Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA300012, George G. Lomeli, Judge.
Isaac E. Guillen; John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Pedro Alonso Armenta, appeals the judgment entered following his conviction, by jury trial, for first degree murder with special circumstances (while being an active participant in a street gang; by means of discharging a firearm from a motor vehicle), robbery (2 counts), and evading an officer, with arming, firearm use and gang enhancements (Pen. Code, §§ 187/190.2, subd. (a)(21) & (22), 211, 12022, 12022.53, 186.22; Veh. Code, § 2800.2). He was sentenced to state prison for a term of life without possibility of parole plus 57 years, 4 months to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
a. The murder.
On the night of March 13, 2006, Dylan Balderas was walking down Kingsley Drive when a gray GMC truck drove up. The truck had tinted windows and large tires with chrome rims. The truck stopped next to Balderas. The passenger window was down and the passenger asked in a loud voice, “Where are you from?” Balderas replied, “I’m not from anywhere. I don’t bang, ” and he approached the truck.
All further calendar references are to the year 2006 unless otherwise specified.
Balderas was not available to testify at trial because he had been deported. His preliminary hearing testimony was read to the jury.
The passenger and Balderas started talking. The passenger said he was “Grumpy from Mara Salvatrucha.” Then the driver interrupted, “saying something like ‘No, no, that’s not him, that’s not him.’ ” Balderas returned to the sidewalk and the truck drove a short distance, stopping near two people who were talking on the sidewalk. Balderas heard the passenger say, “Where are you from?” One of the two pedestrians approached the passenger side of the truck and said something ending with a word like “street.” The passenger yelled out “Mara Salvatrucha” and fired several shots. The truck drove off.
From photo arrays, Balderas identified defendant Armenta as the driver of the truck and Pedro Lopez as the passenger. Balderas testified Armenta had been wearing a light blue shirt with large numbers on the front. Shown a photograph of an athletic jersey, People’s exhibit No. 5, Balderas testified it looked like the shirt Armenta had been wearing. Lopez had been wearing a darker blue sweater with horizontal white lines across the chest. Shown People’s exhibit No. 1, photographs of a vehicle registered to Armenta, Balderas testified the photographs looked like the truck he had seen except the one he saw was a darker shade of gray.
An officer responding to the shooting scene found a Hispanic man with a gunshot wound lying face down and unresponsive. By the time paramedics transported the victim to USC Trauma Center, he was in cardiac arrest and he subsequently died. The victim was Lionel Guajardo, who had been a member of the Diamond Street gang.
b. The robberies.
On the afternoon of March 15, Romar Llorin was at work in Lakewood when he noticed a “light-colored S.U.V. with... rims” parked on the street near his office. Llorin testified the vehicle depicted in People’s exhibit No. 1 was the one he saw. The two occupants of the S.U.V. looked like Hispanic “gangsters” because of their shaved heads, baggy clothes and the way they carried themselves when they got out of the car.
A few minutes later, Llorin and his co-worker Steven De Los Reyes went outside for a cigarette break. They walked over to De Los Reyes’s car to use the lighter. Armenta and his companion from the S.U.V., subsequently identified as Nelson Morales, approached and began pushing them around. Morales held a gun to Llorin’s back. When Llorin turned around to say, “It’s cool, it’s cool, ” Morales said, “Don’t look at me.” Morales took Llorin’s watch, and Armenta took his wallet and cell phone. Armenta then went through De Los Reyes’s pockets, taking his keys, cell phone and wallet. The robbers returned to the S.U.V. and drove off.
By the time Armenta went to trial, Morales had already been convicted for the robbery.
Llorin and De Los Reyes returned to their office and called the police. An officer arrived within minutes and got suspect descriptions. Shortly thereafter Armenta was spotted driving the S.U.V. on Bellflower Boulevard. The ensuing car chase ended when the S.U.V. crashed. Armenta and Morales fled on foot. Armenta climbed over a metal railing and fell into a flood control channel, where he was apprehended. Some of the victims’ property was still in the S.U.V.
Llorin and De Los Reyes identified Armenta at an in field show-up shortly after he was arrested. At the preliminary hearing, Llorin again identified Armenta. He initially identified Pedro Lopez as the second robber, but then corrected himself. De Los Reyes also identified Armenta at the preliminary hearing while incorrectly identifying Lopez as the second robber. Like Llorin, De Los Reyes corrected his testimony by saying Morales’s photograph looked more like the second robber than Lopez did.
c. Armenta’s extra-judicial statement.
Armenta apparently injured himself jumping into the flood control channel. At the hospital following his arrest, he was being guarded by Long Beach Police Officer Christopher Martinez. The only thing Martinez knew about Armenta was that he was a robbery suspect.
Armenta started a conversation by asking Martinez to call his girlfriend or his mother to let them know where he was. Martinez said he wasn’t allowed to call anyone at that point. Armenta then asked how many years Martinez thought he would get “for what he did.” Martinez replied, “I really don’t know how long you will get.” Armenta then said, “How long do you think I will get if I killed someone, ” and “Do you think like 15 years to life or 25 to life?” When Martinez said he might be looking at a lot of years if he killed someone, Armenta replied, “No, I’m serious. How long do you think I would get for that type of crime?” When Martinez asked, “Why are we talking about how long you would get if you killed someone?”, Armenta replied, “I was just asking. I just wanted to know because I never knew, that’s all.”
d. The murder investigation.
