P. v. Gutierrez CA4/2

• Court: California Court of Appeal
• Decided: June 10, 2013
• Docket: E053552
• Status: Unpublished

Opinion

Filed 6/10/13 P. v. Gutierrez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant, E053552

v. (Super.Ct.No. RIF149458)

CRUZ ALONZO GUTIERREZ et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,

Judge. Affirmed in part, reversed in part.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant

and Appellant Cruz Alonzo Gutierrez.

Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and

Appellant Monique Yvonne Garcia.

Paul E. Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney,

for Plaintiff and Appellant.

1 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and William M. Wood and

Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

In this case, defendants and appellants Monique Yvonne Garcia (hereafter,

Defendant Garcia) and Cruz Alonzo Gutierrez (hereafter, Defendant Gutierrez) were

convicted by separate juries of attempted murder, assault and active participation in a

criminal street gang. Both defendants and the People appeal the judgment.

Defendant Gutierrez contends: (1) his statement regarding gang affiliation during

booking was admitted in violation of his Fifth Amendment right against self-

incrimination; (2) the trial court erred by failing to instruct the jury on the meaning of the

term “in association with any criminal street gang”; (3) there was insufficient evidence to

support the gang enhancement; (4) there was insufficient evidence to support his

conviction of active gang participation; (5) he was denied due process when the gang

expert was allowed to testify that his acts were committed for the benefit of, in

association with, or at the direction of a criminal street gang; (6) the prosecutor

committed misconduct in failing to properly prepare the witnesses; (7) CALCRIM No.

372 is unconstitutional; and (8) the trial court abused its discretion in denying his posttrial

Marsden1 motion.

1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

2 Defendant Garcia contends: (1) her convictions must be reversed because the

prosecutor presented the jury with a legally incorrect theory of conviction; (2) the

prosecutor committed misconduct, violating her constitutional rights, by eliciting

evidence that the deputies conducted a probationary search of her home, which was

prohibited by the court‟s pretrial rulings; (3) the gang expert improperly opined that she

was guilty of the attempted murder and felony assault charges; and (4) the cumulative

error doctrine applies. Each defendant joins in the issues raised by the other defendant.

The People appeal, contending the trial court‟s postverdict dismissal of the gang

enhancements and gang offenses constitutes error because there was legally sufficient

evidence to support those charges.

I. STATEMENT OF FACTS

On March 27, 2009, D.H. celebrated her 13th birthday with a party at her family‟s

home in Moreno Valley. Her adult sisters, Priscilla and Christina, served as chaperones,

along with Christina‟s boyfriend, Ricardo Williams, also called Scrappy. More than 10

teenagers attended the party, including 14-year-old J.G., who came as a friend of one of

the guests. About 11:00 p.m., Christina and Williams left, and J.G. sent a text message to

her sister, Defendant Garcia, for a ride home.

Defendant Garcia arrived at the house and pounded on the back door. When she

walked in, she asked for J.G., acting “crazy, upset about something.” Although her sister

was in the next room, Defendant Garcia yelled and screamed, saying, “„Where‟s my

sister?‟” A 16-year-old “skinny guy” named Jonathan O. (also called “Fez”) said

something like, “„The party‟s in my pants,‟” or “„She‟s in my pants.‟” As Defendant

3 Garcia became angry and yelled and cursed at Jonathan, she told J.G., “„Go to the car or

I‟m going to slap you.‟”

Defendant Garcia announced that she had friends from Edgemont and was going

to have “„Tokes, Toker, . . . something to that effect‟” come over, “„bring a strap‟” and

“take care of this kid‟” and “„hit up the house.‟” Defendant Gutierrez is known as

“Tokes.” Jonathan apologized; however, Defendant Garcia said it did not matter, and

that he needed to be “taken care of and taught a lesson.” She called someone and told the

person to “„bring the homies,‟” “„bring guns,‟” and “„you need to get over here and

handle these people.‟” Jonathan heard her say “Tokes” during the call.

Concerned that something bad would happen, Priscilla called Christina and told

her someone was threatening to shoot up the house, and asked if Williams would return

with help. Christina could hear someone yelling in the background that sounded like,

“„[b]ring a strap,‟” or “„bring guns,‟” and “„[c]ome over [and] . . . shoot everybody up,‟”

but she assumed the argument was among some of the kids at the party. Christina sent

Williams back to the party to check on the situation.

Meanwhile, D.H.‟s mother told Defendant Garcia to leave, and the two argued

outside. Defendant Garcia remained on the phone, telling the person on the other end to

hurry up. When Williams arrived, he attempted to defuse the situation. He reminded

Defendant Garcia there were children in the house and that Jonathan was just a kid who

had made an offensive comment. Defendant Garcia said she did not care, that she was

calling her “homies from Edgemont,” and that something was going to happen. She

added, “„No one disrespects me.‟”

4 A red car pulled up and three men wearing black hoodies and gloves got out.

Williams thought the men were dressed in all black, as if “on a mission.” Defendant

Garcia pointed to D.H.‟s mother and told the men, “„Hey, that‟s the bitch right there.‟”

After asking Defendant Garcia whether this was really necessary, Williams turned to

D.H‟s mother and said, “„This don‟t look good.‟” Williams saw that one of the men had

a gun that he later recognized as a revolver. He walked into the street to try to dissuade

the men, saying, “[T]his ain‟t going down right here.” Someone told him, “„Step to the

side, because it is.‟” At some point, Williams shouted, “„Run,‟” and D.H.‟s mother

ordered the kids into the house.

As Williams prepared to fight the man with the gun, another man “sliced”

Williams‟s throat. The man with the knife said, “„Blast that fool,‟” and the gunman shot

Williams in the arm. Several more shots were fired as Williams ran away. During the

attack, one or more of the assailants said, “„Edgemont, Edgemont.‟”

After Williams left, Christina decided to drive back to the party. As she turned

onto Fay Avenue, she saw him running toward the car “drenched in blood [and] holding

his throat.” Two or three men dressed in dark clothing chased him and one was shooting

at him.2 Williams got into Christina‟s car and the men turned around. Christina saw the

gunman get into a white van, which sped off.

That same night, Jonea Garcia, who lived with her sisters, Defendant Garcia and

J.G., answered the door to find three men—Defendant Gutierrez, Alfredo Avila (Vago)

2 Investigators discovered a bloody knife and possible bullet strike marks a few houses from D.H.‟s house; however, no bullets were found.

5 and an unknown man—looking for Defendant Garcia. At trial, Jonea claimed that only

two men, not including Defendant Gutierrez, had come to the house. The men said they

would wait in the garage for Defendant Garcia to return. Jonea did not know whether the

men waited.

About 4:00 a.m., Riverside County Sheriff‟s deputies went to Defendant Garcia‟s

home and found several people, including J.G. and both defendants. During a search of

the residence, deputies discovered ammunition in the garage and a loaded revolver and

speed loader hidden in a couch cushion. The revolver previously had been reported

stolen.

Deputy Gabriel Dennington of the Riverside County Sheriff‟s Department also

found a cell phone and turned it on. The phone displayed a photograph of Defendant

Gutierrez and an Edgemont Locos gang member called “Listo” with their shirts off.

Defendant Gutierrez claimed the phone did not belong to him. Deputy Dennington used

the phone to dial Defendant Garcia‟s cell phone number. Her phone identified “Tokes”

as the incoming caller. It was later learned that Defendant Garcia had called Defendant

Gutierrez on the night of the shooting at 11:43 and 11:45 p.m., and at 1:49 the following

morning.

During her interview with Detective Lance Colmer of the Riverside County

Sheriff‟s Department, J.G. initially refused to identify anyone involved in the shooting.

She told Detective Colmer that she did not “trust cops.” She said, “„I‟m glad that fool got

blasted.‟” J.G. ultimately identified Avila as one of the assailants and stated repeatedly

and with certainty that Defendant Gutierrez was the shooter. She told the detective all

6 three men were from Edgemont, but she only knew Tokes. She had known Defendant

Gutierrez for four years and thought of him as a big brother. She claimed Williams was

holding a knife when he walked up to Avila and Defendant Gutierrez that night.

At trial, J.G. again identified Avila and Defendant Gutierrez as two of the

assailants, but claimed that Defendant Gutierrez was not the shooter and that she had

been unable to see what happened because she had not been wearing glasses or contacts.

J.G. admitted telling Detective Colmer she was wearing contacts that night but claimed at

trial that she had lied to the detective and had no idea why. She said it would not help to

look at the transcript, that she could not recall any of that year.

