People v. Castano

Full title: THE PEOPLE, Plaintiff and Respondent, v. DANIEL CASTANO, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Jun 27, 2017

A145447 (Cal. Ct. App. Jun. 27, 2017)

Opinion

A145447

06-27-2017

THE PEOPLE, Plaintiff and Respondent, v. DANIEL CASTANO, Defendant and Appellant.

Jones, P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 51402718)

A jury convicted Daniel Castano of murder (Pen. Code, § 187, subd. (a)),¹ and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found Castano committed murder for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)(1)). The jury further found Castano personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d)). The trial court sentenced Castano to a prison term of 60 years to life.

1 All undesignated statutory references are to the Penal Code.

Castano appeals. He contends we should reverse both his gang participation conviction and the gang enhancement. First, Castano argues there was insufficient evidence one of the "primary activities" of the gang was the commission of offenses listed in section 186.22, subdivision (e). Second, based on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), Castano contends the evidence used to prove a "pattern of criminal activity" was inadmissible. Third, Castano argues we should reverse the gang enhancement because the court failed to orally instruct the jury on its elements. Fourth, Castano argues the court committed instructional error when it defined a "pattern of criminal gang activity" and the "primary activities" of the gang as including an offense not enumerated in section 186.22, subdivision (e). Fifth, Castano contends the court erred in sentencing him to a consecutive 10-year term for the gang enhancement.

We affirm in part and reverse in part. The Attorney General concedes the sentencing error. We agree, and will reverse the court's imposition of a 10-year consecutive term for the gang enhancement. Instead, the court should have imposed a 15-year minimum parole eligibility period. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged Castano with murder (§ 187, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The information also alleged conduct warranting enhanced punishment for gang related conduct (§ 186.22, subd. (b)(1)), and for personal and intentional discharge of a firearm (§ 12022.53, subds. (b), (c), (d) & (e)(1)).

A. Prosecution Evidence

Fernando G., a 17-year old, was shot to death while sitting in the driver's seat of a parked SUV close to an elementary school in Bay Point.² Maria G. was also in the vehicle sitting behind the driver's seat. The shooter was accompanied by a second person.

2 To protect the privacy interests of the victim, witnesses, and persons who may have been juveniles, we refer to them by first name and last initial. (Cal. Rule of Court, rule 8.90(b).)

At the scene, and at the sheriff's department, Maria G. identified the shooter as Castano, also known as "Dumbo." Maria G. knew Castano since elementary school. She saw two males approach the SUV on foot. Castano was wearing a black T-shirt, and plaid shorts, with white and black stripes. Maria G. did not recognize the second person, but she described him as Latino or "Mexican," with long or dark hair.

As they approached the SUV, Maria G. heard Castano say to the other male "That's him." Maria G. said to Fernando G. "Look who's coming." Fernando G. said "Daniel," and "oh," or "I see him," and started to unbuckle his seat belt to get out of the SUV. Then Maria G. saw Castano reach through the passenger side window, point a gun at Fernando G., and pull the trigger about five times. Castano and the other male fled on foot after the shooting.

Video recordings from the elementary school contained images of two individuals walking on Marina Road whose clothing matched the two males described by Maria G. One subject was wearing a white T-shirt, and the second subject was wearing a black shirt, black-and-white shorts, and a dark colored hat with a red bill or brim.

On the day of the shooting, Yanely M., who knew Castano, was walking towards the elementary school. While she was walking up the stairs from Marina Road to the school, someone called her name. She turned and saw Castano. Yanely M. could not tell if Castano was alone or with someone else. About five minutes later, as Yanely M. was picking up her niece, people started screaming, and a teacher told Yanely M. to get inside the classroom. The school was locked down.

Yanely M. testified at trial she did not hear gunshots or see Castano running. However, Yanely M. previously told Castano's sister that Castano was with another person, whom Yanely M. did not recognize, but whom she described as a young, Latin man with long hair and a red hat. Yanely M. said she saw the two of them running after she heard shots, and she said one of them dropped his hat, and went back to pick it up.