Dylan Balderas, the witness to the March 13 shooting on Kingsley Drive, had been on probation for a grand theft conviction and he was arrested for a probation violation on March 15. Detective Frank Flores worked with the City Wide Gang Task Force, which focused in part on the Mara Salvatrucha gang. After interviewing Balderas and learning he had witnessed a shooting, Flores contacted Detective Supervisor Michael Pelletier. The detectives put together a photo array from which Balderas, saying he was 100 percent sure, identified Lopez as the gunman. Based on Balderas’s description of the S.U.V., Flores recalled that Armenta “was known to drive a similar-type vehicle.” DMV records showed the S.U.V. was registered to Armenta and his mother, and that it had recently been impounded by the Long Beach Police Department.
Flores characterized the truck as “a higher-end vehicle, higher-profile vehicle”, “a little bit unusual from the types of cars that I’m familiar with in the area.”
On March 16, Detective Pelletier put together a photo array which included Armenta’s picture and showed it to Balderas. Balderas picked out Armenta as looking like the driver, although he said he wasn’t as sure of the driver’s identification as he had been of the passenger’s. Shown a photograph of Armenta’s S.U.V., Balderas identified it as the same car he had seen during the shooting.
Balderas later identified Lopez at a live lineup. He did not identify anyone from a second lineup in which Nelson Morales, the second suspect in the robberies, participated. At the preliminary hearing, Balderas identified Lopez, but testified he did not see the driver although Armenta was sitting at counsel table at the time.
When the S.U.V. was searched, a blue athletic jersey with white numbers was found in the cargo area. At Lopez’s residence, police found a blue sweater with white horizontal lines. Armenta’s DNA was on the athletic jersey and Lopez’s DNA was on the sweater.
e. Gang evidence.
Detective Flores testified he had investigated more than 2, 000 crimes involving Mara Salvatrucha gang members. The block on Kingsley where the shooting occurred was claimed by the Hollywood Locos Clique of Mara Salvatrucha. Flores testified the primary activities of Mara Salvatrucha included murder, robbery, violent assaults, burglaries and thefts.
Since 1999, Flores had had multiple contacts with Armenta, who admitted he was a member of Mara Salvatrucha’s Hollywood Clique. At one point, Armenta had been served with a gang injunction aimed at Mara Salvatrucha activities. In Flores’s opinion, Armenta was an active member of Mara Salvatrucha in March 2006, as was Lopez. Flores identified Nelson Morales as a member of the Parkview Clique of Mara Salvatrucha. Presented with hypotheticals based on the facts of this case, Flores opined that both the shooting and the robberies had been carried out for the benefit of a criminal street gang.
2. Defense evidence.
Armenta presented an alibi defense to the murder charge.
Armenta’s mother-in-law testified her daughter and Armenta moved to Las Vegas in August 2005. She had visited her daughter in Las Vegas at Christmas and New Year’s in 2005, and Armenta was living there at the time.
George Conizales, who is married to Armenta’s wife’s cousin, lives in Las Vegas and he testified Armenta was living there in March 2006. On March 9, Conizales made plans with Armenta to drive to Los Angeles on March 15 for his father-in-law’s funeral mass, which was to be held on March 16. At the last minute, Conizales couldn’t leave on time, so he and Russell drove to Los Angeles separately. Conizales testified he had no knowledge of Armenta’s gang affiliation, and that he had never heard of Mara Salvatrucha. Conizales had a prior conviction for grand theft.
Maria Manuel, Armenta’s wife, testified they had been together for ten years and had three children. Before moving to Las Vegas, they had been living with Armenta’s mother, Doris Rojas, at 1022½ North Oxford in Los Angeles. They moved to Las Vegas in August 2005. On March 13, the date of the shooting, Armenta did not leave the house the entire day. He drove Manuel and the children to her mother’s house in Los Angeles on March 15. Armenta’s vehicle was the gray truck depicted in People’s exhibit No. 1.
Manuel testified she had no knowledge of Armenta’s gang involvement. She insisted he was not a gang member.
3. Proceedings below.
Initially Armenta and Lopez were jointly charged in this matter, but their cases were severed after Lopez was accused of soliciting the murder of the gang expert, Detective Flores.
CONTENTIONS
1. There was insufficient evidence to sustain the murder conviction.
2. The trial court erred by admitting evidence of Armenta’s hospital statement to Officer Martinez.
3. The trial court erred by allowing Lopez to be seated next to Armenta for a portion of the trial.
4. Armenta was denied the effective assistance of trial counsel.
5. There was insufficient evidence to sustain the gang enhancements.
6. The prosecutor committed misconduct during closing argument.
7. There was cumulative error.
8. The 25-year-to-life sentence for a firearm use enhancement was unconstitutional.
9. The motor vehicle special circumstance is unconstitutional.
10. The street gang special circumstance is unconstitutional.
DISCUSSION
1. There was sufficient evidence to sustain the murder conviction.
Armenta contends there was insufficient evidence to sustain his conviction for first degree murder. He argues the prosecution failed to prove he had been involved in the drive-by shooting. This claim is meritless.
a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to 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 – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies 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.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“ ‘An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.’ [Citation.] ‘Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].’ [Citation.]” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, ‘without a statement or analysis of the evidence, ... that the evidence is insufficient to support the judgment[] of conviction.’ [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient.” (Ibid.)
b. Discussion.