Detective Colmer opined that Edgemont Locos was a criminal street gang with 75

to 100 active gang members at the time of the shooting. Edgemont Locos was also

known as “Edgemont,” “EML,” and “Lokos,” and included gang subsets “Night Owls,”

“Cholilos,” and “Spantos.” Edgemont gang members commonly used these symbols in

graffiti, tattoos and on clothing. Edgemont‟s primary activities included graffiti,

narcotics sales, and violent felony assaults. Detective Colmer outlined several cases

involving crimes committed by the gang‟s members.

Detective Colmer opined that Defendant Gutierrez was a member of the Edgemont

Locos gang who went by the moniker “Tokes.” He based his opinion on a review of

police reports and field interview cards where the defendant wore gang clothing, admitted

being an Edgemont gang member, and was contacted on Edgemont gang territory in the

company of other active Edgemont gang members. Detective Colmer also relied on

7 testimony in the instant case that Defendant Gutierrez said “Edgemont” during the attack

and that Defendant Garcia had stated she was calling people from Edgemont.

Detective Colmer opined that Defendant Garcia was an associate of the Edgemont

Locos gang on the day of the shooting. An associate of a gang may be a girlfriend,

relative, or someone else who has repeated contact with members of a gang and assists

that gang in various ways, i.e., by providing meals, transportation, or a safe house, but

has not gone through the process of becoming a full-fledged gang member. Detective

Colmer believed Defendant Garcia was an Edgemont associate because she made

references to Edgemont and said she was calling her “homies” while arguing with people

at the party. The detective explained that people unaffiliated with a gang generally do not

invoke that gang‟s name in making threats, or call members of that gang to carry out such

threats. Moreover, one witness saw Defendant Gutierrez flee in Defendant Garcia‟s

white van; Defendant Gutierrez was arrested at Defendant Garcia‟s home; a gun

consistent with the crime weapon was discovered in Defendant Garcia‟s home; two

known Edgemont gang members had come to Defendant Garcia‟s home to see her after

the shooting; and there had been cell phone correspondence between Defendants Garcia

and Gutierrez just before and after the shooting. Finally, Defendant Garcia‟s telephone

contained contact information not only for Defendant Gutierrez (“Tokes”) and Avila

(“Vagos”) but for numerous other individuals known to be Edgemont gang members.

Detective Colmer opined the attack on Williams was committed at the direction of

and in association with the Edgemont Locos criminal street gang. The detective testified

that Avila was known to be a senior member of the Edgemont gang, and that the order to

8 Defendant Gutierrez to “Blast him,” indicates the crime was committed at the direction of

the Edgemont gang. Defendant Garcia‟s telephone call also indicated planning and

direction by causing Edgemont gang members to respond to the house in a violent

manner. Defendant Gutierrez acted in association with his gang not only by committing

the crime with at least one other Edgemont gang member and at the behest of Defendant

Garcia, an associate, but also by verbally announcing his association with Edgemont just

before shooting Williams. Detective Colmer added that the gang would also benefit by

providing “experience” for its members and by increasing its street reputation for

committing violent acts.

During a routine jail admission interview on March 29, 2009, a Riverside County

sheriff‟s classification deputy asked Defendant Gutierrez if he had any gang affiliation.

Defendant Gutierrez denied any gang affiliation but gave the impression he was

associated with the Edgemont Locos gang and that his nickname with the gang was

“Junior.”

Both defendants were charged with attempted, deliberate and premeditated murder

with a firearm use allegation, (Pen. Code,3 §§ 664, 187, subd. (a), and 12022.53, subds.

(d) and (e); count 1); assault with a firearm (§ 245, subd. (a)(2); count 2); assault with a

deadly weapon, a knife, (§ 245, subd. (a)(1); count 3); and actively participating in a

criminal street gang (§ 186.22, subd. (a); count 4). As to counts 1, 2 and 3, it was further

alleged as to Defendant Gutierrez that he personally inflicted great bodily injury

3 All further statutory references are to the Penal Code unless otherwise indicated.

9 (§ 12022.7, subd. (a)), and as to both defendants that the offenses were committed for the

benefit of, at the direction of, and in association with a criminal street gang (§ 186.22,

subd. (b)).

II. ADMISSION ANSWERS TO BOOKING QUESTIONS

Defendant Gutierrez contends the trial court violated his Fifth Amendment right

against self-incrimination by admitting statements he made about his association with the

Edgemont Locos while being processed for admission to jail.

A. Further Background Information

As part of the routine booking process, deputies assigned to the Riverside County

sheriff‟s classification department ask inmates about their gang affiliation for jail

classification, housing, and security purposes. During a booking interview, Correctional

Deputy Kristen Morris of the Riverside County Sheriff‟s Department asked Defendant

Gutierrez whether he was “gang-affiliated” and whether he “h[ung] out” with any gang

members. The questions were taken from a standardized form. Defendant Gutierrez

denied any gang affiliation but said he “h[ung] out” with members of the Edgemont

Locos gang and that his nickname with them is “Junior.”

Prior to trial, Defendant Gutierrez moved to exclude his booking statements to

Deputy Morris on the grounds such admission would violate his rights under Miranda v.

Arizona (1966) 384 U.S. 436 (Miranda). According to defense counsel, Deputy Morris

was aware that gang charges were pending against Defendant Gutierrez during the

interview and that she should have realized gang questions would elicit incriminating

responses. Observing that booking officers ask about gang status in every case regardless

10 of pending gang charges, the trial court ruled that the statements were admissible under

the routine booking question exception. However, regarding Defendant Gutierrez‟s

statements made during an unrelated 2008 drug arrest when he admitted he was an

Edgemont gang member, the trial court excluded them pursuant to Evidence Code section

352.

B. Legal Principles and Analysis

California and federal courts have long applied the booking question exception to

Miranda. (See, e.g., People v. Rucker (1980) 26 Cal.3d 368, 387, superseded by statute

as stated in People v. Gomez (2011) 192 Cal.App.4th 609, 630, fn. 11 (Gomez); Presley v.

City of Benbrook (5th Cir. 1993) 4 F.3d 405, 408, fn. 2; United States v. Booth (9th Cir.

1981) 669 F.2d 1231, 1238; United States ex rel. Hines v. LaVallee (2d Cir. 1975) 521

F.2d 1109, 1112-1113.) “The fact that the information gathered from routine booking

questions turns out to be incriminating does not, by itself, affect the applicability of the

exception. [Citations.] In United States ex rel. Hines v. LaVallee[, supra,] 521 F.2d

1109, for example, an assailant told his robbery and rape victim during the commission of

the crimes that he had been married 11 years and had two children. [Citation.] After the

defendant was arrested and before being Mirandized, he was asked „background data

(i.e., his name, address, age, marital status) . . . .‟ [Citation.] He told the officer that he

had been married for 11 years and had two children. [Citation.] Although the response

was incriminating, the Second Circuit held that it was admissible because it „constituted

merely basic identification required for booking purposes . . . .‟ [Citation.]” (Gomez,

supra, at pp. 629-630.)

11 “„“[R]ecognizing a „booking exception‟ to Miranda does not mean, of course, that

any question asked during the booking process falls within that exception. Without

obtaining a waiver of the suspect‟s Miranda rights, the police may not ask questions,

even during the booking, that are designed to elicit incriminatory admissions.”‟

[Citation.] The use of the phrase „designed to elicit incriminatory admissions,‟ instead of

the more objective „reasonably likely to elicit an incriminating response‟ language . . .

suggests that the intent of the interrogating officer is more important in evaluating the

applicability of the booking question exception than in establishing interrogation

generally.” (Gomez, supra, 192 Cal.App.4th at p. 629, fn. omitted.) Thus, “the booking

question issue requires careful scrutiny of the facts and circumstances in each case,”

because “[w]hether the administrative purpose is a mere guise or pretext for questions

actually designed to elicit incriminating responses is a close question.” (Id. at pp. 634,

635; U.S. v. Washington (9th Cir. 2006) 462 F.3d 1124, 1132-1133 [question eliciting the

defendant‟s gang moniker was a “routine booking question” despite the fact his moniker

ultimately provided a link in the evidentiary chain of evidence].)

In Gomez, the defendant was asked questions about his gang affiliation for jail

security purposes. (Gomez, supra, 192 Cal.App.4th at p. 632.) Finding such questions

within the Miranda exception, this court observed, “The classification of inmates by gang

affiliation for jail security purposes can be a legitimate administrative concern. . . . Thus,

there does appear to be a legitimate administrative purpose for the question.” (Gomez,

supra, at p. 634.) Similarly, in this case Defendant Gutierrez was asked legitimate

booking questions pursuant to a standard booking form, which allowed Deputy Morris,

12 who was uninvolved with the investigation of the crimes, to classify him by gang

affiliation. Defendant disagrees with this court‟s opinion in Gomez, asserting that “gang

affiliation questions inherently are designed to elicit incriminating information” because

of the “frequency of gang charges and enhancements, as well as the admissibility of gang

evidence generally . . . .” Thus, Defendant Gutierrez argues that such questioning

“should not be deemed to fall within the booking exception to Miranda.” We disagree.

