Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed in part and reversed in part. (Super. Ct. No. 07CF3182)
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted Vincent Julian Valdez, Jr., of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism (Pen. Code, § 186.22, subd. (a)), arising from two separate drive-by shootings.*fn2 The jury also found numerous enhancement allegations to be true, including that Valdez committed the underlying offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)), was armed and vicariously discharged a firearm in the first drive-by shooting (§§ 12022, subd. (a)(1), 12022.53, subds. (d) & (e)(1)), and personally used and discharged a firearm in the second shooting (§§ 12022.5, subd. (a); 12022.53, subd. (c)).
Valdez raises a host of contentions on appeal. In the published portion of this opinion, we address Valdez's challenge to a trial exhibit consisting of printouts of his MySpace social media internet page, which the prosecution's gang expert relied on in forming his opinion Valdez was an active gang member.
In the unpublished portion of the opinion, we address Valdez's remaining contentions. Specifically, he argues the trial court erred by denying his motion to sever the street terrorism counts from the underlying assault and attempted murder counts, and to bifurcate the gang allegations. He contends the trial court both violated his confrontation rights and abused its discretion under Evidence Code section 352 by admitting statements the second shooting victim made in a 911 call and at the scene to a responding officer. Valdez also raises objections under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) to the admission of a tape-recorded statement he gave to investigating officers. Finally, Valdez asserts five separate challenges to the sufficiency of the evidence to support his conviction for two counts of street terrorism and the gang enhancement allegations attached to several underlying counts. As we explain, only Valdez's challenge to the gang enhancement on the second shooting has merit, and we therefore reverse the enhancement and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Around 6:30 p.m. on April 27, 2007, rival gang members in a red Honda fired shots at Isaac Villa, a member of the T.I.U. gang ("Toke It Up" or "Tag It Up"), and at Alex Urzua and Ali Hammad Guzman. The three were walking on West Alton Avenue near South Timber Street in Santa Ana. Villa had previously been involved in violent confrontations with members of the T.L.F. ("Thug Family Life") gang. The victims recounted that in the present shooting, Valdez, known by his T.L.F. gang moniker, "Yums," drove the Honda, accompanied by four or five other T.L.F. members. Before the shooting, Valdez made a U-turn, drove back, and stopped in front of Villa's group. Someone yelled out from the car, "T.L.F.," and the front passenger extended his hand out the driver's side window and fired shots at Villa's group. One bullet hit Urzua in the leg, and the car sped away. Villa and Hammad carried Urzua to Hammad's house and called for an ambulance. Two of the shooting victims knew Valdez by his "Yums" moniker, and one of them noted he recognized Valdez from Valdez's MySpace web page.
A few months later, around 2:45 a.m. on July 29, 2007, Valdez parked an older model maroon Cadillac in an Anaheim fast food restaurant parking lot. At least one passenger, Robert Quinones, was in the vehicle with Valdez. Jonathan Kincaid, an admitted member of the Monte Black Gangster Crips who had dated Valdez's sister, rode by on a bicycle. Unlike T.I.U., Kincaid's gang was not a T.L.F. rival, nor was Kincaid riding in territory claimed by T.L.F. A witness in the parking lot observed Valdez and Quinones quickly close the doors on their vehicle and speed off after Kincaid. Valdez fired at least one shot at Kincaid, but missed. Kincaid rode his bicycle to a nearby convenience store and called 911 within a minute of the shooting. He stated the driver of the car had shot at him, a backseat passenger held a shotgun, and he spotted four occupants in the vehicle, who he claimed were T.L.F. members.
An officer responded within seven minutes of Kincaid's 911 call, obtained some details from Kincaid, who now claimed only two people were in the vehicle and that Valdez, whom Kincaid knew, was the driver. The officer then departed when he was dispatched to help another officer pursuing Valdez's vehicle. The pursuing officer stopped the vehicle, occupied only by Valdez and Quinones, and found gunpowder on both hands of both men. The bystander who observed Valdez and Quinones in the fast food restaurant parking lot identified them in a curbside lineup.
Kincaid had suggested in the 911 call that he had a restraining order against his former girlfriend, who was Valdez's sister. But in a later police interview, Kincaid admitted he was the one who had been arrested in a domestic disturbance for harassing Valdez's mother.
Following the jury's verdict, the trial court sentenced Valdez to a total term of 46 years in state prison, consisting of a seven year term for attempting to murder Kincaid, with an additional 10 years for the gang enhancement, and twenty years for a firearm enhancement, plus a two year, four month consecutive term for the attempt on Villa's life in the first shooting, with an additional six years, eight months for a firearm enhancement. Valdez now appeals.
A. Severance and Bifurcation
Valdez argues the trial court erred by denying his pretrial motion to "bifurcate" the substantive gang counts (§ 186.22, subd. (a)) and the gang allegations (§ 186.22, subd. (b)) from the attempted murder and assault with a firearm charges. While we agree it is "confus[ing]" (People v. Burnell (2005) 132 Cal.App.4th 938, 946, fn. 5), severance, not bifurcation, is the proper term for disengaging substantive counts for separate trials. Bifurcation refers to determining within the same trial the underlying substantive count before submitting the punishment allegation to the jury. (Ibid.). In effect, Valdez sought both severance and bifurcation, and we address these contentions together because they overlap.