Over three months after the shooting, police arrested Castano while he was trying to flee a residence in Antioch. When apprehended, Castano said: "I'm the one you're looking for. I'm sorry. . . . I give up." A number of other individuals were also detained at the residence, including Jonathan B. and Sean Dunne. A photograph of Sean Dunne showed him with tattoos of an "X" and a "4," which represents the number 14, a number associated with Norteno street gangs.

1. Castano's Victim Was Rumored to Have Killed Kevin R.

Fernando G., the victim of the shooting, was also known as Boo-Boo. Fernando G. used to live in the Shore Acres neighborhood, but his family moved to Martinez about six months before he was shot. Maria G., who was in the SUV with Fernando G., was in a relationship with Garry W. Fernando G. and Garry W. were close friends. Garry W. was in juvenile hall at the time of the shooting. On the day he was killed, Fernando G.'s mother drove him from Martinez to the Shore Acres neighborhood so that Fernando G. could check on Garry W.'s mother. Fernando G. was frequently in the Shore Acres neighborhood at Garry W.'s house.

Fernando G. had a Shore Acres tattoo on his chest. The Shore Acres Boys were rivals to the Varrio North Side, or "VNS" gang in the Shore Acres neighborhood. According to Concord Police Department Corporal Michael Kindorf, Garry W. was a member of the Shore Acres Boys from 2010 to 2012.

Natalie C., Castano's sister, told an officer the shooting of Fernando G. stemmed from the murder of Kevin R. over a year earlier, and Castano "had never let that go." Kevin R., the victim in the prior shooting, was also known as K-Low. At a party, Kevin R. got into an argument with Fernando G., and Kevin R. was shot and killed. At the same party, Fernando G. suffered a gunshot wound to his upper left arm.

There were rumors that Fernando G. shot Kevin R., but also that Alex or Alejandro H. accidentally shot Kevin R. while attempting to shoot Fernando G. According to Corporal Kindorf, it "was really beyond rumor, it was really belief, that Fernando [G.] had killed Kevin [R.]." There was testimony regarding high school fights involving Fernando G. and Garry W. on one side, and Kevin R., Jonathan B, and Braulio L. on the other. Corporal Kindorf identified photographs of Kevin R., including a photograph of Kevin R. with Alex H., where Kevin R. displayed Norteno or VNS gang signs. After the murder of Kevin R., there was frequent gang graffiti of "RIP K-Low" at his high school.

Castano's mother said Castano and Kevin R. were very close friends. When Kevin R. was murdered, Castano was devastated, and "hit rock bottom." Castano told his mother if he ever found out who killed Kevin R., he was going to "whoop their ass."

2. Castano's Ties to VNS

At trial, Maria G. refused to identify Castano as the shooter because someone shot at her house on the morning of her testimony, and she had received threats. She was afraid of VNS, a gang in the Shore Acres neighborhood. She knew Castano associated with Nortenos or Northerners, and members of VNS. Maria G. said Castano was friends with Johnny B., whom Maria G. believed was a member of VNS.

Castano's mother did not approve of Castano's friends, whom she said were Nortenos, and who " 'wore a lot of red.' " Castano's mother described an incident where one of Castano's friends, Johnny B., treated her with disrespect. Castano's mother told an officer she found knives in Castano's bedroom, and, on one occasion, a firearm. However, at trial, Castano's mother denied finding a firearm.