To begin with, we decline Defendant Gutierrez‟s invitation to reverse our decision

in Gomez. More importantly, on the record before this court, we cannot say that the

gang-related questions asked are outside the booking question exception. The questions

appear to have been asked in a legitimate booking context, by a booking deputy who was

not involved with the arrest or investigation of the crimes, pursuant to a standard booking

form. Thus, the questions were asked for legitimate, noninvestigatory purposes related to

the administration of the jail and concerns for the security of the inmates and staff.

Significantly, there is no evidence Deputy Morris had any knowledge of the crimes for

which Defendant Gutierrez was arrested or was suspected of committing. The interview

took place on March 29, 2009, less than 48 hours after the commission of the crimes.

Although Defendant Gutierrez was ultimately charged on August 13, 2009, with certain

gang enhancements, our record does not indicate whether the arresting deputies indicated

it was a gang-related crime in any pre-booking report or, if they had, whether Deputy

13 Morris had seen such a report or talked to the deputies.4 Rather, the initial felony

complaint filed on April 2, 2009, does not charge Defendant Gutierrez with any gang

enhancements or gang-related crimes. Thus, there is a strong inference there was no

indication this was a gang-related crime in any prebooking report.

For the above reasons, we hold that the prosecution satisfied its burden of showing

by a preponderance of the evidence that the questions about Defendant Gutierrez‟s gang

affiliation were booking questions not designed to elicit an incriminating response. Thus,

his responses were admissible notwithstanding the absence of Miranda warnings.

III. FAILURE TO INSTRUCT ON THE TERM “IN ASSOCIATION

WITH ANY CRIMINAL STREET GANG”

The jury was instructed on the elements of the criminal street gang enhancement

pursuant to CALCRIM No. 1401 as follows: “To prove this allegation, the People must

prove that: [¶] 1. The defendant committed the crimes charged for the benefit of, at the

direction of or in association with a criminal street gang; [¶] AND [¶] 2. The

defendant intended to assist, further, or promote criminal conduct by the gang members.”

(Italics added.) Defendant Gutierrez faults the trial court for failing, sua sponte, to

provide the jury with a clarifying instruction on the meaning of the term “in association

4 We note that in his opening brief, Defendant Gutierrez claims that trial counsel “argued that the booking officer was aware of the gang allegation at the time [Defendant] Gutierrez was being booked so that his statement regarding gang affiliation was necessarily incriminating.” However, the record before this court lacks evidence to support such claim. Instead, the absence of gang-related allegations in the initial felony complaint filed less than four days after the interview suggests that the booking officer was not aware of gang allegations.

14 with a criminal street gang.” He claims that “[u]nder the holding of the California

Supreme Court in the case of People v. Albillar (2010) 51 Cal.4th 47, 60-62 [(Albillar)],

„in association with a criminal street gang‟ is a legal term with a specific definition that

needed to be provided to the jury.” In response, the People argue the pattern jury

instruction in CALCRIM No. 1401 sufficiently instructed the jury on the law and that no

further instruction was required absent a request.

“The trial court has a sua sponte duty to give correct instructions on the basic

principles of the law applicable to the case that are necessary to the jury‟s understanding

of the case. [Citation.] That duty requires the trial court to instruct on all the elements of

the charged offenses and enhancements. [Citation.]” (People v. Williams (2009) 170

Cal.App.4th 587, 638-639 [Fourth Dist., Div. Two].) When the terms are used as

commonly understood, the court has no obligation to define them absent a request for

amplification or explanation.

Citing Albillar, supra, 51 Cal.4th at pages 60 and 73, Defendant Gutierrez asserts

that the term “„in association with any criminal street gang‟ requires a showing that [he]

„relied on . . . common gang membership and the apparatus of the gang in committing‟

the charged crimes.” We disagree.

In Albillar, three fellow gang members were convicted, inter alia, of forcible rape

in concert and forcible sexual penetration in concert. In rejecting the defendants‟

contention that there was insufficient evidence to support the jury‟s implied finding that

the sexual offenses were committed in association with their gang, the Supreme Court

pointed out the gang expert‟s testimony regarding elements of gang membership and

15 reasons for gang members committing crimes. (Albillar, supra, 51 Cal.4th at pp. 60-61.)

Tying in the facts of the case with the expert‟s testimony, the court concluded,

“Defendants not only actively assisted each other in committing these crimes, but their

common gang membership ensured that they could rely on each other‟s cooperation in

committing these crimes and that they would benefit from committing them together.

They relied on the gang‟s internal code to ensure that none of them would cooperate with

the police, and on the gang‟s reputation to ensure that the victim did not contact the

police. We therefore find substantial evidence that defendants came together as gang

members to attack [the victim] and, thus, that they committed these crimes in association

with the gang. [Citations.]” (Id. at pp. 61-62.)

At this point in the opinion, the California Supreme Court cited, inter alia, People

v. Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 7 [Fourth Dist., Div. Two] (“the fact that

. . . the defendant had a fellow gang member in the stolen vehicle with him would support

a finding that he acted in association with the gang. [Citation.]”); People v. Morales

(2003) 112 Cal.App.4th 1176, 1179, 1198 [Fourth Dist., Div. Two] (“it is conceivable

that several gang members could commit a crime together, yet be on a frolic and detour

unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could

reasonably infer the requisite association from the very fact that defendant committed the

charged crimes in association with fellow gang members”); and People v. Martinez

(2008) 158 Cal.App.4th 1324, 1332 (“Defendant, [an admitted gang member], committed

the crimes with . . . another admitted member. . . . [The gang expert] testified this

evidence showed defendant committed the robbery in association with the gang. The

16 elements of the gang enhancement may be proven by expert testimony. [Citation.]”). As

the People aptly observe, the Albillar court did not provide a new definition for the

phrase “in association with any criminal street gang,” which must be used in future cases.

Rather, our state‟s highest court simply described how the evidence was sufficient in the

case before it to support the true findings on the elements of the criminal street gang

enhancement. Accordingly, Albillar did not create any duty on the trial courts to define,

sua sponte, this term for the jury. Here, absent defense counsel‟s request for further

instruction on the term “in association with a criminal street gang,” the trial court‟s

failure to define the term did not amount to instructional error.

IV. EVIDENCE TO SUPPORT GANG ENHANCEMENT

Defendant Gutierrez argues there was insufficient evidence the crime was

committed “for the benefit [of], at the direction of, or in association with” any criminal

street gang. We disagree.

“In considering a challenge to the sufficiency of the evidence to support an

enhancement, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in

support of the judgment the trier of fact could have reasonably deduced from the

evidence. [Citation.] If the circumstances reasonably justify the trier of fact‟s findings,

reversal of the judgment is not warranted simply because the circumstances might also

17 reasonably be reconciled with a contrary finding. [Citation.]” (Albillar, supra, 51

Cal.4th at pp. 59-60.)

A gang enhancement applies when the defendant committed the underlying felony

(1) “for the benefit of, at the direction of, or in association with any criminal street gang,”

and (2) “with the specific intent to promote, further, or assist in any criminal conduct by

gang members . . . .” (§ 186.22, subd. (b)(1).)

Here, the evidence supports the conclusion that Defendant Gutierrez committed

the offenses for the benefit of, at the direction of, or in association with the Edgemont

Locos criminal street gang.5 To begin with, Defendant Garcia called her “homies” after

she believed that she had been disrespected. She announced that she had friends from

Edgemont and was going to have them come over and “hit up the house.” Witnesses

heard Defendant Garcia yelling, “Bring a strap [or] bring guns,” and “Come over [and]

. . . [s]hoot everybody up.” This call indicates planning and direction, supporting the

conclusion that the attack on Williams was at the direction of the Edgemont Locos gang.

In response, three gang members, including Defendant Gutierrez and Avila, showed up

armed and dressed as if they were on a gang mission. Avila stabbed Williams and then

ordered Defendant Gutierrez to shoot Williams. J.G. confirmed that all three men were

from Edgemont. Both defendants specifically referenced Edgemont during the incident.

Defendant Garcia referred to the gang when she threatened Jonathan and called

Defendant Gutierrez to respond to Jonathan disrespecting her, and Defendant Gutierrez

5 We analyze this same issue as to Defendant Garcia later in this opinion.

18 announced “Edgemont” just before shooting Williams. Clearly, Defendant Gutierrez

acted in association with Edgemont gang members during the attack.