Armenta asserts the three items of evidence relied on by the prosecution to prove his role as the driver – Balderas’s testimony, the DNA results, and Armenta’s hospital statements – fell short of proving his involvement. We disagree.
(1) Balderas’s testimony.
Armenta argues, “Balderas testified that he initially told the police that appellant ‘looked like’ the driver of the vehicle, but ‘was not sure, ’ and that appellant’s vehicle ‘looked like’ the vehicle used in the murder of Guajardo. However, Balderas testified that the driver of the vehicle was not in the courtroom and that the vehicle... was darker than [shown in the photograph of] appellant’s vehicle. Therefore, Balderas testified that it was not appellant or his vehicle that were involved in the murder of Guajardo.” Armenta’s conclusion is unwarranted.
The credibility of an eyewitness identification is a matter for the jury to determine. (See People v. Rist (1976) 16 Cal.3d 211, 216 [“Confusion, or lack of clarity and positiveness in a witness’ identification testimony goes to the weight, not the admissibility of the testimony. [Citations.] Defendant’s identification was thus a question for the trier of fact and having been resolved on substantial evidence must be sustained on appeal”].) “It is a familiar rule that ‘In order to sustain a conviction the identification of the defendant need not be positive. [Citations.] Testimony that a defendant “resembles” the robber [citation] or “looks like the same man” [citation] has been held sufficient....’ ” (People v. Barranday (1971) 20 Cal.App.3d 16, 22; see In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1496-1497 [in-court identification was sufficient although victim was not 100% sure]; People v. Cooks (1983) 141 Cal.App.3d 224, 278 [identification evidence sufficient where witness was 90% sure]; People v. Wiest (1962) 205 Cal.App.2d 43, 45 [“qualification of identity and lack of positiveness” go to weight of evidence].)
Balderas testified that when he saw the photo array containing Lopez’s photograph he was “100 percent” certain Lopez had been the gunman. As to the photo array containing Armenta, Balderas testified he picked out Armenta’s photograph “but I told the detectives that I was not very sure but that he looked like him.” Asked, “Does this show the date and time... that you said number 5 looked like the driver?”, Balderas answered, “I was not sure.” But Balderas also testified he had accurately written on the photo array, “The one in photo number 5 looks like the driver that I saw. I feel that is him, but I am not so sure as to the one who shot.” (Italics added.)
The jury could have reasonably concluded Balderas did identify Armenta in the photo array. That his identification of Armenta was less certain than his identification of Lopez was understandable because Balderas had seen Lopez before. Balderas testified he had seen Lopez a couple of times prior to the shooting, whereas Armenta was a total stranger. A reasonable jury could have concluded this explained why Balderas was less certain about his identification of Armenta. The fact Balderas failed to identify Armenta at the preliminary hearing was a factor for the jury to consider in determining the accuracy of Balderas’s photo array identification.
The jury could have also reasonably concluded Balderas sufficiently identified Armenta’s vehicle. Shown People’s exhibit No. 1 at the preliminary hearing, Balderas was asked, “Does that appear similar to the car that you saw, ” and he replied, “Looks like it, but it was darker, ” “[i]t was a darker gray.” However, Balderas also testified he had accurately written the following note during the police interview: “I was shown a photograph of a gray car and I am sure that it’s the same make of car that I saw. The color, the tires, the rims, and everything. It’s the same car.” (Italics added.)
(2) The DNA results.
After Armenta was arrested for the robberies, a blue athletic jersey with large white numbers on it was found inside his vehicle and his DNA was found on the jersey. According to Balderas, the driver had been wearing a blue shirt with large white numbers on it. Shown a photograph of the jersey found in Armenta’s car, Balderas testified he recognized “[t]he color and the numbers. I don’t know what numbers it had, but it’s the same size.” Armenta argues this evidence was insufficient because “Balderas could not describe the actual numbers or the size of the numbers, only that there were large white numbers on the jersey.... Because there was nothing specific about the jersey, other than the colors, it cannot be said that it was the same jersey used in the murder of Guajardo.”
But the jury did not have to rely on the jersey alone to find Armenta had been the driver. The evidence about the jersey supplemented Balderas’s identification of Armenta as the driver and his car as the drive-by vehicle. By corroborating that evidence, the DNA evidence further implicated Armenta and his car as having been involved in the drive-by shooting.
(3) Armenta’s hospital statement.
Armenta argues his statement to Officer Martinez in the hospital was too ambiguous to have constituted substantial evidence of guilt. He asserts his question, “[H]ow long do you think I will get if I killed someone, ” was “not only vague, but it is unclear as to what appellant was talking about. There are several different scenarios that appellant could have been discussing. He could have been wondering how much time he could have received if someone was killed during the robbery, or how much time he would [have] received if someone was killed as he evaded arrest while he was driving recklessly, or he could have just been curious to know what kind of time a murder charge carried, period.”
These are indeed possible interpretations of Armenta’s question, although not very plausible ones. More plausibly, Armenta was referring to his role in the drive-by shooting two days earlier and his question demonstrated a consciousness of guilt about the murder. A reasonable jury could have reached this conclusion.
(4) Alibi witnesses.