Section 954 authorizes joinder of offenses for a single trial if they are "connected together in their commission," but the trial court retains discretion to sever the counts "in the interests of justice . . . ." Enhancements, by definition, are inherently connected to the underlying offense, but as our Supreme Court has recognized, the trial court's broad discretion to control the conduct of proceedings (§ 1044) furnishes the trial court with ample authority to bifurcate an enhancement allegation (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1049 (Hernandez)). The party seeking severance of substantive counts or bifurcation of an enhancement has the burden to "clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." (People v. Bean (1988) 46 Cal.3d 919, 938 (Bean); accord, Hernandez, at p. 1051.)
The factors trial courts must consider in deciding whether to sever charges are: "(1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses; and (4) is any one of the charges a death penalty offense, or does joinder of the charges convert the matter into a capital case. [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 27-28.) We review the trial court's ruling for abuse of discretion, bearing in mind the defendant's burden to show prejudice from joinder. (Ibid.) "A determination that the evidence was cross-admissible ordinarily dispels any inference of prejudice" from the joinder of substantive counts. (Id. at p. 28.) The same is true on the question of whether to bifurcate an enhancement allegation. (See Hernandez, supra, 33 Cal.4th at pp. 1049-1050 ["To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary"].)
Here, the trial court reasonably could conclude evidence of Valdez's active gang participation (§ 186.22, subd. (a)) and evidence relevant to the gang enhancement (§ 186.22, subd. (b)) were also relevant and cross-admissible concerning the underlying attempted murder and assault charges. Simply put, the gang evidence tended to show a motive for Valdez's commission of these offenses. "Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168; see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 ["'because a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence'"]; accord, People v. Martin (1994) 23 Cal.App.4th 76, 81-82 [gang activity or membership admissible as to motive, though damaging to defense].)
Valdez contends the second shooting in which he allegedly fired a gun at Kincaid had nothing to do with any criminal street gang, but rather is best explained by personal animus, based on Kincaid's involvement with Valdez's sister and Kincaid's arrest for harassing Valdez's mother. The prosecutor, however, informed the trial court at the time of Valdez's pretrial severance and bifurcation motion that the evidence would show someone in Valdez's vehicle called out "T.L.F." as shots were fired at Kincaid. According to the prosecutor, this announcement mirrored an identical pronouncement at the first shooting and showed that both were gang-related. As it turned out, the prosecutor was able to produce evidence of a "T.L.F." shout only at the first shooting, but we evaluate a trial court's severance and bifurcation decision based on the record at the time of the court's ruling. (People v. Calderon (1994) 9 Cal.4th 69, 81, fn. 6; People v. Hardy (1992) 2 Cal.4th 86, 167.) Valdez's challenge therefore fails.
B. 911 Call and Statement to Responding Officer
Valdez contends the trial court violated his confrontation rights by admitting Kincaid's 911 call from a convenience store and statements Kincaid made to an officer who responded to the store minutes later. The 911 transcript reflected Kincaid made the emergency call approximately one minute after his assailants shot at him, and Officer Clint Cavaness arrived at the convenience store within seven minutes, while Kincaid was still on the line with the 911 dispatcher. Cavaness testified he spoke with Kincaid, who appeared "shaken up," for "a couple minutes," but Cavaness soon departed to assist an officer tailing "a possible suspect vehicle in the area," which proved to be Valdez's.
After Valdez's arrest, Cavaness interviewed Kincaid at Kincaid's nearby home, but the trial court excluded Kincaid's statements in this interview because it was remote from the shooting and Kincaid did not testify. Kincaid, who was on probation at the time of the shooting and admitted during the 911 call he was out past his probation curfew, invoked the Fifth Amendment despite a grant of immunity, and was therefore unavailable to testify at Valdez's trial. (People v. Smith (2003) 30 Cal.4th 581, 623 [a courtroom witness may be unavailable if he or she refuses to testify].) Valdez does not challenge the trial court's threshold conclusion Kincaid was unavailable, but instead argues that admitting Kincaid's 911 call and convenience store statements violated the Sixth Amendment. We disagree.
As the United States Supreme Court has explained, the Constitution does not erect a general, federal bar to hearsay in criminal prosecutions, but rather only to unconfronted testimonial statements, and the high court has observed that testimony is "typically a '[s]olemn declaration or affirmation made for the purpose of establishing or proving some fact.'" (Crawford v. Washington (2004) 541 U.S. 36, 51 (Crawford).) The court has specifically addressed 911 calls and follow-up investigations, as follows: "Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted.)
Valdez argues Kincaid's 911 call and statements to the arriving officer fell outside the ongoing emergency scenario because Kincaid "had reached a place of relative safety" at the convenience store, "those guilty of the drive-by had long since fled," Kincaid had a motive to implicate Valdez based on "hostilities" involving Valdez's sister and mother, and because, according to Valdez's attorney, Kincaid ...