A search of Castano's bedroom after the shooting revealed four, live .38-caliber rounds of ammunition under the bed, and a knife. An officer found a number of letters sent from "Skreech" to "Dumbo." One of the letters was a "kite," which is a condensed, small letter normally passed around in jail. After the word "Skreech" appeared the letters "V-N" and an "S with an X over it." Corporal Kindorf believed "Skreech" was Tomas M., whose name appeared on the envelopes of some of the letters. The letters were sent from juvenile hall and other juvenile facilities. Tomas M. was the suspect in a number of attacks on Sureno gang members in Concord. Tomas M. was also in the hallway of the courthouse on the first day Maria G. gave testimony. One letter recommended Castano change his moniker from "Dumbo" to "Heavy D." Another stated "RIP K-Low" and, in the bottom left hand corner, there were the letters "X VNS 4."

Officers found a flash drive in Castano's bedroom that contained an essay called "Prison Gangs." In the essay, Castano admitted to being "an active Northern 'Norteno.' " In high school, Castano presented the essay to his English class, arguing gangs could do good things. The thumb drive contained a picture of a memorial created for Kevin R.

Castano's Facebook account name was "Dumbo Castano." Castano's Facebook page included a photograph of Castano and Kevin R. Castano was Facebook friends with "Jay White," which was Johnny B.'s Facebook account name. Castano was also friends with Jose B., whose Facebook page contained a photo of Kevin R., Johnny B., and Alex H. A post on Castano's Facebook page stated: " 'Givin love to my homie porin liquor on the ground rest in peace Kevin Klow [R.] an fuck my niggas haters.' " An earlier post stated: " 'Daam almost a months gone by since I've seen my homey daam real talk I miss my nigga Rest in Peace Kevin "K-Low" [R.].' "

At trial, Corporal Kindorf testified for the prosecution as a gang expert. Corporal Kindorf was a detective in the street gang unit of the Concord Police Department for four years, investigating gang crimes in Concord, Pittsburg and Bay Point. For five years, Corporal Kindorf worked in the special enforcement team, specializing in investigations related to dangerous drugs and street gangs. For another four years, Corporal Kindorf was a patrol officer in the City of Concord. Corporal Kindorf had approximately 200 hours of formal training regarding gang investigations, including prison gangs. Corporal Kindorf had contacts with hundreds of Norteno gang members. As a detective in the gang unit, he would routinely conduct probation checks and probation searches at the homes of gang members. He has spoken to hundreds of victims of Norteno gang violence.

According to Corporal Kindorf, the Norteno gang is a "Tier II gang," with Nuestra Familia being the "parent . . . or . . . umbrella organization." VNS, or Varrio North Side, is a "neighborhood chapter" of the Nortenos, or a "Tier III" group. Common signs or symbols for the Norteno gang include the number 14, which is often represented using a Roman numeral "X" followed by the number "4," and the Huelga bird. Nortenos tend to wear the color red. The main rivals of the Nortenos are the Sureno gang, who associate with the number 13, and the color blue.

Corporal Kindorf testified that VNS is "a gang which is in existence in Concord and Bay Point, although it really was founded in Concord." VNS started in Concord in the mid to late 1990's, and original members of VNS were high school students. VNS spread to Bay Point in the early 2000's, and it is now equally established in both areas. Corporal Kindorf estimated that in September 2012, when the shooting of Fernando G. occurred, there were several dozen to 40 or 50 active members of VNS.

VNS members identify themselves using the letters "VNS" in writings, tattoos, and gang graffiti. They identify with the term "Northern Structure," the number 14, which can be written in different ways, and the Huelga bird. Gang members often have "monikers," which they use in gang graffiti. VNS consists of a hierarchy, including a senior current member, or "shot-caller." Corporal Kindorf believed Sean Dunne was VNS's shot-caller.

Corporal Kindorf testified gangs commit overt or brazen crimes within the community to intimidate others and to achieve respect through fear. Corporal Kindorf stated members of VNS engaged in crimes including "homicides, robberies, assaults with deadly weapons, shooting at occupied dwellings or occupied vehicles, [and] carjackings." One way to become a member of VNS was to be "jumped in," which means voluntarily submitting to an assault by gang members. Another more common way was by " 'putting in work,' " which means committing a crime at the direction of the gang.