Armenta also argues there was insufficient evidence of his guilt because he presented alibi witnesses who testified he was living in Las Vegas at the time of the murder. But these witnesses were all relatives and the jury would have been justified in taking those relationships into account in assessing their credibility. Furthermore, the crucial witness was Armenta’s wife, who testified he was in Las Vegas on the day of the murder, and her credibility was damaged because, despite having been in a relationship with him for 10 years, she claimed not to know anything about his gang activities. A reasonable jury could have rejected the alibi evidence.
In sum, we agree with the Attorney General’s argument on this issue: “[Armenta] was tied to the murder by Balderas’s out-of-court selection of his photograph, his ownership interest in the car identified by Balderas, his DNA on the jersey found in his car and identified by Balderas, and his questions regarding which sentence he might get for murder even before he was arrested for murder. Based upon this evidence, it was reasonable for the jury to conclude that appellant was the driver of the vehicle from which the fatal shot was fired.”
2. Trial court properly admitted Armenta’s hospital statements.
Armenta contends the trial court erred by admitting the statements he made to Officer Martinez in the hospital because this evidence was more prejudicial than probative under Evidence Code section 352. This claim is meritless.
“ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is... “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958; see People v. Karis (1988) 46 Cal.3d 612, 638 [“ ‘ “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual” ’ ”].)
It was for the jury to weigh the ambiguity inherent in Armenta’s hospital statements, as well as the reliability of Martinez’s written record of those statements, which he made some hours later. As the Attorney General notes, a strikingly similar situation arose in People v. Guerra (2006) 37 Cal.4th 1067, where the courtroom bailiff testified about a conversation he had with the defendant. When the bailiff remarked he had been impressed by the cities he toured in Guatemala, the defendant agreed the cities were nice and then said, “ ‘In my country, I do this, no problem, I go home tonight.’ ” (Id. at p. 1122.) The trial court ruled that although defendant’s statement was ambiguous, it “was nonetheless admissible because what defendant was referring to when he said ‘I do this’ is for the trier of fact to determine.” (Ibid.) Guerra rejected defendant’s claim the statement should have been excluded because the meaning of “ ‘I do this’ was ambiguous. His claim fails... because it ‘concerns only the weight of this evidence, not its admissibility, which does not require complete unambiguity.’ [Citation.]” (Ibid.)
In his supplemental brief, Armenta argues the trial court erred by ruling his hospital statement was admissible as an admission, citing People v. Karis, supra, 46 Cal.3d 612. But in Karis the defendant’s statement, that he would not hesitate to eliminate a witness if he committed a crime, had been made before the crime was committed. (See id. at p. 635 [“although there may be merit in defendant’s argument that a threat made prior to a crime may not be considered an ‘admission’ unless a specific crime is contemplated and intended, we need not reach this question”].) Here, of course, Armenta’s statement followed the crime to which it arguably related.
Armenta also argues his hospital statement should not have been admitted because “Evidence Code section 1101, subdivision (a) precludes admission into evidence of prior bad acts.... Appellant’s questions about how much time he would get if he killed someone constituted evidence of criminal propensity.” Not so. Armenta’s questions indicated his consciousness of guilt as to this crime.
The trial court did not err by admitting Armenta’s hospital statements.
3. Trial court did not err by having Lopez present during the reading of Balderas’s preliminary hearing testimony.
Armenta contends the trial court erred by having Pedro Lopez brought into the courtroom for the reading of Balderas’s preliminary hearing testimony, during which Balderas identified Lopez as the gunman and testified he did not see the driver in the courtroom. Armenta argues having Lopez there was unnecessary and prejudicial. This claim is meritless.
a. Factual background.
Armenta’s case was severed from Lopez’s before trial because Lopez allegedly solicited the murder of Detective Flores, the gang expert. Armenta was tried first and Lopez’s trial was to proceed immediately after the conclusion of Armenta’s trial. During the preliminary hearing, held prior to the cases being severed, Balderas identified Lopez as the gunman and testified he did not see the driver in the courtroom.
At trial, the prosecutor wanted to have Lopez sitting at counsel table during the reading of Balderas’s preliminary hearing testimony. When Armenta objected to this procedure as both unnecessary and prejudicial, the prosecutor argued, “As far as relevance, I think the jury instruction on the issue of witness identification talks about one of the factors as being a witness’s ability to identify other people who were involved in the crime..., and during his testimony, he does... identify defendant Lopez, and I think there is a great deal of probative value to that.” Armenta argued that having Lopez sit at counsel table would “damage [his] efforts in separating himself from Mr. Lopez in the trial.” The trial court rejected this argument, reasoning Armenta was already protected from any prejudice flowing from the allegation Lopez had solicited Flores’s murder because their cases had been severed.
b. Discussion.
Armenta argues: “The combined effect of reading the former testimony of an unavailable witness by a district attorney law clerk, and the presence of Mr. Lopez in the courtroom, lent an unfair aura of reliability [to] an otherwise weak eyewitness identification case. The jury could not view Balderas or judge his demeanor or credibility while testifying. Mr. Lopez’s presence thus improperly reinforced the reliability of [Balderas’s] identification.” We are not persuaded. We do not see how Lopez’s presence improperly reinforced the reliability of Balderas’s identification of Armenta. It appears this method of presenting the evidence was just an attempt to mimic, so far as possible, the original conditions of Balderas’s preliminary hearing testimony.
