P. v. Santiago CA4/2

• Court: California Court of Appeal
• Decided: August 7, 2013
• Docket: E054312
• Status: Unpublished

Opinion

Filed 8/7/13 P. v. Santiago 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Respondent, E054312

v. (Super.Ct.No. SWF028233)

RICARDO SANTIAGO et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.

Affirmed in part and reversed in part.

Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and

Appellant Ricardo Santiago.

Robert Booher, under appointment by the Court of Appeal, for Defendant and

Appellant Andrew Rudy Salas.

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

General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., and

Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant Andrew Rudy Salas, a Hemet Trece gang member, and another man

stood outside a residence yelling for a man named “Psycho.” Jane Doe1 lived at the

residence and advised Salas and the other man to leave. One of them told her to go inside

her residence or she could get killed. A short time later, Doe heard a gunshot outside her

window, and two Hispanic males were seen in the street. A neighbor identified the

shooters as Salas and defendant Ricardo Santiago. Defendants were later found together

several blocks from the residence. Santiago was in possession of a knife, but no gun was

found.

Defendants were tried together. Salas was convicted of making criminal threats

against Doe (the jury was hung on the charge against Santiago), and Santiago was

convicted of possession of a concealed dirk or dagger. They were both acquitted of or

the jury was hung on all of the charges stemming from the shooting. They both were

convicted of the substantive crime of active participation in a criminal street gang and

gang enhancements for their individual crimes.

Defendants now contend jointly and individually as follows:

1. Salas contends that insufficient evidence was presented in order to convict

him of making criminal threats within the meaning of Penal Code section 422.2

1 Doe asked that her name be withheld because she feared retaliation, and the court so ordered. 2 All further statutory references are to the Penal Code unless otherwise indicated.

2 2. Santiago, joined by Salas, contends there was insufficient evidence

presented to support his conviction of the gang enhancement pursuant to section 186.22,

subdivision (b)(1).

3. Santiago, joined by Salas, contends there was insufficient evidence

presented to support his conviction of the substantive crime of active participation in a

criminal street gang pursuant to section 186.22, subdivision (a).

4. Santiago, again joined by Salas, contends that the prosecutor committed

multiple instances of prosecutorial misconduct.

5. Santiago, joined by Salas, contends that the trial court erred by refusing to

respond to a question posed by the jury during deliberations pertaining to the elements of

the active gang participation charge.

6. Santiago contends that his conviction for possession of a dirk or dagger

must be reversed because the trial court accepted a partial verdict.

7. Salas, joined by Santiago, contends that his sentence on the substantive

crime of active participation in a criminal street gang must be stayed pursuant to section

654.

We reverse the convictions for active participation in a criminal street gang as to

both defendants. We otherwise affirm the judgment.

3 I

PROCEDURAL BACKGROUND

Santiago and Salas were both charged as follows: assault with a semiautomatic

firearm in violation of section 245, subdivision (b) (count 1); making a criminal threat in

violation of section 422 (count 2); willful discharge of a firearm in a grossly negligent

manner in violation of section 246.3 (count 3); and the substantive crime of actively

participating in a criminal street gang in violation of section 186.22, subdivision (a)

(count 4). It was alleged as to counts 1 through 3 that the crimes were committed for the

benefit of or at the direction of a criminal street gang. (§ 186.22, subd. (b)(1).) It was

alleged as to count 1 that Santiago personally used a firearm within the meaning of

section 12022.5, subdivision (a), and a principal armed allegation was alleged within the

meaning of section 12022, subdivision (a)(1). Santiago was charged with carrying a dirk

or dagger in violation of section 12020, subdivision (a)(4) (count 5), with the special

allegation that he committed the crime for the benefit of or at the direction of a criminal

street gang (§ 186.22, subd. (b)(1)). Salas was charged with having a suffered one prior

serious or violent felony conviction. (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).)

Santiago and Salas were tried together in front of one jury. The jury found

Santiago guilty of count 5, possession of a dirk or dagger. After delivering this partial

verdict, two jurors were removed due to time constraints, and the jury newly constituted

with two alternate jurors rendered verdicts on the remaining charges. Santiago and Salas

were found guilty of active participation in a criminal street gang (count 4). Salas was

4 found guilty of making a criminal threat (count 2), and the gang allegation for that count

was found true. The gang allegation for possession of dirk or dagger by Santiago (count

5) was found true. Salas was found not guilty of assault with a firearm (count 1). The

jury hung on counts 1, 2, and 3 as to Santiago and on count 3 for Salas, and the trial court

declared a mistrial on these counts. Counts 1 and 3 were dismissed by the trial court in

the interests of justice (§ 1385) for Santiago, as was count 3 for Salas. Count 2 for

Santiago was dismissed after a plea bargain for charges in another case. Salas admitted

that he had suffered one prior serious or violent felony conviction.

Santiago was sentenced to two years on count 5, plus an additional three years for

the gang enhancement, for a total prison sentence of five years. Sentence on the

substantive gang conviction was ordered to run concurrent to count 5.3 Salas was

sentenced to the three strikes sentence of four years on count 2, plus five years for the

gang enhancement for that count, for a total prison sentence of nine years. The sentence

for active participation in a gang was ordered to run concurrent to the imposed sentence.

3 Santiago had credit for time served and was released.

5 II

FACTUAL BACKGROUND

A. People’s Case-in-Chief

1. Detention of Santiago and Salas

On March 19, 2009, Hemet Police Officer Elpidio Ybarra heard over the police

radio a report of a shooting on Campus Way in Hemet and that two suspects (Hispanic

males between 17 and 18 years old with shaved heads and baggy clothes) were at large.4

About 30 minutes later, he saw Santiago and Salas walking down the street. They

appeared to him to match the description of the suspects. When they observed Officer

Ybarra, they turned and walked briskly in another direction. Officer Ybarra exited his

vehicle and ordered them to the ground.

Hemet Police Officer Eric Goodwyn arrived after Officer Ybarra had Santiago and

Salas detained. Officer Goodwyn searched Santiago and Salas. Santiago was wearing

dark, baggy clothing. Officer Goodwyn found a fixed-blade knife hooked to the belt of

Santiago’s pants. He did not see it but felt it during a patdown search. It was seized.