The letters from "Skreech" included a reference to the term "CAUSE," which stands for "Conduct, Awareness, Unity, Security, and Education," which Corporal Kindorf described as guidelines or principles of the Norteno street gang and VNS. The letters included a drawing of a Huelga bird. When the letter "S" was used, it had a line crossed through it, to signify a lack of respect for the Sureno gang. One letter instructed Castano to get educated and to carry a gun. Another described the significance of the colors red, black and white for Northerners. It described the importance of being physically fit and ready to fight three "scraps" at one time, a derogatory term for Surenos.

Corporal Kindorf identified a number of persons he believed were VNS members, and the prosecution moved into evidence certified records of their convictions for various offenses. Corporal Kindorf testified regarding friction between the Norteno VNS gang and the Shore Acres Boys, including high school fights in 2009 and 2010 involving Fernando G. and Kevin R. In one of the incidents, Kevin R. admitted being a Norteno gang member.

Corporal Kindorf opined that Castano was a "prospective member" or "pledge" of VNS. Corporal Kindorf based his opinion on the "indoctrination letters from Skreech," who was mentoring or "tutoring a prospective and younger member." He also based it on Castano's school essay, Castano's mother's statements, and Castano's association with known VNS members. It was significant to Corporal Kindorf that Castano was arrested at the home of Sean Dunne, who, according to Corporal Kindorf, was "the top shot-caller" for VNS. The willingness of other VNS gang members to harbor and hide a wanted fugitive showed Castano had been accepted by VNS.

Based on a hypothetical setting forth the facts of this case, Corporal Kindorf opined the shooting benefited VNS because Castano shot a rival gang member, and avenged the death of Kevin R. The shooting sent a message to other gangs not to mess with VNS. It benefited VNS because committing the crime in broad daylight would intimidate witnesses, and further the power and influence of VNS in its geographical area. It benefited VNS to have Castano commit the crime because he was unknown to law enforcement prior to this incident, so he drew suspicion away from the usual suspects. Corporal Kindorf opined the shooting benefited and increased Castano's standing within VNS by showing the gang that he could be trusted and was ready for increased responsibility.

B. Defense Evidence

A teacher at the elementary school testified she was taking kindergartners to the playground when she heard shots. She saw two people running up the street. One of the two stopped and stared at the teacher, who thought she was going to get shot, but then he continued running. The person was wearing a hooded sweatshirt, and long pants or jeans and possibly white shoes. He appeared to be either a darker Caucasian or light Hispanic. The teacher identified the second person as shorter and stouter. She did not recognize Castano as a person she saw running from the sound of gunfire.

An administrator from Mount Diablo High School described an incident at the school in June 2012, about three months before the shooting of Fernando G. Garry W. came to the school to clear up a fine so that he could graduate from another high school. Several students, including Castano, reacted negatively to Garry W.'s presence at the school. The administrator managed to diffuse a tense situation involving the students.

Castano testified that, on the day of the shooting, he wore a black Lacoste polo shirt, cargo shorts, and Jordan sneakers that were black and white with some red on the bottom. He walked down Marina Road towards the elementary school because he was going to see some friends. He testified he was not wearing the same clothes as the person in the surveillance video from the school. Castano saw Yanely M., and he said " 'hi.' " Castano saw Maria G., who gave him an "ill look." Castano said he saw Fernando G. sitting alone in a car. Castano heard three gunshots as he got into his friend's car. Listening to a scanner, Castano learned police were looking for him. Castano and his friend drove to Brentwood, and Castano did not return to Bay Point. After his arrest, when asked by a detective about the shooting at Bay Point three months earlier, Castano said he did not know what the detective was taking about.

C. Verdict and Sentence

A jury convicted Castano of murder (§ 187, subd. (a); count one), and participation in a criminal street gang (§ 186.22, subd. (a); count two). The jury found true the gang enhancement allegation to count one, that Castano committed murder for the benefit of, at the direction of, or in association with VNS and the Nortenos (§ 186.22, subd. (b)(1)). The jury further found true the count one enhancement that Castano personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c) & (d)). The court sentenced Castano to a prison term of 60 years to life.