Finally, the attack benefitted the Edgemont Locos gang by providing “experience”

for its members and by increasing the gang‟s street reputation for committing violent

acts. Again, the gang members announced “Edgemont” before the attack. Such

announcement supports a finding that the attack was committed to benefit the gang.

V. EVIDENCE OF GANG OFFENSE

Defendant Gutierrez challenges the evidence supporting his conviction for actively

participating in a criminal street gang. (§ 186.22, subd. (a).) Section 186.22, subdivision

(a), has three elements: (1) “Active participation in a criminal street gang, in the sense of

participation that is more than nominal or passive”; (2) “„knowledge that [the gang‟s]

members engage in or have engaged in a pattern of criminal gang activity‟”; and

(3) “„“willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct

by members of that gang.” [Citation.]‟ [Citation.]” (People v. Lamas (2007) 42 Cal.4th

516, 523.) Defendant Gutierrez argues the evidence was insufficient to show that he had

actual knowledge the Edgemont Locos gang engaged in a pattern of criminal gang

activity. We disagree.

According to the record before this court, Defendant Gutierrez previously told

police that he was a member of the Edgemont gang. On one occasion, he was arrested

with three Edgemont gang members while on Edgemont gang “turf” and while wearing

gang clothing. The People argue that Defendant Gutierrez‟s previous admission of being

an Edgemont gang member, wearing gang clothing, and being arrested with other

19 members, “supports a reasonable inference he was fully aware of the gang‟s criminal

acts, including the predicate offenses described by the gang expert.” Moreover, his attack

on Williams further establishes knowledge. One of Edgemont gang‟s primary activities

is violent felony assaults. That is what happened in this case. Defendant Gutierrez

arrived at the scene armed with a gun, with two other Edgemont gang members, one of

whom possessed a knife. Thus, prior to his arrival, he had already committed the crime

of carrying a loaded firearm. (§ 186.22, subd. (e)(33).)

Given the above, the evidence is sufficient to support the knowledge element of

the substantive gang offense. Likewise, there is sufficient evidence to support the

knowledge element as to Defendant Garcia. Upon feeling “disrespected,” she

immediately called her “homies” and requested that they “shoot up the place.”

VI. GANG EXPERT‟S TESTIMONY

Both defendants challenge the admission of certain portions of Detective Colmer‟s

gang expert opinion testimony. Defendant Gutierrez argues that the expert‟s opinions

“regarding [his] conduct being for the benefit of and in association with the gang were

inappropriate and usurped the essential fact-finding role of the jury.” Likewise,

Defendant Gutierrez criticizes Detective Colmer‟s opinion regarding the “at the direction

of” and “to promote a criminal street gang” prongs. Defendant Garcia faults the trial

court for allowing Detective Colmer to opine that she was guilty of attempted murder and

assault in violation of her Fifth, Sixth and Fourteenth Amendment rights.

20 A. Further Background Information

Prior to trial, counsel for Defendant Gutierrez moved to prohibit certain expert

opinion testimony regarding gangs. Specifically, counsel objected to any opinion

testimony regarding whether Defendant Gutierrez was an “„active participant‟” of a gang

in March 2009, and whether he committed any of the offenses for the benefit of the gang.

Counsel argued that a gang expert is not qualified to testify as to whether a defendant‟s

conduct was accompanied by a particular intent, including gang motivation. A hearing

was held on the defense motion, and after hearing the arguments of counsel, the trial

court ruled that the gang expert‟s opinion testimony was admissible.

To be admissible, expert opinion testimony must be “[r]elated to a subject that is

sufficiently beyond common experience that the opinion . . . would assist the trier of

fact . . . .” (Evid. Code, § 801, subd. (a).) “The jury need not be wholly ignorant of the

subject matter of the opinion in order to justify its admission; . . . even if the jury has

some knowledge of the matter, expert opinion may be admitted whenever it would

„assist‟ the jury.” (People v. McDonald (1984) 37 Cal.3d 351, 367, overruled on other

grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914 (Mendoza).)

“Testimony in the form of an opinion that is otherwise admissible is not

objectionable because it embraces the ultimate issue to be decided by the trier of fact.”

(Evid. Code, § 805.) The admissibility of expert opinion testimony that embraces the

ultimate issue “„“depends on the nature of the issue and the circumstances of the case,

there being a large element of judicial discretion involved. . . .”‟” (People v. Killebrew

21 (2002) 103 Cal.App.4th 644, 652), disapproved on another point in People v. Vang

(2011) 52 Cal.4th 1038, 1047, fn. 3 (Vang).) It is well settled that in cases where gang

offenses and enhancements are alleged, expert testimony regarding the culture, habits,

and psychology of gangs is generally permissible because these subjects are

“„“sufficiently beyond common experience that the opinion of an expert would assist the

trier of fact. [Citations.]” [Citation.]‟ [Citation.]” (Killebrew, supra, at p. 656; see also

People v. Gardeley (1996) 14 Cal.4th 605, 617.) For example, an expert may properly

testify concerning “the size, composition or existence of a gang [citations], gang turf or

territory [citations], an individual defendant‟s membership in, or association with, a gang

[citations], the primary activities of a specific gang [citations], motivation for a particular

crime, generally retaliation or intimidation [citations], whether and how a crime was

committed to benefit or promote a gang [citations], rivalries between gangs [citation],

gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire

[citations].” (Killebrew, supra, at p. 657, fns. omitted.) “A trial court‟s determination as

to whether an expert should be allowed to opine about a particular subject is reviewed on

appeal for abuse of discretion. [Citations.]” (People v. Sandoval (2008) 164 Cal.App.4th

994, 1001.)

Here, the People posed hypothetical questions to Detective Colmer. Given the

hypothetical scenario, the detective opined that the shooter committed his offense in

association with, at the direction of, and possibly for the benefit of his gang. Defendant

Gutierrez argues the detective‟s earlier testimony about the importance of respect within

the gang culture was sufficient for the jury to conclude that the crimes were committed

22 for the benefit of the Edgemont Locos gang. The People respond that the earlier

testimony did not prohibit further testimony on how the commission of crimes benefits

the gang by promoting respect. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-

1513 [expert may properly testify about whether and how a crime was committed to

benefit or promote a gang]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384) [“it is

difficult to imagine a clearer need for expert explication than that presented by a

subculture in which this type of mindless retaliation promotes „respect‟”].) Likewise, the

People argue that Detective Colmer‟s opinion that the shooting was committed in

association with a criminal street gang was necessary, because “without this testimony it

is not apparent that association could be based on more than „two guys from the same

gang commit[ting] a crime together,‟” and his opinion that the crimes were committed at

the direction of the Edgemont Locos gang was necessary because such conclusion was

“not readily apparent without expert testimony regarding the difference between a senior

gang member and a subordinate one.” We agree with the People.

Regarding Defendant Garcia‟s challenges, Detective Colmer‟s opinion that she

was an active associate of the Edgemont Locos on the day of the charged crimes was

based on her conduct before, during, and after the charged crimes, along with the fact that

her cell phone contacts included several Edgemont gang members. The detective relied

on the hypothetical scenario in opining that the crimes were committed at the direction of

a criminal street gang. Contrary to Defendant Garcia‟s claim, the detective never

commented on her intent or guilt. Rather, as the People assert, he “properly stated the

23 factors on which he relied in forming his opinions, which included evidence adduced at

trial concerning [Defendant] Garcia‟s role in those offenses.”

“[N]o statute prohibits an expert from expressing an opinion regarding whether a

crime was gang related. Indeed, it is settled that an expert may express such an opinion.

To the extent the expert may not express an opinion regarding the actual defendants, that

is because the jury can determine what the defendants did as well as an expert, not

because of a prohibition against the expert opining on the entire subject. Using

hypothetical questions is just as appropriate on this point as on other matters about which

an expert may testify.” (Vang, supra, 52 Cal.4th at p. 1052.) Moreover, at least one

court has found the admission of an expert witness‟s opinion that the crimes of the

particular defendants in question were committed for the benefit of the respective

defendants‟ gangs, without the use of a hypothetical, was within the trial court‟s

discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 507, 509, cited with approval

in People v. Prince (2007) 40 Cal.4th 1179, 1227.) Likewise, the court in Vang, albeit in

dicta, expressed support for that holding: “It appears that in some circumstances, expert

testimony regarding the specific defendants might be proper. [Citations.]” (Vang, supra,

52 Cal.4th at p. 1048, fn. 4.)

Nonetheless, assuming error, we conclude on this record that it is not reasonably

probable an outcome more favorable to either defendant would have resulted in the

absence of Detective Colmer‟s testimony. (People v. Clark (2011) 52 Cal.4th 856, 940-

941 [error in admission of prosecution‟s expert witness testimony subject to Watson

standard of harmless error]; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury was

24 admonished regarding the use of the expert opinion testimony and that it was up to them

to establish if the opinion was accurate or true. (CALCRIM No. 332.) Even without the

expert testimony, the words and actions of both defendants, along with their friends,

constituted overwhelming evidence of the crimes they were convicted of having

committed.