4 Officer Ybarra was no longer with the police department at the time of trial. He had resigned because he violated provisions of the police policy manual. These violations involved refusing to answer questions during an internal investigation and making misleading statements to a supervisor.

6 2. Eyewitness testimony

a. Jane Doe

In the early evening prior to defendants being detained, on March 18, 2009, Doe

was living at a residence on Campus Way in Hemet with her then-boyfriend, Jason

Young.5 Doe suffered from various developmental and mental disabilities, including

attention deficit hyperactivity disorder and obsessive compulsive disorder. It affected her

ability to communicate.

Doe and Young were getting ready to go to bed when she heard what sounded like

rocks hitting the house (the first incident). Doe went outside and saw two Hispanic males

who “looked young,” with shaved heads, throwing rocks at her house yelling out for

somebody named “Psycho.” Doe told them that there was no one at the house by that

name and that they needed to leave.

The men responded that they knew he was there. Doe again told them there was

no one there by that name and that they needed to leave. She told them her son and

grandmother lived in the house. At trial, Doe testified that at this point one of them then

said to her, “You need to go back inside, or you’re going to get killed” or “hurt.” Doe

went back inside her house “thinking it was people being stupid.” No one ever touched

her, and she was not afraid at that time.

5 Doe had a prior conviction for misdemeanor embezzlement in 2006.

7 In court, Doe could not identify which of the defendants made the statement. She

could only identify Salas in court as one of the men present during the first incident. She

could not positively identify Santiago due to the passage of time.

As Doe got ready for bed, between 30 minutes and an hour later, she heard a

“pop” and knew it was a gunshot (the second incident). It scared her. She immediately

dialed 911. She did not see who fired the shot. Doe admitted that she could not say for

sure if the people involved in the second incident were the same people who were

involved in the first incident.

In the 911 call, Doe stated that some “Mexican kids claiming San Jacinto just tried

to shoot my husband.” Doe told the 911 operator that they had come by earlier looking

for someone named “Psycho.” They threw rocks at the window. They left and returned

with guns. She indicated they had put bandanas over their faces. She later stated that

they said, “San Jacinto mother fuckers.” At one point during the call, someone in the

background stated the noise was a firecracker and not a gun. Doe also stated on the call

that when she told the men who were looking for Psycho that they had to leave, one of

them responded, “I suggest you go back inside before I kill you.”

Doe became scared when she heard the gunshot. When she heard the shot, she

thought that the earlier threat was a threat on her life.

Doe was transported to an infield showup where Santiago and Salas were

detained. Before going to the showup, Doe told the officer she needed her glasses, but

she claimed he would not allow her to go back inside her house for the glasses. Two men

8 were sitting on the curb. She identified one of the persons (but she was not 100 percent

sure), and it was not clear from her testimony whom she identified. She did not identify

the second person. She blamed it on not having her glasses.

At first, Doe was certain in court that Salas was the person who threatened her.

She admitted that the prosecutor showed her photographs of defendants prior to trial and

was told they were on trial. Doe never saw the shooters. Later, Doe testified one of the

men (she was not sure if it was Salas) said, “You better go back inside before you get

killed.” Doe said she had a hard time looking at Salas in court because, even if he did not

make the threat, she felt to that day that he had threatened her. She was certain Salas was

at the first incident.

Doe tried to go back to the police station to talk about not wearing her glasses at

the infield showup. She wanted to clarify she was not certain of her identification. One

of the officers said to her, “I don’t need a lying bitch coming in here and telling me

what.” [Sic.] He told her to leave. For the first time at trial, she claimed she recognized

the voice in the second incident as the same as the one threatening her earlier. She never

heard anyone say Hemet Trece.

Doe had been extremely scared since this incident. A few weeks after this

incident, someone yelled at her, “Snitches get stitches.” Another time someone drove by

and said to her, “Just because someone is yelling out ‘San Ja’ doesn’t mean you have to

put them away.”

9 b. Young

Around 11:00 p.m. Young was asleep in his bedroom when he heard a disturbance

on the front porch. He went to his window because he could see the porch from his

bedroom. 6 He observed Doe and two men. He described them as younger Hispanic

males, around 18 years old, wearing dark clothing. Young told them to leave because

Doe’s son was there, and he said, “I don’t need this here right now.” They walked away

without incident.

About 30 minutes later, two men came to the house. Young looked out his

bedroom window. They were dressed the same as the men who had been at the house

earlier, but these men had bandanas covering their faces from the nose down. One of the

men was wearing a hat. Young observed one of the men holding a semiautomatic

firearm. Young had no trouble seeing these two men. Young then heard, “First Street

motherfucker” and a gunshot.7

At trial, Young said for the first time that one of the men had on a shirt that had

white lettering. Also for the first time, Young said that one the men who first came to his

house had the same shirt with the writing on it.

6 Young had prior convictions of second degree burglary in 2003, misdemeanor false statements to an officer in 2006, and third degree burglary in 2000. 7 Young had told officers prior to trial that he heard “San Jacinto First Street motherfuckers.” He could not specifically recall “San Jacinto” at trial.

10 Young and Doe called the police. Young was taken to the infield showup. He

identified Santiago as holding the gun and was 100 percent certain he was the shooter in

the second incident.8 He could not identify Salas.

Young recalled that Santiago had a bandana partially covering his face at the

infield showup. He admitted that all he saw of the shooting suspect was his eyes and

nose. Young identified Santiago due to the writing on his shirt, his eyes, and his nose.

c. Cleveland

Kevin Cleveland lived next door to Doe and Young. 9 That night, he was on his

porch smoking a cigarette. He observed Santiago and Salas “accost[]” Doe; he identified

both defendants in court. Cleveland described them as pushing and shoving Doe.10

Cleveland thought that Doe and the defendants argued for two minutes. He went

inside. A few seconds later, he heard a gunshot. He looked outside and saw Salas

holding a semiautomatic firearm. Santiago had already run off. The police then arrived.