Armenta has not shown that the trial court erred by having Lopez brought into court for the reading of Balderas’s preliminary hearing testimony.
4. There was no ineffective assistance of counsel.
Armenta contends he was denied effective assistance of trial counsel. This claim is meritless.
a. Legal principles.
“To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney, and that counsel’s performance was prejudicial in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.] If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient. [Citation.] If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 783-784.)
“[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” (Strickland v. Washington (1984) 466 U.S. 668, 693.) The defendant must show there is a “reasonable probability” that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” (Id. at p. 694; People v. Berryman (1993) 6 Cal.4th 1048, 1081, disapproved on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The deficient performance must render the result of the trial unreliable or the proceedings fundamentally unfair. (Lockhart v. Fretwell (1993) 506 U.S. 364, 372 [122 L.Ed.2d 180].)
“Trial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel.” (People v. Jones (1979) 96 Cal.App.3d 820, 827; accord People v. Torrez (1995) 31 Cal.App.4th 1084, 1091 [“[C]ounsel is not required to make futile motions or to indulge in idle acts to appear competent.”].)
b. Failing to ask for complete severance.
While acknowledging defense counsel successfully moved to sever his case from Lopez’s, Armenta complains counsel never moved to sever the robbery case from the murder case. Armenta argues this failure was prejudicial “because the murder was a weak circumstantial evidence, identification case, while the [robbery] was a strong case because appellant and Morales were arrested and identified within minutes of leaving the scene.”
(1) Legal principles.
Section 954 provides, in pertinent part: “An accusatory pleading may charge two or more different offenses connected together in their commission... under separate counts, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.... ” “The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” (People v. Bean (1988) 46 Cal.3d 919, 938.)
“ ‘The law prefers consolidation of charges. [Citation.] Where... joinder is proper under section 954.... [a defendant] can predicate error in the denial of [a severance] motion only on a clear showing of potential prejudice. [Citations.] We review the denial of defendant’s motion for an abuse of discretion, that is, whether the denial fell “ ‘outside the bounds of reason.’ ” [Citations.]’ [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 574.)
“The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial. Thus, refusal to sever may be an abuse of discretion where ‘(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all; and (4) any one of the charges carries the death penalty.’ [Citation.]” (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) “Cross-admissibility of evidence is sufficient but not necessary to deny severance.” (People v. Manriquez, supra, 37 Cal.4th at p. 574.)
(2) Discussion.
Joinder was proper under section 954 because evidence of the circumstances surrounding the robbery was cross-admissible to show Armenta’s identity and the identity of his car in the murder case. (See People v. Soper (2009) 45 Cal.4th 759, 774-775 [“If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.”]; see also People v. Cunningham (2001) 25 Cal.4th 926, 985 [“complete cross-admissibility is not necessary to justify the joinder of counts”].)
As Armenta concedes, Balderas told police the vehicle used in the robbery looked like the vehicle used in the drive-by shooting. The evidence stemming from the robbery case, including Armenta’s ownership interest in the vehicle, his presence in the driver’s seat, and the athletic jersey found in the back which Balderas identified as having been worn by the driver, was cross-admissible in the murder case. Therefore, even had defense counsel asked for complete severance, the motion would have been properly denied by the trial court.
c. Failing to obtain medical records to demonstrate Armenta’s hospital statements were involuntary.
Armenta contends that, in order to bolster the argument his hospital statements to Officer Martinez should have been excluded as involuntary, defense counsel should have obtained the associated medical records because he “was in a hospital bed and presumably under medication when he” spoke to Martinez. This claim fails because there is no showing of prejudice.
In the trial court, Armenta tried to get his hospital statements suppressed as involuntary on the theory he must have been disoriented from medication. The trial court refused to exclude the evidence because there was nothing in the record to show Armenta “was under sedation of any sort, or was... being medicated to [the] point where he was not familiar with his surroundings, or in any way not aware of the situation.” The state of the record has not changed since the trial court made that ruling, and thus there is no showing of any prejudice flowing from defense counsel’s failure to obtain the hospital records. “If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.” (People v. Mayfield, supra, 14 Cal.4th at p. 784.)
d. Failure to object to the Lopez DNA results.
Armenta contends defense counsel should have objected to evidence of the DNA tests done on Lopez’s sweater as irrelevant, misleading, and more prejudicial than probative. He argues the evidence should have been excluded because Balderas positively identified Lopez from a photo array, at a live lineup, and again at the preliminary hearing. This claim is meritless.
The proposed evidentiary objection would have been properly denied by the trial court. The evidence was relevant because the accuracy of Balderas’s identification of Lopez as the gunman, which was corroborated by the DNA testing of Lopez’s sweater, tended to strengthen the credibility of Balderas’s initial identification of Armenta as the driver. This is particularly true because Balderas gave police physical descriptions of both the sweater worn by the gunman and the shirt worn by the driver.
e. Failure to obtain authentication of probation records.
Defense counsel tried to get into evidence certain Los Angeles County Probation Department records allegedly showing Armenta had requested a transfer to Las Vegas in September 2005. The trial court rejected the evidence because there was nothing from the probation department authenticating the proffered documents. Armenta now contends defense counsel was ineffective for not having a probation officer testify in order to authenticate the documents.