VII. PROSECUTORIAL MISCONDUCT

Both defendants contend the prosecutor committed misconduct by failing to

instruct Deputy Joshua Rhodes not to disclose that the search of Defendant Garcia‟s

apartment was a “probation search.” Defendant Gutierrez also claims misconduct based

on the prosecutor‟s failure to instruct the gang expert not to mention Defendant

Gutierrez‟s prior criminal conduct.

Prior to trial, defense counsel moved to exclude evidence that the search of

Defendant Garcia‟s residence was a Fourth Amendment waiver search. The trial court

granted the motion and told the prosecutor, “Make sure your officer knows” that he

should simply testify to a search without providing the reason for the search. On direct,

Deputy Rhodes testified that he assisted in the investigation of the instant offenses on

March 27, 2009. The prosecutor asked, “And what were you specifically tasked with

assisting?” The deputy replied, “We were—or they were doing a probation search at a

residence, and I was assigned to assist.” Defendant Garcia‟s counsel requested a sidebar

conference. After counsel reminded the court of the in limine order excluding any

reference to the search of Defendant Garcia‟s house as being a probation search, the

25 prosecutor accepted blame for Deputy Rhodes‟s reference: “It‟s my fault completely,

your Honor. . . . I advised Deputy Moreno and Deputy Colmer, and I completely forgot

to advise Deputy Rhodes. It‟s no one‟s fault but my own. That‟s all I can say is mea

culpa. I‟m sorry, it was a lapse of memory.” The parties considered their options of

correcting the situation and concluded that striking the deputy‟s entire testimony and

starting over was the best option. When the jurors returned to the courtroom, the court

instructed: “[W]e‟re going to strike this deputy‟s testimony, and you are to forget it. I

know that sounds hard. How do you unring the bell? But you‟re going to do it because

you‟re going to follow my orders. Forget everything he said, and we‟re gonna start

fresh.”

In a separate pretrial motion, Defendant Gutierrez moved for “an order barring the

admissibility of any prior bad acts evidence and that no reference be made to any alleged

criminal conduct including prior convictions or arrests . . . .” Denying the motion, the

trial court noted its ruling that Defendant Gutierrez could be impeached with a prior drug

conviction should he testify.

On direct examination, the prosecutor asked Detective Colmer for the basis of his

expert opinion that Defendant Gutierrez is a gang member. The detective listed several

factors, including his “review of police reports, where [Defendant Gutierrez has]

committed crimes with other members of Edgemont Locos . . . .” After the next

unrelated question, defense counsel requested a sidebar wherein she stated: “We had a

discussion with respect to [Defendant] Gutierrez‟s past criminal history and whether or

not those—either arrests or convictions could come in. And I believe the Court‟s ruling 26 was that those would come in for impeachment purposes only if [Defendant] Gutierrez

testified. [¶] But the witness just testified that [Defendant] Gutierrez has been arrested

previously for committing crimes with other Edgemont Locos members. I would argue

that the similarity with language, that . . . violates that 402 hearing. . . .”[RT 512} In

response, the prosecutor argued there had been no mention of any prior conviction,

merely Defendant Gutierrez‟s “FI cards where he was arrested with another Edgemont

gang member. That‟s all that was said.” Defense counsel argued that the “existence of

FI cards does not necessarily indicate that he was arrested,” only that he “had contact

with law enforcement and he was with other people.” The prosecutor repeated the fact

that he did not talk about Defendant Gutierrez‟s conviction, only his arrests with other

Edgemont gang members.

The trial court overruled defense counsel‟s objection, stating, “It‟s permissible for

an expert, and an arrest doesn‟t necessarily mean a conviction.”

“„The applicable federal and state standards regarding prosecutorial misconduct

are well established. “„A prosecutor‟s . . . intemperate behavior violates the federal

Constitution when it comprises a pattern of conduct “so egregious that it infects the trial

with such unfairness as to make the conviction a denial of due process.”‟” [Citations.]

Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is

prosecutorial misconduct under state law only if it involves “„“the use of deceptive or

reprehensible methods to attempt to persuade either the court or the jury.”‟” [Citation.]‟

[Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 960.)

27 “It is, of course, misconduct for a prosecutor to „intentionally elicit inadmissible

testimony.‟ [Citations.]” (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on other

grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Defendants rely on the

principle that a prosecutor has a duty to guard against statements by his own witnesses

containing inadmissible evidence. (See, e.g., People v. Warren (1988) 45 Cal.3d 471,

481-482.) This is, of course, a corollary of the principle that it is misconduct for a

prosecutor to intentionally elicit inadmissible testimony. (People v. Bonin, supra, at p.

689.)

Here, the prosecutor did not intentionally elicit any inadmissible testimony about

Defendant Garcia being subject to a probation search or Defendant Gutierrez‟s prior

convictions. Regarding Deputy Rhodes‟s testimony, we conclude the prosecutor‟s

forgetfulness in admonishing the deputy not to refer to a probation search does not

amount to prosecutorial misconduct. As the People point out, in addition to being

inadvertent, there was no purposeful attempt by the prosecutor to elicit the inadmissible

evidence. The record is void of any evidence from which to infer this prosecutor acted

from improper motives. Even defense counsel believed there was no intentional

misconduct, observing that “[i]n every aspect of this case, [the prosecutor‟s] been

upstanding. I don‟t think it was done intentionally.” Similarly, we see nothing in the

record from which to infer this prosecutor acted from such improper motives. To rule

otherwise, without more evidence of intent on the part of the prosecution, would put

prosecutors at risk of charges of prosecutorial misconduct any time a court sustains an

28 evidentiary objection by defense counsel, coupled with or without admonishing the jury

or further affirmative action.

Likewise, there was no prosecutorial misconduct involved in the gang expert‟s

reference to Defendant Gutierrez having committed crimes with other members of

Edgemont Locos. Detective Colmer‟s testimony did not violate the trial court‟s early

ruling involving Defendant Gutierrez‟s prior convictions. As the trial court observed in

overruling defense counsel‟s objection, “an arrest doesn‟t necessarily mean a conviction.”

VIII. CALCRIM NO. 372 FLIGHT INSTRUCTION

Defendant Gutierrez contends that because CALCRIM No. 372, as “given in the

present case permitted the jury to draw irrational inferences of guilt, its use undermined

the reasonable doubt requirement and denied [him] his rights to a fair trial and due

process of law.”

A. Additional Background Information

The trial court instructed Defendant Gutierrez‟s jury with CALCRIM No. 372, as

follows: “If the defendant fled immediately after the crime was committed, that conduct

may show that the defendant was aware of his or her guilt. If you conclude that the

defendant fled, it is up to you to decide the meaning and importance of that conduct.

However, evidence that the defendant fled cannot prove guilt by itself.”6 Defendant

Gutierrez did not object to that instruction.

6 Defendant Garcia‟s jury did not receive a flight instruction.

29 B. Legal Principles and Analysis

The People contend Defendant Gutierrez has forfeited his challenge to the flight

instruction because he did not make a timely and specific objection in the trial court.

(People v. Bolin (1998) 18 Cal.4th 297, 326.) The People have nonetheless addressed the

merits of the challenge, and to forestall any claim of ineffective assistance of counsel, we

will also address the merits. (See People v. Scaffidi (1992) 11 Cal.App.4th 145, 151

[Fourth Dist., Div. Two].)

“On review, we examine the jury instructions as a whole, in light of the trial

record, to determine whether it is reasonably likely the jury understood the challenged

instruction in a way that undermined the presumption of innocence or tended to relieve

the prosecution of the burden to prove defendant‟s guilt beyond a reasonable doubt.

[Citation.]” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)

The giving of a flight instruction in an appropriate case is statutorily required: “In

any criminal trial or proceeding where evidence of flight of a defendant is relied upon as

tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The

flight of a person immediately after the commission of a crime, or after he is accused of a

crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact

which, if proved, the jury may consider in deciding his guilt or innocence. The weight to

which such circumstance is entitled is a matter for the jury to determine. [¶] No further

instruction on the subject of flight need be given.” (§ 1127c.)