However, at trial, he identified Santiago as the shooter. Cleveland found a nine-

millimeter shell casing on the ground in the street. He stated that neither one of the men

was wearing a bandana when the shooting occurred.

Cleveland initially described the suspects to police as one Hispanic male and one

White male. Cleveland identified Santiago and Salas at the infield showup and was 99.9

8 The prosecutor pointed out Santiago to Cleveland prior to his identification. 9 Cleveland had a prior conviction for spousal battery in 2007. 10 The prosecutor had shown Cleveland photographs of Salas and Santiago prior to trial and he read the statement he gave to police.

11 percent certain at the time of the showup; he was 100 percent certain of his identification

at the trial.

Officer Ybarra drove Cleveland to the infield showup and testified that Cleveland

immediately identified Salas and Santiago.

3. Investigation

A jail phone call involving Salas was recorded. In the call, Salas is asked why he

got “busted.” He responded, “[F]or shooting and shit.” The person responded, “You’re

dumb I told you that.”

Santiago also made a jail call that was recorded on August 5, 2010. Santiago said,

“‘Because when you see . . . Mo, I go to the same court with him, my crimey.’”

Retired Hemet Police Officer Douglas Barrett responded to Campus Way around

11:43 p.m. Cleveland told him that he saw two males on the street arguing; he never

mentioned Doe. He went inside his house and heard a single gunshot. Doe told Officer

Barrett the men told her, “Go back inside or I’ll kill you.” Young said he was outside on

his porch when two males approached. They yelled, “San Jacinto First Street

motherfuckers.” One of them pointed a gun at him, and he went inside. He then heard a

single gunshot. Cleveland showed him the nine-millimeter shell casing in the street.

Officer Barrett took Doe to the infield showup. She identified Salas as being at

her house. Doe never said anything to the officer about wanting her glasses. She said

she was 100 percent sure of her identification. Doe did not tell him what part Salas

played when he was at her house. Young identified Santiago and was sure of his

12 identification. He claimed that Santiago pointed a gun at him while he was on the porch.

Cleveland never mentioned Santiago’s shirt with lettering. A gun was never located.

Gunshot residue tests were conducted on Salas and Santiago that night, but no gunshot

residue was found on them.

4. Gang evidence

Hemet Police Corporal Takashi Nishida testified as a gang expert. He indicated

that violence was a big factor in gangs, and instilling fear in the community was a sign of

respect for the gang. The Hemet Trece gang is a rival of the San Ja First Street gang.

The area where the shooting occurred was claimed by Hemet Trece.

San Ja First Street gang members always referred to themselves by “San Ja First

Street” or San Ja; they did not use “San Jacinto.” As of March 18, 2009, the primary

activities of the Hemet Trece gang were murder, attempted murder, assault with a deadly

weapon, firearms violations, burglary, drug sales, and vandalism. Other gang members

had been convicted of assault with a deadly weapon and making criminal threats.

Salas had a Hemet tattoo. Corporal Nishida had personal contact with both Salas

and Santiago. They both had field identification cards on file. According to the field

identification cards, Santiago’s gang moniker was Lonely or Lonely Boy. Santiago had

identified himself as a Hemet Trece gang member. Santiago was in pictures with other

Hemet Trece gang members and gang graffiti.

According to field identification cards, Salas used the gang moniker Moe. Salas

had been a member of Hemet Trece since he was 14 years old. Salas later denied his

13 gang membership but recently had been found with a hat with “Moe” and the gang’s

name written on it. Salas had been with another Hemet Trece gang member two months

prior to the instant shooting. Salas had a Hemet tattoo, which had been recently

modified. A Hemet Trece gang member had been in the courtroom the prior day.

It was Corporal Nishida’s opinion that on March 8, 2009, both Salas and Santiago

were active Hemet Trece gang members. After being given a hypothetical about the

shooting, he opined that it was done for the benefit of the gang and in association with the

gang. It was possible they yelled out “San Jacinto” to start a fight with Psycho, who may

have been a member. Campus Way was in Hemet Trece gang territory.

Corporal Nishida indicated that if the shooters were San Jacinto gang members,

they would have yelled out San Ja, not San Jacinto First Street. Corporal Nishida

indicated that a “crimey” was a partner in crime. He was unaware of any San Jacinto or

Hemet Trece gang member named Psycho. The area were Santiago and Salas were

detained was a 10 to 15 minute walk from the shooting site.

Corporal Nishida was given the hypothetical that two Hemet Trece gang members

are walking the streets of Hemet, a territory claimed by Hemet Trece, and one of them

has a concealed knife on his waistband. The knife is covered by a long baggy shirt. He

was asked if the possession of the knife was done for the benefit of, at the direction of, or

in association with the criminal street gang, Hemet Trece. Corporal Nishida said the

association was found by the two gang members. The knife is possessed for defensive

14 and offensive reasons. As gang members, they are constantly being challenged by other

gang members, and they carry the knife for protection.

Later, Corporal Nishida was asked how calling out the rival gang’s name -- not in

a threatening manner -- would benefit the gang. Corporal Nishida said it was not the

“norm” but that Hemet Trece members would still brag about committing the crime, and

others would find out they were involved by word of mouth. Corporal Nishida felt that

the general public would only know that a gang committed the crime. It would still instill

fear. He admitted it would bolster the reputation of the rival gang. Again Corporal

Nishida indicated that the norm was for a gang to call out its own gang name.

B. Defense

Santiago called Robert Watts, who was an investigator employed by the public

defender’s office. Watts spoke with Doe on August 25, 2009. She was in custody. Doe

claimed that she thought she knew Salas from somewhere else, but she did not remember

him being in front of her house that night. She told this to the police officer.

III

INSUFFICIENT EVIDENCE CRIMINAL THREATS

Salas contends that there was insufficient evidence presented to support his

conviction for making criminal threats. He argues that the evidence was insufficient to

find that the statement made to Doe was so unequivocal, unconditional, and immediate as

to constitute a threat. Moreover, he insists that Doe did not express fear during the first

incident and only became fearful when she heard gunshots outside her residence 30

15 minutes later. However, Salas was found not guilty of being involved in the second

shooting. As such, the evidence does not support his conviction for making criminal

threats. Finally, Salas argues he could not be convicted of aiding and abetting the

criminal threat.