The failure to get the probation records admitted could not have prejudiced Armenta. Regardless of when Armenta first moved to Las Vegas, what mattered was where he had been on the day of the murder and, as to that, his wife testified he had been at their Las Vegas apartment the entire day. Admission of the probation records would not have altered the outcome of the trial.
f. Failure to respond to prosecutor during closing argument.
Armenta complains that in the face of the prosecutor’s challenge during closing argument to provide an innocent explanation for Armenta’s hospital statements, defense counsel simply “avoided the question.” This claim is meritless.
The prosecutor argued to the jury: “[A]nd then last of all, the statement to Officer Martinez, ‘How much time would I get if I killed somebody?’ [¶] And I’ll pose this question to the defense attorney and we’ll see how he can answer it. If the defendant, Pedro Armenta, had nothing to do with that murder two days ago, why ask about that? [¶] What would be the reason for anybody to be asking, first of all, ‘How much time am I getting for what I just did, ’ and then following that up with ‘How much time would I get if I killed somebody, ’... [if] he had not been involved in the murder?”
It appears defense counsel made a reasonable tactical decision to challenge the accuracy of Martinez’s report of Armenta’s statements, rather than trying to convince the jury the statements had an “innocent” explanation. As the Attorney General argues, defense counsel “stressed that an out-of-court admission should be viewed with caution, that Officer Martinez’s memory was so poor that he had to refer to a written report during his testimony, that Officer Martinez did not write the report until after the conversation, that Officer Martinez’s report was inaccurate, and that Officer Martinez was trying to help the prosecution by failing to acknowledge that the report was a paraphrasing of appellant’s statements.”
“Innocent” in the sense that they referred either to an entirely hypothetical situation Armenta just happened to be interested in, or to the March 15 robbery and police chase rather than to the March 13 murder.
Given the difficulty of explaining away Armenta’s hospital statements, it appears defense counsel reasonably decided to instead contest the accuracy of those statements as reported by Officer Martinez. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1215 [deference is shown to defense counsel’s tactical choices].)
In sum, Armenta has failed to demonstrate he was subjected to the ineffective assistance of counsel.
5. There was sufficient evidence to sustain the gang enhancements.
Armenta contends there was insufficient evidence to sustain imposition of criminal street gang enhancements under section 186.22, subdivision (b)(1). This claim is meritless.
a. Legal principles.
As we explained in People v. Duran (2002) 97 Cal.App.4th 1448: “Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]” (Id. at p. 1457.) The gang statute then requires two further elements: evidence of “a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, ” and evidence the felony was committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (§ 186.22, subd. (b)(1).)
b. Discussion.
(1) The gang enhancement for count 1.
Armenta argues the gang enhancement imposed in connection with count 1 must be stricken because there is no substantial evidence he committed the murder with the requisite specific intent. Citing Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, he asserts there must be evidence of an intent to assist in the gang’s commission of some felony other than the charged crimes. But, as Armenta acknowledges, the Ninth Circuit’s interpretation of section 186.22 has been uniformly rejected by California case law. “In Garcia, the Ninth Circuit found insufficient evidence of specific intent to promote, further, or assist in other criminal conduct by the defendant’s gang. We disagree with Garcia’s interpretation of the California statute, and decline to follow it. [Citations.] By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members, ’ rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)” (People v. Romero (2006) 140 Cal.App.4th 15, 19; accord People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354; People v. Hill (2006) 142 Cal.App.4th 770, 774.)
The Ninth Circuit recently acknowledged this slippage by certifying the following question to our Supreme Court: “Does California’s criminal street gang enhancement statute, in particular the element of ‘specific intent to promote, further, or assist in any criminal conduct by gang members’ in California Penal Code section 186.22(b)(1), require proof that the defendant specifically intended to promote, further, or assist in other criminal gang activity, apart from the offense of conviction?” (Emery v. Clark (9th Cir. 2010) 604 F.3d 1102, 1103, fn. omitted.)
(2) The gang enhancement for counts 2, 3 and 4.
Armenta argues the gang enhancements imposed in connection with counts 2, 3 and 4 must be reversed because there was no evidence to suggest the robberies had been carried out for the benefit of his gang. Armenta notes the gang expert “acknowledged that the crimes did not occur within the gang’s claimed territory, nor were the victims rival gang members.” However, Detective Flores also testified “[o]ne of the primary activities of Mara Salvatrucha is street robberies” because “[i]t’s an instant way to gather money, money that goes to benefit the gang in the purchase of firearms to protect the territory, the purchase of narcotics to sell, ... to pay for locations where they may be stashing weapons, to pay for other members that may be incarcerated, to help support members within the gang financially.” “The fact that it’s outside of the gang territory – the territory doesn’t restrict their activities, it just shows their home base of activities. [¶] The fact that they’re going outside these territories only shows to me... gangs have obviously evolved over the years, they understand that within certain territories, police have grown wise to their activities, there’s a lot of enforcement, ... so in order to more easily... get away with their activities, they go to outlying areas to commit their robberies... to have a higher chance of getting away with it.”