30 In People v. Paysinger, supra, 174 Cal.App.4th at pp. 30-32, the court held that

the language of CALCRIM No. 372 complies with that statutory mandate and rejected

the defendant‟s argument that the instruction deprived the defendant of the presumption

of innocence and the requirement of proof beyond a reasonable doubt. Similarly, the

court in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159 (Hernandez

Rios), rejected a due process challenge to CALCRIM No. 372 identical to Defendant

Gutierrez‟s challenge.7 Although Defendant Gutierrez contends Hernandez Rios was

wrongly decided, we find his argument unpersuasive. Our Supreme Court repeatedly

rejected challenges to a substantially similar version of the flight instruction in CALJIC

No. 2.52. (See, e.g., People v. Lynch (2010) 50 Cal.4th 693, 761, overruled on another

7 “Arguing that the „culprit‟ in CALCRIM No. 372 is the word „aware,‟ Rios contrasts CALCRIM No. 372 (which uses that word) with CALJIC No. 2.52 (which does not) and claims that the latter instruction „left open the question whether the defendant was guilty by instructing that the defendant‟s flight could be considered as evidence of guilt‟ but „not as evidence of his awareness of his guilt.‟ . . . [¶] On whether a flight instruction permitting a jury to infer „awareness of guilt‟ is constitutional, the California Supreme Court‟s rejection of an analogous challenge to CALJIC No. 2.52 is instructive. . . . Noting that a permissive inference violates due process „only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury,‟ Mendoza held that permitting „a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt’ is not violative of due process. [Citation.]” (Hernandez Rios, supra, 151 Cal.App.4th at p. 1158.) Mendoza also rejected the defendant‟s assertion that CALJIC No. 2.52 unconstitutionally lessened the prosecution‟s burden of proof, citing Francis v. Franklin (1985) 471 U.S. 307, 314. (Mendoza, supra, 23 Cal.4th at p. 181.) In Franklin, the United States Supreme Court noted that an instruction that creates a mandatory presumption, which “instructs the jury that it must infer the presumed fact if the State proves certain predicate facts,” relieves the State of its burden of proof, while a permissive inference, which “suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion,” does not. (Franklin, supra, at p. 314, fn. omitted.)

31 ground by People v. McKinnon (2011) 52 Cal.4th 610, 636-643; People v. Brady (2010)

50 Cal.4th 547, 567 and cases collected; People v. Kelly (2007) 42 Cal.4th 763, 792

[finding that the flight instruction did not impermissibly dilute the requirement of proof

beyond a reasonable doubt].) We agree with the reasoning and conclusion of those courts

and hold that CALCRIM No. 372 is constitutionally valid. Clearly, the instruction

creates a permissible inference, rather than a mandatory presumption, and thus does not

impermissibly shift the burden of proof. Moreover, like CALJIC No. 2.52, CALCRIM

No. 372 “„adequately conveyed the concept that if flight was found, the jury was

permitted to consider alternative explanations for that flight other than defendant‟s

consciousness of guilt.‟ [Citation.] . . . [A] flight instruction does not create an

unconstitutional permissive inference or lessen the prosecutor’s burden of proof . . . .

[Citations.]” (People v. Avila (2009) 46 Cal.4th 680, 710, italics added.)

IX. DEFENDANT GUTIERREZ‟S POSTTRIAL MARSDEN MOTION

Defendant Gutierrez contends the trial court abused its discretion in denying his

posttrial Marsden motion and thereby denied him his constitutional right to counsel.

Following the jury‟s verdict, Defendant Gutierrez moved to substitute his

appointed counsel on the grounds she had failed to present relevant evidence, namely,

that he had a tattoo removed, that J.G. (the only person who identified him at trial) could

not have seen him given her eyesight and the lighting, and that phone records showed that

he did not answer Defendant Garcia‟s telephone call after the shooting. At the Marsden

hearing, Defendant Gutierrez stated that he wanted new counsel to file a motion for

32 retrial based on ineffective assistance of counsel for not introducing the above-mentioned

evidence.

In response, defense counsel informed the court that the case was assigned to her

in late December 2010, with trial set for early January 2011. Defendant Gutierrez had

been proceeding in propria persona for about six to nine months. Defense counsel

reviewed the file to determine what was missing and contacted prior counsel and the

investigator appointed to assist Defendant Gutierrez. She then spoke with Defendant

Gutierrez about “what the best possible theories were.” Defense counsel noted that she

prepared the case based on her knowledge and experience, including nine and a half years

of practicing law. Regarding Defendant Gutierrez‟s concerns, defense counsel opined

that “he had a difference of opinion with respect to which theory would be the best theory

to proceed, which would be misidentification or the fact that he wasn‟t there.” She

explained that Defendant Gutierrez “had the right to testify and chose not to, which

meant that certain information couldn‟t come in.” Regarding the tattoo, defense counsel

explained that the medical records failed to indicate what type of tattoo was removed.

The trial court inquired about the tattoo, and Defendant Gutierrez replied that he

was in the process in 2009 of getting the letters “IE” removed. Regarding the cell phone

records, he explained “I never answered the phone call. . . . [T]he D.A. was stating that

[Defendant Garcia] called Toker Tokes to come shoot this guy up, but yet they called my

phone after the crime was committed and I never answered the phone call. So how could

I have spoke to her and been at that crime when she spoke to me after the crime was

committed.”

33 The trial court asked defense counsel how this evidence factored into her thinking.

She replied that she considered whether the jury would believe the removal of the tattoo

showed that Defendant Gutierrez was trying to separate himself from the gang lifestyle.

However, because the medical records did not indicate the type of tattoo being removed,

and there was other criminal information that the defense had already “402‟d out,” she

did not think it was the best possible argument. The trial court noted that Defendant

Gutierrez was in juvenile hall at the time the removal process was started. He was

supposed to go six times for removal but went only twice. Regarding the phone records,

counsel explained that while one phone from Defendant Garcia was not answered, the

other ones were, and thus she “chose not to go further with that issue.”

At the conclusion of the Marsden hearing, the trial court found the tattoo removal

worked against Defendant Gutierrez because he only went to two out of six removal

treatments and the tattoo remained. Regarding J.G.‟s vision, the court (albeit

erroneously) recalled there was more than one person who saw Defendant Gutierrez.

And the matter of phone records was merely a peripheral matter. The court denied the

Marsden motion, concluding that defense counsel had sound reasons for dismissing the

proffered evidence.

“„Once a defendant is afforded an opportunity to state his or her reasons for

seeking to discharge an appointed attorney, the decision whether or not to grant a motion

for substitution of counsel lies within the discretion of the trial judge. The court does not

abuse its discretion in denying a Marsden motion “„unless the defendant has shown that a

34 failure to replace counsel would substantially impair the defendant‟s right to assistance of

counsel.‟” [Citations.] Substantial impairment of the right to counsel can occur when the

appointed counsel is providing inadequate representation or when “the defendant and the

attorney have become embroiled in such an irreconcilable conflict that ineffective

representation is likely to result [citation].” [Citations.]‟ [Citation.]” (People v. Myles

(2012) 53 Cal.4th 1181, 1207.)

Contrary to Defendant Gutierrez‟s claim, none of his various complaints

concerning counsel suggests an irreconcilable conflict between them. His main grievance

was that defense counsel failed to follow up on the evidence which he deemed important,

namely, the tattoo removal, J.G.‟s poor eyesight, and the cell phone record. However,

“„[t]actical disagreements between the defendant and his attorney do not by themselves

constitute an “irreconcilable conflict.”‟” (People v. Roldan (2005) 35 Cal.4th 646, 682,

overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.

22.) As the trial court observed, the evidence that Defendant Gutierrez went to only two

of the six tattoo removal treatments was at best problematic. His cell phone record was

also problematic, given the evidence that only one of the calls from Defendant Garcia to

Defendant Gutierrez was not answered. Regarding J.G.‟s vision, defense counsel elicited

her testimony that she had poor eyesight and was not wearing glasses or contacts on the

night of the shooting. However, her trial testimony conflicted with her earlier statements

to the deputies that she was wearing her contacts on the night of the shooting. Moreover,

numerous witnesses heard Defendant Garcia asking “Tokes” to come over and “take care

of” Jonathan or “hit up the house.” Thus, the jury was presented with evidence of J.G.‟s

35 poor vision, along with circumstantial evidence placing Defendant Gutierrez at the crime

scene. As such, Defendant Gutierrez fails to show that the trial court‟s denial of his

Marsden motion impaired his right to effective assistance of counsel. (People v. Hart

(1999) 20 Cal.4th 546, 603.)