DISCUSSION

I.

There Was Sufficient Evidence One of the "Primary Activities" of VNS Was the

Commission of Enumerated Offenses

Castano argues "the prosecution failed to prove by substantial evidence the 'primary activities' prong of the gang crime and enhancement." The Attorney General admits Corporal Kindorf "did not specifically opine that one of VNS's primary activities was the commission of one or more of the enumerated offenses." Nonetheless, the Attorney General contends the evidence of crimes committed by VNS gang members was sufficient to make this showing. We agree with the Attorney General. We begin with an overview of the gang crime and gang enhancement statute.

A. Active Participation in a Criminal Street Gang and the Gang Enhancement

The California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act, punishes "[a]ny 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 . . . ." (§ 186.22, subd. (a).) The elements of the substantive gang offense are: (1) "active participation in a criminal street gang, in the sense of participation that is more than nominal or passive"; (2) "knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity"; and (3) "the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) The felonious criminal conduct that is promoted, furthered, or assisted, does not have to be gang related. (People v. Albillar (2010) 51 Cal.4th 47, 55 (Albillar).)

"To establish that a group is a criminal street gang . . . , 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." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).) "A 'pattern of criminal gang activity' is defined as gang members' individual or collective 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.] The charged crime may serve as a predicate offense . . . ." (Duran, supra, 97 Cal.App.4th at p. 1457.)

While active participation in a criminal street gang is a crime, the STEP Act also imposes enhanced punishment when a defendant commits a felony "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." (§ 186.22, subd. (b)(1).) In other words, a criminal offense is subject to increased punishment under the STEP Act if the crime is gang related. (Albillar, supra, 51 Cal.4th at p. 60.)

B. The Evidence of VNS's Primary Activities

Castano contends there was insufficient evidence offenses enumerated in subdivision (e) of the STEP Act were one of VNS's "primary activities." "In considering a challenge to the sufficiency of the evidence . . . , we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence."³ (Albillar, supra, 51 Cal.4th at pp. 59-60.)

3 Relying on People v. Story (2009) 45 Cal.4th 1282, 1296, the Attorney General argues we should consider erroneously admitted evidence in determining the sufficiency of the evidence. We disagree. In Story, the court stated when reviewing the sufficiency of the evidence for purposes of deciding whether retrial is permissible under the Double Jeopardy Clause, the trial court must consider all of the evidence, including evidence that should not have been admitted. (Story, supra, 45 Cal.4th at pp. 1296-1297.) Here, we are not considering whether retrial is permissible. Accordingly, we will not consider evidence that should not have been admitted.

The phrase "primary activities" means "the commission of one or more of the statutorily enumerated crimes [must be] one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) This evidence is necessary to differentiate criminal street gangs from other organizations that may occasionally commit enumerated offenses, such as environmental groups, or police departments. (Id. at pp. 323-324.) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . . . [the gang] . . . was primarily engaged in . . . statutorily enumerated felonies." (Id. at p. 324.)

We can consider the charged crime when determining the primary activities of VNS. (Sengpadychith, supra, 26 Cal.4th at p. 323.) Here, there was substantial evidence Castano was a member, or prospective member of VNS, including his mother's testimony regarding Castano's friends, and her testimony regarding finding knives and a firearm in Castano's bedroom. In the essay found on a thumb drive in his bedroom, Castano admitted to being " 'an active Northern "Norteno." ' " The letters from Tomas M., or "Skreech," to Castano showed Tomas M. was mentoring or "tutoring a prospective and younger member." One of the letters instructed Castano to carry a gun. Corporal Kindorf opined Castano was a VNS member based on the persons with whom he associated, his essay, his Facebook posts, including photos with Kevin R., and his arrest at the home of Sean Dunne. Therefore Castano's murder of Fernando G. supports the conclusion VNS had as one of its primary activities the commission of enumerated offenses.