Citing People v. Albarran (2007) 149 Cal.App.4th 214, 227, Armenta argues the gang expert’s testimony was insufficient to show the robbery had been gang-related. But Albarran is inapposite because there the gang expert basically “testified he did not know why the shooting occurred.” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1333.) In Albarran, the defendant and a companion fired shots at a house where a party was going on. There was no evidence the gunmen made themselves known by gang signs, announcements or graffiti, and the expert “conceded... he did not know the exact reason for the shooting....” (People v. Albarran, supra, at p. 220.) But Detective Flores testified street robberies were one of the gang’s primary activities because of the need to finance the purchase of guns and drugs, and to provide general financial support to the gang members. Flores also testified the robberies had been committed for the benefit of Armenta’s gang.
Moreover, this element of the gang enhancement only required evidence of “a felony committed for the benefit of, at the direction of, or in association with any criminal street gang....” (§ 186.22, subd. (b)(1).) There was sufficient evidence Armenta had been acting “in association with” his gang because he acted in combination with Morales, a fellow gang member. (See People v. Leon (2008) 161 Cal.App.4th 149, 163 [where People presented evidence defendant committed crimes in association with fellow gang member, there was sufficient evidence defendant “committed the offenses ‘in association with any criminal street gang’ ”]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [“the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members”]; see also People v. Martinez, supra, 158 Cal.App.4th at p. 1332 [“Defendant, who admitted membership in King Kobras, committed the crimes with Garcia, another admitted member. That Garcia was also defendant’s brother-in-law does not cancel out that membership.”].)
There was sufficient evidence to sustain the gang enhancements.
6. There was no prosecutorial misconduct during closing argument.
Armenta contends the prosecutor committed misconduct during closing argument by misstating the evidence. This claim is meritless.
a. Legal principles.
“ ‘ “[T]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom.” ’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 752.) “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
b. Discussion.
Armenta argues that, while discussing the hospital statements, the prosecutor misstated the evidence by suggesting Armenta’s questions about prison time related to the drive-by shooting. Not so. The prosecutor’s jury argument merely relied on the entirely legitimate inference, based on Officer Martinez’s testimony, that Armenta was referring to Guarjardo’s murder when he asked about possible penalties. There was no prosecutorial misconduct.
7. There was no cumulative error.
Armenta contends that, even if harmless individually, the cumulative effect of these claimed trial errors mandates reversal of his convictions. Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
8. The firearm use enhancement was not unconstitutional.
Armenta contends the 25-year-to-life sentence for vicarious firearm use (§ 12022.53, subds. (d) & (e)(1)) was unconstitutional because it violated equal protection and due process. This claim is meritless.
a. The enhancement statute.
“Enacted in 1997 as part of the so-called 10-20-life bill (Assem. Bill No. 4 (1997-1998 Reg. Sess.)), section 12022.53 imposes sentence enhancements for firearm use applicable to certain enumerated felonies. [Citations.] These enhancements vary in length, corresponding to various uses of a firearm.” (People v. Garcia (2002) 28 Cal.4th 1166, 1171, fn. omitted.) “Section 12022.53, subdivision (e)(1), imposes vicarious liability under this section on aiders and abettors who commit crimes in participation of a criminal street gang. [Citation.]” (Ibid.)
Subdivision (e)(1) of section 12022.53 provides: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” “Section 12022.53, subdivisions (d) and (e)(1)(B) when read together require the trial court to impose a consecutive 25-years-to-life sentence enhancement when a defendant is convicted of murder for the benefit of a criminal street gang and ‘[a]ny principal in the offense’ ‘personally and intentionally discharges a firearm and causes... death, to any person other than an accomplice.’ (Italics added.) Under this sentencing regime an aider and abettor who is found guilty of murder is subject to the 25 years to life enhancement even though he or she did not personally and intentionally discharge a firearm causing death if the murder was committed for the benefit of a criminal street gang and ‘any principal’ in the offense personally and intentionally discharged a firearm causing death. In all other killings subject to section 12022.53, subdivision (d) – that is, killings not for the benefit of a criminal street gang – a principal, including an aider and abettor, is only subject to the 25-year enhancement if he or she personally and intentionally discharged a firearm causing death.” (People v. Hernandez (2005) 134 Cal.App.4th 474, 480, fn. omitted.)
b. Equal protection claim.
Armenta contends this sentence violates equal protection because “[a] person who aids and abets the personal use or discharge of firearm in a gang case is similarly situated to the aider and abettor in a non-gang case. Whether or not the crime is committed for the benefit of a street gang, a person who aids and abets in the personal discharge of a firearm commits the same acts in each case. A drive-by shooting is a perfect example. The driver commits the identical acts, whether or not the drive-by shooting is gang-related.”
“ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) “Under the equal protection clause, we do not inquire ‘whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ [Citations.]” (Id. at pp. 1199-1200.) “If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
Armenta’s precise claim was addressed and rejected by People v. Gonzales (2001) 87 Cal.App.4th 1, 13: “Defendants’ arguments fail to establish that they are similarly situated to other aider and abettors. Steven argues that an aider and abettor of a gang member is similarly situated to aiders and abettors of firearm users who are not members of a criminal street gang. We do not agree. [¶] Unlike other aiders and abettors who have encouraged the commission of a target offense resulting in a murder, defendants committed their crime with the purpose of promoting and furthering their street gang in its criminal conduct.... [¶] Defendants were not similarly situated with other aiders and abettors, and on that basis, their equal protection argument fails.” As another court noted, while rejecting a claim section 12022.53 violates equal protection by discriminating between aiding street gangs and aiding other dangerous criminal groups, such as drug cartels or terrorist organizations, “It is beyond dispute the state has a legitimate interest in suppressing criminal street gangs.” (People v. Hernandez, supra, 134 Cal.App.4th at p. 481.) We agree with the reasoning of these cases.