X. WAS THE JURY PRESENTED WITH A LEGALLY

INCORRECT THEORY OF CONVICTION

Relying on People v. Guiton (1993) 4 Cal.4th 1116, Defendant Garcia contends

her convictions on counts 1 (attempted murder) and 3 (assault with a deadly weapon or

by means of force likely to produce great bodily injury) must be reversed, because the

prosecutor presented the case to the jury on a “legally incorrect theory” by misstating the

law governing criminal liability for assault with a deadly weapon or by force likely to

cause great bodily injury during closing arguments.

In closing, the prosecutor discussed Defendant Garcia‟s aider and abettor liability

by providing an example: “[Defendant Garcia] intends for [Defendant] Gutierrez to

commit a crime, for example, we‟ll say an assault. She knows that he‟s going to do it.

She told him to. He does it. And before or during him doing it, she encourages him, for

example, tells him to. I mean, verbal encouragement is encouragement. [¶] And what

you have with aiding and ability is liability, responsibility. It puts you on the hook, for

lack of a better term. That‟s what‟s created when you aid and abet. The scope of liability

extends beyond the actual crime intended. You‟re liable for what you encouraged.

36 You‟re also liable for any other crime that is a natural and probable consequence of the

crime that you encouraged.”

In response, defense counsel argued: “Now, to have a natural and probable

consequence theory, you have to have a target offense. That target offense is what she

intended to have [Defendant] Gutierrez commit, and that it was a natural and probable

consequence of that target offense that led to the attempt murder of Mr. Williams. And in

your paperwork that you receive, your instructions, you will learn that the target offense

that the District Attorney has alleged is that [Defendant] Garcia intended for there to be

an assault with a deadly weapon or by force likely to commit great bodily injury. [¶] So

for you to find [Defendant] Garcia guilty, you have to decide that what she did is she

intended to have Jonathan . . . either murdered or she intended to have him assaulted with

great bodily injury, either through the use of a weapon or any means necessary or

available to commit great bodily injury upon his body. [¶] And again, you don‟t have

that either. . . . [¶] . . . [¶] . . . [E]ven if it were there, then they would need to prove to

you that it‟s a natural and probable consequence, to reach the next level of attempt

murder. And how do they do that? By trying to make this look like a gang case. [¶]

Because you know gangsters, when you call gangsters, sometimes assault with deadly

weapons turn[s] into murders.”

In rebuttal, the prosecutor elaborated on Defendant‟s Garcia‟s liability:

“So what it comes down to in this case is the analysis that I started with in my

initial closing argument. It‟s a question of liability. Every single witness agrees

[Defendant Garcia] got on that phone and she made a phone call because she was angry.

37 She lost her temper. She knew who she was calling. She knew his personality. She

knew his associations, his affiliations, and she called him. Of all 84 contacts, she picked

Tokes.

“She told him to come over to the house and to do some form of violence. I‟m not

trying to tell you that she said shoot the house up. We don‟t know exactly what she said.

It‟s a party. Things can be chaotic. Details can be lost. But she asked for some form of

violence.

“At an absolute minimum, bare minimum, I think we can all agree, she wanted

someone to come and scare the bejesus out of Jonathan . . . right? Even if she didn‟t want

him touched, which I argue to you she did, at a minimum, she wanted him scared to

death.

“What do you call it when a gangster comes over and scares someone to death?

It‟s an assault. It‟s like a swing and a miss. Remember when we talked about an assault.

One way is to swing a baseball bat and try to scare someone. If they come up and they

start punking him, you know, twitching, flinching, making him think he‟s going to get

punched, think he‟s going to get beat severely, that‟s an assault. And that‟s the bare

minimum of what she was saying. It was probably much more.

“[DEFENSE COUNSEL]: Misstates the law, your Honor. Objection.

“THE COURT: Overruled.

“[THE PROSECUTOR]: It‟s because that is the law. You‟ve got the instructions.

“If you do something that makes someone think they‟re going to get hit, you know

they think they‟re going to get hit, you intend to scare them and you could hit them, that‟s

38 an assault. It‟s in the law, it‟s right there. That‟s the bare minimum of what she wanted

to do.

“So she‟s liable. She‟s aiding and abetting an assault. That‟s step one.

“The question before you then becomes—

“[DEFENSE COUNSEL]: Your Honor, I‟m going to object. It‟s a misstatement

of the law. It‟s not an assault. It‟s assault with a deadly weapon.

“[THE PROSECUTOR]: No, It‟s not assault with a deadly weapon. It‟s assault

likely to inflict great bodily injury, something that‟s more than mild or moderate.

Skinny, little, 16-year-old kid getting jumped by gangsters, that‟s going to inflict great

bodily injury that‟s more than mild or moderate. And that‟s—you can‟t make the law up.

I mean, it‟s written down.”

The prosecutor then argued the attempted murder was the natural and probable

consequence of the assault which Defendant Garcia specifically intended to aid and abet.

The jury was instructed with CALCRIM Nos. 400, 401, 403, and 875.

The parties disagree on whether this is simply a situation where the prosecutor

alone introduced an improper legal theory, or whether the trial court “presented the

state‟s case to the jury on an erroneous legal theory or theories.” (People v. Morales

(2001) 25 Cal.4th 34, 43.) “When a prosecutor relies on alternate theories, some of

which are legally correct and others which are legally incorrect, and the reviewing court

cannot determine from the record on which theory the ensuing general verdict of guilt

39 rested, the conviction cannot stand. [Citations.]” (People v. Mendez (2010) 188

Cal.App.4th 47, 59; see also People v. Guiton, supra, 4 Cal.4th at p. 1122.) However,

Guiton error does not occur when a prosecutor‟s misstatement of law “merely amount[s]

to prosecutorial misconduct [citation] during argument, rather than trial and resolution of

the case on an improper legal basis.” (People v. Morales, supra, at p. 43.) We conclude

that the People have correctly identified the issue as one of prosecutorial misstatement of

the law.

While it does appear that the prosecutor proceeded on a legally incorrect theory by

intimating to the jury that an intent to frighten Jonathan provided a sufficient basis for a

finding of aiding and abetting guilty as to Defendant Garcia, the prosecutor ultimately

clarified that Defendant Garcia aided and abetted an assault likely to inflict great bodily

injury when she intended to have a “[s]kinny, little, 16-year-old kid get[] jumped by

gangsters . . . .” Furthermore, despite the trial court‟s rulings and comments during

closing argument, Defendant Garcia acknowledges the “written instructions provided to

the jury on assault with a deadly weapon or by means of force likely to produce great

bodily injury were legally correct.” The jury was also instructed with CALCRIM No.

200, which provided, “If you believe that the attorney‟s comments on the law conflict

with my instructions, you must follow my instructions.” These instructions did not

permit a conviction solely on evidence of simple assault, but required the jury find that

Defendant Garcia encouraged Defendant Gutierrez to commit an act that by its nature

would directly and probably result in the application of force likely to produce great

bodily injury.

40 Assuming the prosecutor‟s misstatement rises to the level of misconduct, we

conclude that the misconduct did not prejudice Defendant Garcia. As the People aptly

point out, at least one witness heard Defendant Garcia follow up her threats of gang

violence by requesting Defendant Gutierrez to bring friends and guns and shoot up the

house. This evidence clearly supports a finding that Defendant Garcia intended to have

Defendant Gutierrez and his fellow gang members commit a violent act, not a mere

“punking” of Jonathan.

For the above reasons, we reject Defendant Garcia‟s claim.

XI. CUMULATIVE ERROR DOCTRINE

Both defendants argue that, even assuming the above-asserted errors are

considered harmless in isolation, their cumulative impact renders them prejudicial. We

have rejected these claims of error. Even assuming error, and viewing the errors as a

whole, we conclude that any errors do not warrant reversal of the judgment. (People v.

Stitely (2005) 35 Cal.4th 514, 560.)

XII. DISMISSAL OF GANG CHARGE AND ENHANCEMENTS

Defendant Garcia‟s jury found her guilty as charged in all four counts and found

the principal armed and gang allegations to be true. She moved for a new trial, arguing in

part that the evidence was insufficient to support her conviction of actively participating

in a criminal street gang (§ 186.22, subd. (a); count 4) and that the offenses (counts 1-3,

inclusive) were committed for the benefit of, at the direction of and in association with a

criminal street gang (§ 186.22, subd. (b)). The trial court agreed, finding that Defendant

Garcia did not fit the definition of section 186.22, subdivision (a), and that the court

41 should have previously granted Defendant Garcia‟s section 1118.1 motion. Count 4 was

dismissed. As to the gang enhancements, the trial court found that Defendant Garcia was

not in association with a criminal street gang, but that she was in association with “a

specific person, [Defendant] Gutierrez.” Noting, again, that it should have granted the

section 1118.1 motion, the court struck the gang enhancements.8

The People appeal the trial court‟s postverdict order dismissing the gang

enhancements and gang offense as to Defendant Garcia.