There was also evidence Sean Dunne, Justin Dunne, and Joshua Simmons were VNS gang members. For these three gang members, the prosecution introduced certified records showing they were convicted of enumerated offenses, including assault by force likely to produce great bodily injury, burglary, voluntary manslaughter, and being a felon in possession of a firearm. In addition, even though Corporal Kindorf did not specifically opine that one of the primary activities of VNS was the commission of offenses enumerated in section 186.22, subdivision (e), he did testify VNS engaged in a pattern of criminal activity by committing "homicides, robberies, assaults with deadly weapons, shooting at occupied dwellings or occupied vehicles, carjackings . . . [and] weapons possession." He testified VNS had been in existence since the 1990's. Corporal Kindorf estimated that in September 2012 there were several dozen to 40 or 50 active members of VNS.

In his opening brief, Castano argues evidence four VNS gang members sustained seven convictions would be insufficient to demonstrate members of VNS "consistently and repeatedly" committed enumerated offenses. We disagree with this claim. In People v. Vy (2004) 122 Cal.App.4th 1209 (Vy), the court considered the evidence of crimes committed by a two-year-old Vietnamese gang consisting of "approximately" six members. (Id. at p. 1219.) The court found evidence of the charged crime, plus evidence of two other stabbing incidents over a period of three months, was sufficient to satisfy the "primary activities" prong of section 186.22, subdivision (f). (Id. at pp. 1224-1225.)

In Duran, the defendants challenged the sufficiency of the evidence for a true finding on a gang enhancement. (Duran, supra, 97 Cal.App.4th at pp. 1463-1464.) The court found the evidence supported a jury finding that members of the gang "were engaged in more than the occasional sale of narcotics, robbery, or assault. [The expert] testified that the Florencia 13 members engaged in these activities 'often,' indeed often enough to obtain 'control' of the narcotics trade in a certain area of Los Angeles. Evidence of [the charged] robbery and [a gang member's prior] conviction [for felony possession of cocaine base for sale] further corroborated [the expert's] testimony, providing specific examples of Florencia 13 members' commission of robbery and narcotics offenses." (Id. at p. 1465.)

Similarly here, reviewing the evidence in the light most favorable to the judgment (Albillar, supra, 51 Cal.4th at pp. 59-60), we conclude there was sufficient evidence to find enumerated offenses were one of VNS's primary activities. While evidence of only one offense would not be enough (Vy, supra, 122 Cal.App.4th at p. 1223), we have much more than that here. We have Corporal Kindorf's general background testimony regarding the long history of VNS, a gang that had been in existence since the 1990's, and the kinds of crimes committed by VNS members. There was evidence Castano was a VNS member, or prospective member, when he murdered Fernando G. There was evidence Sean Dunne, Justin Dunne, and Simmons were VNS members who committed enumerated offenses including assault, burglary and voluntary manslaughter. Like in Duran, supra, 97 Cal.App.4th at p. 1465, this evidence of specific crimes corroborated Corporal Kindorf's more general testimony regarding the kinds of crimes committed by VNS members. Based on this evidence, it was reasonable for the jury to conclude enumerated offenses were one of VNS's primary activities.

II.

Sanchez Does Not Require Reversal of Castano's Gang Crime Conviction or Gang

Enhancement

Relying on Sanchez, Castano contends the prosecution relied on inadmissible case-specific or testimonial hearsay offered by its gang expert, Corporal Kindorf, and therefore "[t]he prosecution failed to prove the 'pattern of criminal activity' element for both the criminal street gang crime and its enhancement." As we explain, applying the first step of the Sanchez analysis, we find that some of Corporal Kindorf's testimony consisted of inadmissible case-specific hearsay, but the errors were harmless. Applying the second step, we find the record was not sufficiently developed to conclude this hearsay was testimonial. For these reasons, we conclude the California Supreme Court's decision in Sanchez does not require reversal of Castano's gang crime conviction or the gang enhancement. We begin with a summary of the Sanchez decision.