“Our task is clear. ‘On appeal we review the whole record in the light most

favorable to the judgment to determine whether it discloses 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. [Citations.] The

standard of review is the same in cases in which the People rely mainly on circumstantial

evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds

that circumstantial evidence is susceptible of two interpretations, one of which suggests

guilt and the other innocence [citations], it is the jury, not the appellate court[,] which

must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the

circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing

court that the circumstances might also reasonably be reconciled with a contrary finding

does not warrant a reversal of the judgment.”’ [Citations.]” [Citation.]’ [Citations.] The

conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there

sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v.

Cravens (2012) 53 Cal.4th 500, 507-508.)

For a conviction of making a criminal threat, the People must prove as follows:

“(1) The defendant willfully threatened to commit a crime that will result in death or

16 great bodily injury to another person. (2) The defendant had the specific intent that the

statement be taken as a threat. (3) The threat was on its face and under the

circumstances ‘“so unequivocal, unconditional, immediate, and specific as to convey to

the person threatened, a gravity of purpose and an immediate prospect of execution of the

threat.”’ (4) The threat caused the victim ‘“to be in sustained fear for his or her own

safety or for his or her immediate family’s safety.”’ (5) The victim’s fear was

reasonable under the circumstances. [Citations.]” (People v. Jackson (2009) 178

Cal.App.4th 590, 596.) “‘In enacting section 422 . . . , the Legislature declared that every

person has the right to be protected from fear and intimidation. This act was in response

to the growing number and severity of threats against peaceful citizens.’ [Citation.]”

(People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)

Defendant initially contends that there was insufficient evidence that the statement

to Doe on its face was so unequivocal, unconditional, immediate, and specific as to

convey to her a gravity of purpose and an immediate prospect of execution of the threat.

Here, Doe said on the 911 call that the persons during the first incident had told her, “I

suggest you go back inside before I kill you.” Doe told Officer Barrett that one of them

threatened her to go back inside or “I’ll kill you.” At trial, she stated the statement to her

was that, “You need to go back inside, or you’re going to get killed” or “hurt.”

Doe also testified, “I’m like, in my head, I just said, ‘whatever,’ because people

are stupid and they say stupid things.” The prosecutor then asked if she was not sure if

they said “killed” or “hurt.” Doe responded, “It’s been two years. I know either way that

17 they were threatening me in some form and fashion. I don’t remember if it was killed or

hurt verbally, but I know it was a verbal threat.”

“A threat is sufficiently specific where it threatens death or great bodily injury. A

threat is not insufficient simply because it does ‘not communicate a time or precise

manner of execution, section 422 does not require those details to be expressed.’

[Citation.]” (People v. Butler (2000) 85 Cal.App.4th 745, 752.) The defendant must

intend for the victim to receive and understand the threat, and the threat must be such that

it would cause a reasonable person to fear for his or her safety or the safety of his or her

immediate family. (People v. Thornton (1992) 3 Cal.App.4th 419, 423 [Fourth Dist.,

Div. Two], rejected on other grounds by People v. Hudson (1992) 5 Cal.App.4th 131,

143, fn. 5.)

The statement standing alone expressed to Doe that she was going to get hurt or

killed if she did not go inside and constituted a threat of great bodily injury or death.

Although Salas argues that it could be a warning to her, the evidence supports that it was

a threat. Based on either version of the threat, Doe could have reasonably been placed in

the requisite state of sustained fear for her safety. The fact that she lived in a

neighborhood where she was used to threats, or statements like this, does not impact the

unequivocal nature of the threat. A reasonable person would fear for his or her own

safety.

Further, the evidence established that, based on the surrounding circumstances,

Doe did have sustained fear based on the statement. Although the fear was not

18 immediate, such immediacy was not required. Doe stated, “I’m used to idle threats.

People say things out of anger or just trying to make themselves look bigger in front of

someone else or whatever the case may be. But when you follow through with it in any

means, it actually makes you stop and think, okay. What are they capable of, and how

true to their word are they going to act?” The prosecutor then asked, “So once that shot

was fired is when you became afraid of that; correct?” She responded, “Yes. Very much

so.” The prosecutor then asked her how afraid of the threat she was after that shot was

fired. She responded, “The same amount I am today. I’m still terrified to walk into

Hemet without looking over my shoulder.”

To establish the “sustained fear” element, “the statute . . . requires proof of a

mental element in the victim.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The

threat must “be such as to cause a reasonable person to be in sustained fear for his

personal safety. . . . The phrase to ‘cause[] that person reasonably to be in sustained fear

for his or her own safety’ has a subjective and an objective component. A victim must

actually be in sustained fear, and the sustained fear must also be reasonable under the

circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140.) “[I]t is clear a

jury can properly consider a later action taken by a defendant in evaluating whether the

crime of making a terrorist threat has been committed. . . . The point is that all of the

circumstances can and should be considered in determining whether a terrorist threat has

been made.” (People v. Solis, supra, 90 Cal.App.4th at p. 1014.)

19 “For instance, in People v. Martinez [(1997)] 53 Cal.App.4th 1212, the defendant

claimed the language of his threat was vague and did not specifically convey a threat of

great bodily injury or death. The appellate court conceded his threat may not have, by

itself, conveyed a threat to commit great bodily injury or death but held that the trier of

fact could consider all of the surrounding circumstances in deciding whether a terrorist

threat had been made. In that case, the defendant set fire to a building where the victim

worked a day after the defendant had made the threat. The court held the jury could

properly consider that fact. It reasoned: ‘Defendant’s activities after the threat give

meaning to the words and imply that he meant serious business when he made the threat.’

[Citation.]” (People v. Solis, supra, 90 Cal.App.4th at p. 1013.)

This case is similar to People v. Mendoza (1997) 59 Cal.App.4th 1333, superseded

by statute on other grounds as noted in People v. Franz (2001) 88 Cal.App.4th 1426. In

Mendoza , the victim testified against the defendant’s brother at a preliminary hearing.