Regardless of the motion presented to the trial court, the record indicates the court

dismissed count 4 and the gang enhancements pursuant to section 1385. Under section

1385, a trial court may dismiss a charge or enhancement for legal insufficiency of the

evidence after a jury has returned a guilty verdict or true finding. (People v. Hatch

(2000) 22 Cal.4th 260, 268 [“trial courts historically have had the power to acquit for

legal insufficiency of the evidence pursuant to section 1385”].) When a trial court

analyzes a motion to dismiss for insufficiency of the evidence, it must review “the entire

record in the light most favorable to the verdict” and determine whether there is

8 The parties agree the trial court attempted to make two orders after the jury returned true findings as to the gang allegations and a guilty verdict on the substantive gang charge. The court dismissed the gang allegations and the substantive gang charge based on legal insufficiency pursuant to section 1385. However, the court later attempted to grant Defendant Garcia‟s motion for new trial based on its view of the evidence as a “13th juror” under section 1118.1. The legal effect of a dismissal under section 1385 is an acquittal of the defendant. It is a final termination of the charge or enhancement, and it is within the category of a judgment. (People v. Superior Court (1963) 217 Cal.App.2d 517, 519.) Thus, once the judge dismissed the gang allegations and the gang charge, those portions of the action no longer existed such that the trial court could not have alternatively granted a motion for new trial.

42 substantial evidence which would permit any rational jury to find the defendant guilty

beyond a reasonable doubt.” (People v. Salgado (2001) 88 Cal.App.4th 5, 15.) On

appeal, we engage in the same task as the trial court and determine whether there was

sufficient evidence to permit a rational jury to convict. (Ibid.; People v. Hatch, supra, at

p. 272.)

In order for the jury to convict Defendant Garcia of active participation in a

criminal street gang (§ 186.22, subd. (a)), the prosecution had to prove the defendant

actively participated in a criminal street gang, knew that members of the gang engage in

or have engaged in a pattern of criminal activity, and willfully assisted, furthered, or

promoted felonious criminal conduct by members of the gang either by directly and

actively committing a felony offense or aiding and abetting a felony offense. (§ 186.22,

subd. (a).) According to the trial court, the evidence did not show that Defendant Garcia

met the definition of “active participation” in the Edgemont Locos “as a matter of law.”

Rather, the court defines active participation as involvement that “„is more than passive

in name only.‟ [Defendant Garcia] didn‟t do that.” We disagree.

Here, Defendant Garcia‟s involvement with Edgemont Locos was more than

nominal or passive. Upon feeling disrespected, she summoned her “homies” (members

of Edgemont Locos) to take care of Jonathan and “shoot up” the house. She stated that

Jonathan needed to be taught a lesson and that she had friends in Edgemont. When

Williams attempted to defuse the situation, reminding Defendant Garcia there were

children present, she said that she did not care, that she was calling her “homies from

Edgemont,” and that something was going to happen. She added, “No one disrespects

43 me.” When Edgemont gang members arrived, she pointed out D.H.‟s mother.

Williams‟s attempt to intervene resulted in his being stabbed and shot at. Defendant

Garcia and her “friends” took off, only to later regroup at Defendant Garcia‟s home.

During a search of the residence, deputies discovered ammunition in the garage, and a

loaded revolver and speed loader hidden in a couch cushion. The revolver previously had

been reported stolen. Clearly, Defendant Garcia actively participated in the gang by

aiding and abetting the crimes of attempted murder, assault with a firearm, and assault

with a knife. Her actions were more than nominal or passive. Thus, the trial court‟s

order dismissing the substantive gang charge under section 186.22, subdivision (a) is

reversed.

In order for the jury to find true the gang enhancement allegations (§ 186.22, subd.

(b)) the prosecution had to prove (1) the commission of the offense was “for the benefit

of, at the direction of, or in association with” a gang, as defined in the statute, and (2) the

defendant had the specific intent to promote, further or assist in any criminal conduct by

members of the gang. (Albillar, supra, 51 Cal.4th at pp. 66-67.) Proof of the requisite

specific intent requires substantial evidence that the defendant acted “„with the specific

intent to promote, further, or assist in any criminal conduct by gang members.‟” (Id. at p.

67. ) “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 of the criminal acts enumerated . . . having a

common name or common identifying sign or symbol, and whose members individually

44 or collectively engage in or have engaged in a pattern of criminal gang activity.”

(§ 186.22, subd. (f).)

To begin with, we previously found sufficient evidence to support the gang

enhancements as to Defendant Gutierrez. Considering the same evidence, we conclude

that sufficient evidence supports the gang enhancements as to Defendant Garcia. In

addition to the testimonies of the witnesses who were present at the party, the prosecution

introduced the testimony of a gang expert, Detective Colmer. He testified that the

Edgemont Locos was a criminal street gang. Contrary to the trial court‟s finding that

Defendant Garcia was not associated with a criminal street gang, but with a specific

person, namely Defendant Gutierrez, the record shows otherwise. Defendant Garcia

called her “homies” after she believed that she had been disrespected. She announced

that she had friends from Edgemont and was going to have them come over and “hit up

the house.” Witnesses heard Defendant Garcia yelling, “Bring a strap [or] bring guns,”

and “Come over [and] . . . [s]hoot everybody up.” This call indicates planning and

direction, supporting the conclusion that the attack on Williams was at the direction of

the Edgemont Locos gang.

In response, three gang members, including Defendant Gutierrez and Avila,

showed up armed and dressed as if they were on a gang mission. Avila stabbed Williams

and then ordered Defendant Gutierrez to shoot Williams. J.G. confirmed that all three

men were from Edgemont. Both defendants specifically referenced Edgemont during the

incident. Defendant Garcia referred to the gang when she threatened Jonathan and called

Defendant Gutierrez to respond to Jonathan disrespecting her. Defendant Gutierrez

45 announced “Edgemont” just before shooting Williams. Clearly, Defendant Garcia acted

in association with Edgemont gang members during the attack. Afterwards, the

assailants, including Defendant Garcia, coordinated their flight from the scene and hid the

weapon used. According to Detective Colmer, the attack benefitted the Edgemont Locos

gang by providing “experience” for its members and by increasing the gang‟s street

reputation for committing violent acts. Again, the gang members announced

“Edgemont” before the attack. Such announcement supports a finding that the attack was

committed to benefit the gang.

Certainly the jury did not have to believe the expert. It could have had a

reasonable doubt as to whether Defendant Garcia‟s reference to having friends in

Edgemont was merely referring to the neighborhood, rather than to a gang. Or it could

have concluded that the expert was simply not credible. If the jury did believe the expert,

however, the expert‟s testimony was sufficient evidence that the crimes were committed

“for the benefit of, at the direction of, or in association with” Edgemont Locos.

Likewise, if Defendant Garcia‟s actions were for purely personal motives, there was no

reason for her or her friends to announce the gang‟s name unless, as the expert testified, it

was to benefit the gang. This was sufficient evidence. (See People v. Mendez, supra,

188 Cal.App.4th at pp. 56-57 [expert testified that crime benefited gang, because

defendant asked victim if he was “from anywhere” and announced gang name].)

46 The above provides substantial evidence to support the first prong of the gang

enhancements, i.e., that Defendant Garcia committed the underlying felonies for the

benefit of, at the direction of, or in association with the Edgemont Locos criminal street

gang.

Regarding the second prong, the record shows that Defendant Garcia became

upset and felt disrespected by a comment made by Jonathan. She told everyone present

that she was going to call her friends and “hit up the house,” along with taking care of

Jonathan. Defendant Garcia said her friends were from Edgemont. When Williams

attempted to calm Defendant Garcia down, she refused. After Edgemont gang members

showed up in response to her phone call, she directed them as to who needed to be taken

care of. Defendant Garcia was convicted of attempted murder, assault with a firearm,

and assault with a knife. Given this evidence, Defendant Garcia clearly had the requisite

intent to promote, further, or assist the criminal conduct of the Edgemont Locos gang.

For the above reasons, the trial court‟s order dismissing the gang-related

enhancements under section 186.22, subdivision (b) is reversed.

XIII. DISPOSITION

The trial court‟s order dismissing the verdicts and findings of the jury as to the

substantive gang charge (§ 186.22, subd. (a); count 4) and the gang enhancements

(§§ 186.22, subd. (b) and 12022.53, subd. (e); counts 1, 2, & 3) relating to Defendant

Garcia are reversed, and the verdicts and findings are reinstated, along with defendant

47 Garcia‟s right to file a motion for new trial. In all other respects, the judgments are

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST Acting P. J. We concur:

RICHLI J.

CODRINGTON J.