A. Case-specific Hearsay and Testimonial Hearsay

In Sanchez, the California Supreme Court reversed the jury findings on the gang enhancement, holding that "the case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford [v. Washington (2004) 541 U.S. 36 (Crawford)]. The error was not harmless beyond a reasonable doubt." (Sanchez, supra, 63 Cal.4th at pp. 670-671.)

With respect to the hearsay rule, the court drew a distinction between "an expert's testimony regarding his general knowledge in his field of expertise," and "case-specific facts about which the expert has no independent knowledge." (Sanchez, supra, 63 Cal.4th at p. 676, italics omitted.) The former is not barred by the hearsay rule, even if it is "technically hearsay," while the latter is. (Ibid.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Ibid.)

With respect to the confrontation clause, the court determined "[i]f a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations . . . are not satisfied, . . . [a]dmission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.) Testimonial hearsay consists of "statements about a completed crime, made to an investigating officer by a nontestifying witness . . . unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Id. at p. 694.)

B. The Court's Sanchez Errors Do Not Require Reversal of Castano's Gang Crime Conviction or the Gang Enhancement

Relying on Sanchez, Castano contends "the pattern element was based on both state law hearsay and testimonial hearsay." Castano avers that Corporal Kindorf "identified seven individuals as Norteno and/or VNS gang members and then described the various enumerated offenses that they had committed." According to Castano, Corporal Kindorf merely "relayed what others had told him about the offenses, that is, case-specific hearsay; and [he] did not have personal knowledge that the seven individuals were gang members."

We begin our analysis with an overview of Corporal Kindorf's testimony regarding VNS gang members. With regard to each of these individuals, we focus first on the testimony used to show their VNS membership.

1. Corporal Kindorf's VNS Gang Testimony

Corporal Kindorf opined that Sean Dunne was a VNS gang member, and Corporal Kindorf based his opinion on his personal observations that Sean Dunne had a tattoo on his abdomen, consisting of the letters "VNS," and tattoos on his pectoral muscles representing the number 14. Corporal Kindorf also identified Sean Dunne's tattoos based on a photograph, but the photograph was not as clear as Corporal Kindorf's personal observations because the photograph depicted only two of the three letters of "VNS." Corporal Kindorf also based his opinion Sean Dunne and his brother were VNS members on "self-admissions that I heard from . . . both Dunnes in the late '90s and early 2000's." Sean Dunne's moniker is "Silent."

Corporal Kindorf testified regarding Joshua Simmons, who "grew up in Concord," and who was "an early member of VNS." Corporal Kindorf opined that Simmons was a VNS member based on having tattoos for Varrio North Side, and the Huelga bird. Simmons was "a self-admitted Norteno, VNS member," and he was "validated at the state level" as a VNS member.

Corporal Kindorf testified Mauro Gutierrez "is a person that I know [to] be an active member of Varrio North Side. . . . I know that he's a self-admitted member of the gang and, to my knowledge, also currently in state prison." Corporal Kindorf testified prison staff validated Gutierrez as an active Norteno gang member.

Corporal Kindorf opined that Sean Dunne's younger brother, Justin Dunne, was a VNS gang member. Justin Dunne's moniker was "'Lil Silent." Corporal Kindorf heard "self-admissions . . . from . . . both Dunnes" regarding their VNS membership, and Corporal Kindorf also read Justin Dunne's "self-admissions" in police reports. Justin Dunne had tattoos indicating VNS membership. Corporal Kindorf also opined Thomas Sheakley was a VNS gang member based on Corporal Kindorf's observation of Sheakley's Norteno tattoos of a Huelga bird, although Corporal Kindorf was not sure if Sheakley had a VNS-specific tattoo because "it's been a few years since I've seen him."⁴

4 The Attorney General concedes Corporal Kindorf's testimony regarding three other individuals did not support the jury's criminal street gang finding, but for reasons that have nothing to do with Sanchez. The prosecution did not move into evidence any conviction pertaining to one of them. Corporal Kindorf did not testify the two others were VNS members. Given the Attorney General's concession, we have not considered Corporal Kindorf's testimony regarding these three persons when determining if Sanchez requires reversal of Castano's gang crime conviction and gang enhancement.