Defendant went to the victim’s house after the testimony and told the victim that she had

“‘fucked up his brother’s testimony’” and that he was going to talk to “‘some guys from

Happy Town,’” a gang to which both defendant and his brother belonged. (Mendoza, at

p. 1337.) The victim knew defendant and his brother because she had been an associate

in the gang. (Id. at p. 1341.) The victim did not initially take the words as a threat.

However, about 20 to 30 minutes later, she heard a horn honking outside her home and

saw defendant’s friend sitting across the street in his car. (Id. at p. 1338.) It was at this

point that the victim became “afraid for her life” and called the police. (Ibid.) On appeal,

20 the appellate court explained that while the defendant’s “words were ambiguous, did not

mention a particular criminal act or give other particulars, a rational juror could have

found -- based on all the surrounding circumstances -- [defendant]’s words were

sufficiently unequivocal, unconditional, immediate and specific to convey to [the victim]

a gravity of purpose and immediate prospect of death or serious bodily injury.” (Id. at p.

1342.)

Salas argues that “appellant’s conviction for criminal threats cannot stand because

the victim’s fear did not arise from appellant’s actions.” However, this ignores that Salas

either stated or aided and abetted in a statement that he was going to kill her if she did not

go inside. The jury could reasonably conclude the statement was that she was going to

get killed by standing up to Salas. This was supported by the evidence.

Moreover, this statement was stronger than that in Mendoza. Although Doe

claimed she was not frightened at the time this statement was made, she later became

afraid when she thought that Salas or the person he had previously been with were

shooting at her house. Despite the fact that Santiago and Salas were not convicted

beyond a reasonable doubt of the shooting, it was Doe’s subjective belief that they were

following through on their threat that caused her fear. We see no reason to distinguish

this case from Mendoza. Even assuming that Salas was not involved in the shooting, the

fact that he made or aided and abetted the threatening statement, and that Doe finally

realized the gravity of the statement based on her house being the subject of gunshots,

supports his conviction of making criminal threats. As we have found, the statement was

21 unequivocal. Even if we conclude that Santiago and Salas were not involved in the

shooting, this unrelated event only made Doe realize her fear when she should have been

fearful when the statement was made.

Here, after the statement was made to her, Doe heard a gunshot. In her mind, that

person shooting was Salas or the person with Salas. Although Salas was not convicted of

the subsequent shooting, it certainly could be considered a circumstance surrounding the

statement that shows it was unequivocal, unconditional, immediate, and specific and

showing that Doe sustained fear from the statement.

Salas also contends that even if the statement was unequivocal, unconditional,

immediate, and specific and Doe was in sustained fear, he could not be found guilty on an

aiding and abetting theory. In closing argument, the prosecutor argued that they could

convict on an aiding and abetting theory because there was no testimony as to who

threatened Doe. The jury was instructed on aiding and abetting.

In order to convict a person on a theory that he aided and abetted a crime, there

must be proof that “an aider and abettor with knowledge of the criminal purpose of the

perpetrator and with an intent or purpose either of committing, or of encouraging or

facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560)

“Among the factors which may be considered in determining aiding and abetting are:

presence at the crime scene, companionship, and conduct before and after the offense.”

(In re Juan G. (2003) 112 Cal.App.4th 1, 5, fn. omitted.) Whether a person has aided and

22 abetted in the commission of a crime ordinarily is a question of fact, and all conflicts in

the evidence and reasonable inferences are resolved in favor of the judgment. (Ibid.)

Here, it was undisputed that Salas was present when the threatening statement was

made. Salas was with another Hispanic male, possibly Santiago, throwing rocks at Doe’s

house and looking for someone named “Psycho.” Doe came outside and told them that

Psycho did not live there and that they had to leave. They told her they did not believe

her and refused to leave. It was at this point that either Salas, Santiago, or some other

person said that she would be killed or they would kill her. Young got involved and told

them to leave, and they complied. Salas was a short time later, only several blocks from

the location, with Santiago.

The jury here could reasonably conclude that if Salas did not make the statement,

he aided and abetted the speaker. Salas remained with the person throughout the

incident, despite being told by Doe to leave. He did nothing to clarify the statement to

Doe and only walked away when Young told them to leave. Salas remained close to the

area where the incident occurred and was with Santiago. Although the jury could not

reach a decision as to whether Santiago committed a criminal threat, there was some

evidence he was present during the first incident. Cleveland identified Santiago as being

at the scene. Even if it was not Santiago, the evidence was sufficient for the jury to find

that Salas aided and abetted the criminal threat.

23 IV

INSUFFICIENT EVIDENCE OF GANG ENHANCEMENT

(SECTION 186.22, SUBDIVISION (B)(1))

Santiago contends that the evidence was insufficient to support his conviction of

the gang allegation pursuant to section 186.22, subdivision (b)(1). Here, Santiago’s

conviction for the gang enhancement was based on his conviction for possession of a dirk

or dagger. Salas joined in Santiago’s opening brief. However, in his request, Salas

provided no argument as to reversal of his section 186.22, subdivision (b)(1)

enhancement on his criminal threat conviction, and the enhancement on the dirk or

dagger charge does not apply to him. We will not make the argument for him and will

only address whether the evidence of the gang enhancement was sufficient to uphold the

gang enhancement on the possession of a dirk or dagger charge against Santiago.

We have already set forth the standard of review for sufficiency of the evidence

claims. To prove a gang enhancement allegation under section 186.22, subdivision

(b)(1), the People must prove that the crime for which the defendant was convicted had

been “committed for the benefit of, at the direction of, or in association with any criminal

street gang, with the specific intent to promote, further, or assist in any criminal conduct

by gang members . . . .”

“In addition, the prosecution must prove that the gang (1) is an ongoing

association of three or more persons with a common name or common identifying sign or

symbol; (2) has as one of its primary activities the commission of one or more of the

24 criminal acts enumerated in the statute; and (3) includes members who either individually

or collectively have engaged in a ‘pattern of criminal gang activity’ by committing,

attempting to commit, or soliciting two or more of the enumerated offenses (the so-called

‘predicate offenses’) during the statutorily defined period. [Citation].” (People v.