There was no equal protection violation.
c. Due process claim.
Armenta contends section 12022.53 violates due process “by authorizing drastically increased sentences for an aider and abettor who is convicted of first degree murder as the natural and probable consequences of a simple assault, without any requirement that the jury find the aider and abettor knew or intended that the homicide be committed by the use or discharge of a firearm.”
This same claim was rejected by People v. Gonzales, supra, 87 Cal.App.4th at pages 13 through 15, and People v. Hernandez, supra, 134 Cal.App.4th at page 483. As Gonzales explained: “[T]his statute is expressly drafted to extend the enhancement for gun use in any enumerated serious felony to gang members who aid and abet that offense in furtherance of the objectives of a criminal street gang. Section 12022.53, subdivision (e) is precisely the clear expression of legislative intent to extend an enhanced penalty to aiders and abettors.... [¶] [Defendant’s] argument is contrary to aider and abettor jurisprudence in California. As we have seen, the only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” (People v. Gonzales, supra, 87 Cal.App.4th at p. 15.)
There was no due process violation.
9. Motor vehicle special circumstance is not unconstitutional.
Armenta contends the motor vehicle special circumstance (§ 190.2, subd. (a)(21)) is unconstitutional. This claim is meritless.
Section 190.2, subdivision (a), provides: “The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [¶]... [¶] (21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, ‘motor vehicle’ means any vehicle as defined in Section 415 of the Vehicle Code.”
Armenta asserts this statute violates due process on its face and the Eighth Amendment because a defendant’s mere presence in a vehicle while aiding and abetting a murder is not rationally related to the purpose of the statute. He complains the statute could transform what would otherwise be a second degree murder into a death eligible offense merely because the killing was done from a car. Armenta also asserts the statute violates due process as applied because it elevates a first degree murder to special circumstances murder without requiring a finding of premeditation and deliberation.
People v. Rodriguez (1998) 66 Cal.App.4th 157, a case with whose reasoning we agree, rejected these same claims. Rodriguez concluded the statute is a rational response to the well-known scourge of drive-by shootings: “ ‘The Legislative materials, and common knowledge, amply support a judgment that drive-by murders have become a widespread threat to public safety, and a statutory provision directed at deterring such conduct is fully within the power of the Legislature and the voters to adopt.’ ” (Id. at p. 172.)
Regarding the “death eligible” Eighth Amendment claim, Rodriguez pointed out: “We need not resolve this precise issue, because the People did not seek death and defendant was not sentenced to death.” (People v. Rodriguez, supra, 66 Cal.App.4th at p. 165.) Rodriguez added that the claim was, in any event, meritless: “Defendant argues, in effect, that a sentence of LWOP for (what could theoretically have been) an unpremeditated murder is excessive under the Eighth Amendment. [¶] The cases do not support this contention [citing Harmelin v. Michigan (1991) 501 U.S. 957 (mandatory life without possibility of parole sentence for possessing 650 grams of cocaine did not violate Eighth Amendment)].” Id. at p. 173, fn. omitted.)
As for Armenta’s assertion the statute “as applied in this case” violates due process, the evidence shows Armenta did act with premeditation and deliberation. This was a classic drive-by shooting and Armenta played a crucial role by both driving and picking out the victim: the evidence showed that after initially driving up to Balderas, Armenta interrupted Lopez’s casual conversation with Balderas by saying “That’s not him, ” and then drove up to the murder victim so Lopez could shoot him.
Imposition of the motor vehicle special circumstance sentence was not unconstitutional in this case.
10. The gang special circumstance is not unconstitutional.
Armenta contends the criminal street gang special circumstance (§ 190.2, subd. (a)(22)) is unconstitutional. This claim is meritless.
Section 190.2, subdivision (a), provides: “The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [¶]... [¶] (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.”
Armenta asserts the statute is unconstitutionally vague because the jury was instructed that active participation “means that the person must have a relationship with the criminal street gang that is more than in name only, passive, inactive or purely technical.” (CALJIC No. 8.81.22.) Armenta argues this language “fail[ed] to give [him] adequate notice of the conduct triggering punishment for the special circumstance....” Armenta also argues this language fails to satisfy the due process concept of personal guilt as articulated by Scales v. United States (1961) 367 U.S. 203 [81 S.Ct. 1469].
Armenta also argues the statute fails to sufficiently narrow the class of death eligible defendants. But, as noted ante in connection with Armenta’s attack on the motor vehicle special circumstance, this issue need not be addressed because Armenta was sentenced to life without possibility of parole.
As Armenta acknowledges, however, these arguments have already been rejected by People v. Castenada (2000) 23 Cal.4th 743, which held, with regard to the gang felony offense (§ 186.22, subd. (a)), that “active participation” does not require proof the defendant devotes a substantial part of his time and efforts to the gang, but only that the defendant’s participation have been “more than nominal or passive.” (People v. Castenada, supra, at p. 747.) We are, of course, bound by the decision in Castenada. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)
Imposition of the gang special circumstance sentence was not unconstitutional in this case.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.