal) heard a shotgun blast and heard Richard say "I'm shot." As O'Neal and Taylor struggled, O'Neal heard another "boom" and felt a shotgun blast hit him in his left flank.
O'Neal and Richard managed to escape the apartment through a flurry of bullets unleashed by O'Neal.
O'Neal's shotgun injury left him with a limp. Richard's shotgun injuries were very serious, threatening his heart. Buckley sustained gunshot wounds to his left arm and chest, and Taylor was hit as well.
A gang detective, Jamin Martinez, testified as an expert on the issue of the gang enhancement. We will set forth the pertinent parts of his testimony when we discuss the issue of this enhancement's evidentiary sufficiency.
Buckley rested without presenting witnesses.
The highlight of Taylor's case was a police officer who interviewed O'Neal in the hospital shortly after the shooting. O'Neal did not mention to the officer that Taylor had made any gang-related statements; or that the two defendants were wearing blue bandannas or rags on their faces, as O'Neal had testified to at trial--in a manner inconsistent with Richard.
Prosecution and Defense Theories of the Case
The prosecution's theory was that this was a gang-related confrontation and shooting to avenge the disrespect shown to Taylor by Scott's inscription of "Gerald" on the back of Taylor's girlfriend, Way.
The defense theory was self-defense and defense of another, in which the shooting arose merely out of a personal dispute among roommates and was initiated by O'Neal's ...