Gardeley (1996) 14 Cal.4th 605, 617, italics omitted.) Santiago only disputes that he

committed the crime for the benefit of and at the direction of the Hemet Trece gang.

To meet the first prong, the crime must be gang related. (People v. Albillar (2010)

51 Cal.4th 47, 60.) A crime is not gang related simply because it is committed by gang

members. (Ibid.) However, where an expert opines that “particular criminal conduct

benefited a gang by enhancing its reputation for viciousness[, this] can be sufficient to

raise the inference that the conduct was ‘committed for the benefit of . . . a[] criminal

street gang’ within the meaning of section 186.22[, subdivision ](b)(1).” (Id. at p. 63.)

As to the second prong of the enhancement, “specific intent to benefit the gang is

not required. What is required is the ‘specific intent to promote, further, or assist in any

criminal conduct by gang members . . . .’” (People v. Morales (2003) 112 Cal.App.4th

1176, 1198 [Fourth Dist., Div. Two].) “It is well settled that a trier of fact may rely on

expert testimony about gang culture and habits to reach a finding on a gang allegation.

[Citation.]” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) An expert cannot

testify to the specific intent of the defendant on trial. (People v. Killebrew (2002) 103

Cal.App.4th 644, 658.)

25 In the recent California Supreme Court case, People v. Rodriguez (2012) 55

Cal.4th 1125 (Rodriguez), the court distinguished the enhancement from the substantive

gang crime embodied in section 186.22, subdivision (a), which will be discussed, post.

“Section 186.22[, subdivision ](a) and section 186.22[, subdivision ](b)(1) strike at

different things. The enhancement under section 186.22[, subdivision ](b)(1) punishes

gang-related conduct, i.e., felonies committed with the specific intent to benefit, further,

or promote the gang. [Citation.] However, ‘[n]ot every crime committed by gang

members is related to a gang.’ [Citation.] As such, with section 186.22[,

subdivision ](a), the Legislature sought to punish gang members who acted in concert

with other gang members in committing a felony regardless of whether such felony was

gang related. [Citation.]” (Rodriguez, at p. 1138.)

It further held, “A lone gang member who commits a felony will not go

unpunished; he or she will be convicted of the underlying felony. Further, such a gang

member would not be protected from having that felony enhanced by section 186.22[,

subdivision ](b)(1), which applies to ‘any person who is convicted of a felony committed

for the benefit of, at the direction of, or in association with any criminal street gang, with

the specific intent to promote, further, or assist in any criminal conduct by gang

members . . . .’ Because the gang enhancement under section 186.22(b)(1) requires both

that the felony be gang related and that the defendant act with a specific intent to

promote, further, or assist the gang, these requirements provide a nexus to gang activity

26 sufficient to alleviate due process concerns. [Citation.]” (Rodriguez, supra, 55 Cal.4th at

pp. 1138-1139.)

Here, Santiago was in Hemet Trece gang territory walking the streets with fellow

gang member, Salas. He was in possession of knife that qualified as a dirk or dagger.

Corporal Nishida testified that gang members in their own gang territory get challenged

by other gang members, and knives are carried for offensive and defensive reasons. He

testified that the primary activities by the gang included assault with a deadly weapon.

Santiago and Salas were active gang members. This evidence established that the

possession of the dirk or dagger was gang related and that it was possessed to promote or

benefit the gang.

Santiago relies on People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) to

support his claim that this evidence was insufficient to uphold the gang enhancement for

his possession of a dirk or dagger. In Ramon, the defendant was stopped while driving a

stolen vehicle and had an unregistered firearm in his possession. (Id. at p. 847.) At trial,

the prosecution’s gang expert testified that the location at which Ramon and his

passenger (a fellow gang member) were stopped was in the territory of the Colonia

Bakers criminal street gang and that the territory was controlled through violence and

intimidation. The primary activities of the gang were identified as sales and possession

of narcotics, theft, extortion, burglaries, robberies, car theft, and victim and witness

intimidation. (Ibid.) The expert stated that car theft was related to the crimes committed

by the gang because by driving a stolen truck within the gang’s territory, the member

27 could commit numerous crimes, then dispose of the vehicle and have no ties to it or the

crime committed in it. The expert further testified that the unregistered gun and stolen

vehicle could be used to spread fear and intimidation, which benefitted the gang.

Moreover, the stolen vehicle and unregistered firearm were tools the gang needed to

commit other crimes to further the gang. (Id. at pp. 847-848.)

On appeal, the Ramon court found that the expert relied on the belief the pair were

members of the Colonia Bakers criminal street gang and the fact they were stopped in

territory claimed by the Colonia Bakers. (Ramon, supra, 175 Cal.App.4th at p. 849.)

The appellate court concluded: “The People’s expert simply informed the jury of how he

felt the case should be resolved. This was an improper opinion and could not provide

substantial evidence to support the jury’s finding. There were no facts from which the

expert could discern whether Ramon and [his passenger] were acting on their own behalf

the night they were arrested or were acting on behalf of the Colonia Bakers. While it is

possible the two were acting for the benefit of the gang, a mere possibility is nothing

more than speculation. Speculation is not substantial evidence. [Citation.]” (Id. at p.

851.)

Santiago also relies upon In re Frank S., supra, 141 Cal.App.4th 1192. In Frank

S., a minor was found to be in possession of a knife, a small amount of

methamphetamine, and a red bandana. He claimed he possessed the knife in order to

protect himself from rival gang members. (Id. at p. 1195.) The appellate court found that

evidence insufficient to warrant the conclusion the minor had the specific intent to

28 promote, further, or assist in criminal conduct by gang members. (Id. at p. 1196.) It

found that the prosecution failed to provide any evidence that the minor was in gang

territory, had gang members with him, or had any reason to use the knife in a gang-

related offense. (Id. at p. 1199.)

Here, unlike Frank S., Santiago was in gang territory when he was stopped, and he

was with another Hemet Trece gang member. Further, although it appears the facts in

Ramon are similar to this case, there are some differences. In Ramon, the expert relied

almost exclusively on the fact that the defendant and his passenger were gang members

and in gang territory. Here, Corporal Nishida provided testimony that possession of the

knife was both for defensive and offensive reasons that would benefit the Hemet Trece

gang. In addition, he testified that the primary activities of the gang included assault with

a deadly weapon. This evidence tied Santiago’s possession of the knife to the gang’s

primary crimes. Corporal Nishida explained that crimes of violence were important to

the gang’s reputation in the community. Unlike in Ramon, Corporal Nishida did not

testify as to Santiago’s specific intent but, rather, how the possession of a knife in gang

territory by an active gang member benefits the gang. Moreover, Ramon was criticized in

People v. Ochoa (2009) 179 Cal.App.4th 650, 661, footnote 7, that the evidence did

establish the enhancement.

The evidence here was sufficient to support Santiago’s conviction for the gang

enhancement.

29 V

INSUFFICIENT EVIDENCE OF SUBSTANTIVE CRIME OF ACTIVE

PARTICIPATION IN A GANG (SECTION 186.22, SUBDVISION (A))

Both Salas and Santiago contend there was insufficient evidence presented to

convict them of count 4, active participation in a street terrorism gang within the meaning

of section 186.22, subdivision (a). Santiago claims that his possession of the knife -- the

only crime of which he was convicted -- did not support the enhancement. Santiago was

not convicted of the criminal threat charge so the first incident involving the criminal

threat could not be considered to support this enhancement for either Santiago or Salas.

The standard of review for sufficiency claims has been stated, ante. Section

186.22, subdivision (a) defines the crime as follows: “Any person who actively

participates in any criminal street gang with knowledge that its members engage in or

have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,

or assists in any felonious criminal conduct by members of that gang, shall be punished

by imprisonment in a county jail for a period not to exceed one year, or by imprisonment

in the state prison for 16 months, or two or three years.”

“The substantive offense defined in section 186.22[, subdivision ](a) has three

elements. Active participation in a criminal street gang, in the sense of participation that

is more than nominal or passive, is the first element of the substantive offense defined in

section 186.22[, subdivision ](a). The second element is ‘knowledge that [the gang’s]

members engage in or have engaged in a pattern of criminal gang activity,’ and the third

30 element is that the person ‘willfully promotes, furthers, or assists in any felonious

criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42

Cal.4th 516, 523.)

The California Supreme Court has held that the third element of the offense is not

satisfied when a gang member commits a felony while acting alone. (People v.

Rodriguez, supra, 55 Cal.4th 1125.) The word “members,” as the Supreme Court

explained, “is a plural noun.” (Id. at p. 1132.) “Therefore, to satisfy the third element, a

defendant must willfully advance, encourage, contribute to, or help members of his gang

commit felonious criminal conduct. The plain meaning of section 186.22[, subdivision ]

(a) requires that felonious criminal conduct be committed by at least two gang members,

one of whom can include the defendant if he is a gang member.” (Ibid.) The felonious

criminal conduct referred to in the statute must be committed “‘by members of that

gang.’” (Id. at p. 1131.)

Here, there is no evidence that Salas was aware of the knife possessed by

Santiago. With the jury being hung on the criminal-threat charge and the charges

stemming from the shooting, the only crime of which Santiago was convicted was

possession of the dirk or dagger. There is absolutely no evidence that Salas participated

in that crime. As indicated in Rodriguez, “section 186.22[, subdivision ](a) reflects the

Legislature’s carefully structured endeavor to punish active participants for commission

of criminal acts done collectively with gang members.” (Rodriguez, supra, 55 Cal.4th at

p. 1139.) Santiago’s possession of the knife, based on the evidence presented, showed

31 that he acted alone in perpetrating this felony. Officer Goodwyn only found the knife

when he performed a patdown search. Although Santiago possessed the knife to promote

and benefit the Hemet Trece gang, he never used it in Salas’s presence. Santiago was

punished for such possession by the gang enhancement. As such, neither Salas nor

Santiago could be found guilty of active participation in a gang pursuant to section

186.22, subdivision (a).11

VI

PROSECUTORIAL MISCONDUCT

Santiago contends, presumably jointed by Salas, that the prosecutor committed

misconduct on numerous occasions throughout the trial.

A. Standard of Review

“‘The standards governing review of [prosecutorial] misconduct claims are settled.

“A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits

misconduct, and such actions require reversal under the federal Constitution when they

infect the trial with such ‘“unfairness as to make the resulting conviction a denial of due

process.”’ [Citations.] Under state law, a prosecutor who uses such methods commits

misconduct even when those actions do not result in a fundamentally unfair trial.”

[Citation.] “In order to preserve a claim of misconduct, a defendant must make a timely

11 Since we reverse the active participation charge against Salas and Santiago, we need not address the claim in Salas’s supplemental brief, with which Santiago has joined, that the sentence on the charge should have been stayed pursuant to section 654.

32 objection and request an admonition; only if an admonition would not have cured the

harm is the claim of misconduct preserved for review.” [Citation.] When a claim of

misconduct is based on the prosecutor’s comments before the jury, “‘the question is

whether there is a reasonable likelihood that the jury construed or applied any of the

complained-of remarks in an objectionable fashion.’” [Citation.]’ [Citation.]” (People v.

Gonzales (2011) 51 Cal.4th 894, 920.) In assessing prejudice, we “‘do not lightly infer’”

the jury drew the most damaging meaning from the prosecutor’s statements. (People v.

Frye (1998) 18 Cal.4th 894, 970, disapproved on a different point in People v. Doolin

(2009) 45 Cal.4th 390, 421, fn. 22.)

B. Analysis

Santiago pointed to several instances in his opening brief of misconduct that

occurred in the trial court. These included failure to disclose evidence, discovery

violations, Corporal Nishida’s testimony regarding calling out a rival gang name,

vouching for witnesses, improper questioning, misstating the evidence, tainting the

witnesses, and misstating the law. We have reviewed these claims and the record

supporting these claims. Most of the claims went to prejudice on the active participation

in a gang crime and the shooting. However, since we have reversed defendants’

convictions on the active participation offense on the ground of insufficiency of the

evidence and the jury was hung on the shooting offenses, we need not address these

issues and do not find prosecutorial misconduct. The only issue we find pertinent

here -- to Santiago’s conviction of possession of a dirk or dagger or Salas’s conviction of

33 making criminal threats -- is the disparagement of defendants by the prosecutor during

closing argument.12

During rebuttal argument, the prosecutor responded to argument by both counsel

that Cleveland was excited to find the shell casing. The prosecutor stated, “And for a

member of our community to be excited and happy that he might have helped solve a

crime when violence is overrun, Hemet is not what it used to be. Happy we might put

these scumbags in jail.”

The prosecutor closed by saying, “Now you have all the tools you need to do the

right thing, the right thing for our community. To hold these scumbag gangsters

accountable for polluting our neighborhoods.” There was no objection.

The People argue the argument was forfeited by counsel’s failure to

contemporaneously object and request a jury admonition. We agree and find that no

prosecutorial misconduct can be shown due to the failure to object. (People v. Clark

(2011) 52 Cal.4th 856, 960; People v. Bonilla (2007) 41 Cal.4th 313, 336.) However,

since Santiago also argues that if he waived the claim because of his counsel’s failure to

object to the instance of alleged misconduct, he received ineffective assistance of

counsel, we consider whether they were prejudiced by the comments.

12 Santiago refers to a misstatement of the law regarding Ramon, supra, 175 Cal.App.4th 843. However, this argument went to the gang participation charge and not the enhancement.

34 We do not find prejudice. The evidence that Santiago possessed a dirk or dagger

was overwhelming and undisputed. Salas provides no argument regarding the

prosecutorial misconduct and how it prejudiced his conviction of committing criminal

threats. The fact that the jury was told that Santiago and Salas were gang members who

needed to be convicted did not so infect the trial as to make the resulting conviction a

denial of due process. (People v. Gonzales, supra, 51 Cal.4th at p. 920.) We find no

prejudicial prosecutorial misconduct.

VII

JURY QUESTION

Santiago, joined by Salas, contends the trial court erred by failing to respond to a

question from the jury. Prior to the discharge of the two jurors, the jurors asked a second

question as follows: “Does each el[e]ment of Count 4 (1, 2, 3 (a-b)) as relates to pgs 23-

27 need to be satisfied for a guilty verdict to be entered[?]” According to the clerk’s

transcript, the response was “on the record.” At that point, two of the jurors were

removed due to other commitments and were replaced by two alternate jurors. There was

no further discussion of the jury’s question on the record. Since we have reversed the

convictions for this count (active participation in a gang) for both Santiago and Salas, we

need not address this issue.

35 VIII

PARTIAL VERDICT

Santiago contends that the trial court erred by accepting a partial verdict on count

5, his conviction for possessing a dirk or dagger.

A. Additional Factual Background

Before dismissing the two jurors to be replaced by the alternates, the jury

foreperson acknowledged that they had reached a verdict on one of the counts. The trial

court felt that it could take the guilty verdict prior to dismissing the two jurors. The jury

found Santiago guilty of possession of a dirk or dagger within the meaning of section

12020, subdivision (a). The jurors were asked if this was their verdict, and all of the

jurors answered in the affirmative. All parties declined to have the jury polled. The two

jurors were replaced with the alternate jurors, and the entire jury was instructed to start

deliberations anew.

Section 1164, subdivision (a) provides as follows: “When the verdict given is

receivable by the court, the clerk shall record it in full upon the minutes, and if requested

by any party shall read it to the jury, and inquire of them whether it is their verdict. If

any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out;

but if no disagreement is expressed, the verdict is complete, and the jury shall, subject to

subdivision (b), be discharged from the case.” Subdivision (b) provides as follows: “No

jury shall be discharged until the court has verified on the record that the jury has either

36 reached a verdict or has formally declared its inability to reach a verdict on all issues

before it, including, but not limit to, the degree of the crime or crimes charged, and the

truth of any alleged prior conviction whether in the same proceeding or in a bifurcated

proceeding.”

“An essential element of [the] constitutional right [to trial by jury is] a unanimous

verdict by 12 jurors. [Citation.] For unanimity to be found, ‘[t]he jurors must appear in

court and be asked “whether they have agreed upon their verdict, and if the foreman

answers in the affirmative, they must, on being required, declare the same.” [Citation.]’

[Citation.]” (People v. Garcia (2012) 204 Cal.App.4th 542, 549.) The verdict is

complete when it has been rendered in compliance with section 1164; it is “‘“received

and read by the clerk, acknowledged by the jury, and recorded . . . .”’” (People v.

Bonillas (1989) 48 Cal.3d 757, 770.)

“[W]hen the court is going to discharge a deliberating juror and replace that juror

with an alternate, the court should determine whether any verdicts have been reached

before discharging the juror. In such a case, the jury may render a partial verdict, all 12

jurors can then affirm the verdict(s), and the verdict(s) may be recorded pursuant to

section 1164.” (People v. Garcia, supra, 204 Cal.App.4th at p. 552; see also People v.

Thomas (1990) 218 Cal.App.3d 1477, 1485 [trial court did not err in receiving partial

verdict before replacing juror].) “The juror may then be discharged, an alternate seated to

replace the juror, and the newly constituted jury instructed to begin its deliberations anew

on any remaining charges and allegations.” (Garcia, at p. 553.)

37 The trial court followed this approved procedure. All 12 jurors were in court

when the verdict was read, all of the jury agreed it was their verdict, and all parties

declined to have them polled. There was no error in taking the partial verdict.

IX

DISPOSITION

We reverse as to both defendants their convictions for violating section 186.22,

subdivision (a). We remand to the superior court in order for it to modify the judgment

by striking the sentence on those convictions. The superior court shall also modify the

abstract of judgment and forward the modified copy to the Department of Corrections

and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI Acting P. J.

We concur:

KING J.

MILLER J.