2. Castano Did Not Forfeit His Sanchez Challenge

Relying on Sanchez, Castano argues this testimony was inadmissible because it consisted of both case-specific hearsay and testimonial hearsay. Preliminarily, the Attorney General argues Castano forfeited this challenge to Corporal Kindorf's VNS gang testimony because Castano did not object at trial based on hearsay or violation of the confrontation clause. We are not persuaded Castano's challenge is forfeited.

Before trial, Castano filed a motion in limine to bifurcate and limit gang evidence, arguing gang evidence would be unduly prejudicial. When arguing the motion, Castano offered, in the alternative, to admit the gang enhancement and, if gang evidence was removed from the case, to plead guilty to count two, the gang crime. The court denied the motion finding the gang enhancement was intertwined with the charge of murder, and the gang evidence would be relevant to motive, intent, and was not unduly prejudicial. Although Castano's motion in limine mentioned precluding the prosecution's gang expert from offering opinions based on hearsay, there was no discussion of hearsay or the confrontation clause at the hearing on the motion. When Corporal Kindorf testified regarding VNS gang members, Castano did not object to the testimony as hearsay or as violating the confrontation clause.

Ordinarily, a failure to object to evidence at trial forfeits any claim of error associated with the admission of the evidence. (People v. Dykes (2009) 46 Cal.4th 731, 756.) But we can excuse a failure to object when an objection would have been futile. (People v. Welch (1993) 5 Cal.4th 228, 237-238.) In People v. Meraz (2016) 6 Cal.App.5th 1162 (Meraz), the court determined an objection to the gang expert testimony on confrontation clause grounds was not forfeited, noting "[a]ny objection would likely have been futile because the trial court was bound to follow pre-Sanchez decisions holding expert 'basis' evidence does not violate the confrontation clause." (Id. at 1170, fn. 7.) The same reasoning applies here. Accordingly, we consider Castano's hearsay or confrontation clause claims.

3. Corporal Kindorf's Testimony Regarding VNS Gang Members Included Case-Specific Hearsay

Castano argues Corporal Kindorf was relaying "case-specific hearsay" when he identified persons as VNS gang members. The Attorney General responds Corporal Kindorf's testimony did not involve case-specific facts "because it did not 'relat[e] to the particular events and participants alleged to have been involved in the case being tried.' [Citation.] The particular event here was the murder of Fernando [G.] The alleged participant was [Castano]. The testimony [Castano] challenges did not relate to the particular event or participant, but to certain VNS members' tattoos, monikers, admissions, gang-validation status, and criminal activities. In contrast, the police records relied on and testified to by the Sanchez expert involved the defendant and served as proof of his gang membership."

On this point, we agree with Castano, and disagree with the Attorney General. Corporal Kindorf's testified regarding "case-specific" facts when discussing alleged members of VNS. In Sanchez, the Court gave the following example to clarify the distinction between general, background information and case-specific facts: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at p. 677.)

Similarly here, Corporal Kindorf's opinion that certain persons were VNS members was based in part on his observations of their VNS tattoos, and their admissions. When testifying regarding facts of this kind, Corporal Kindorf was relating case-specific facts. (People v. Ochoa (2017) 7 Cal.App.5th 575, 589 (Ochoa) ["that someone admitted being a gang member is . . . a case-specific fact"].) Moreover, the police arrested Castano at the residence of Sean Dunne, so Corporal Kindorf's testimony regarding Sean Dunne concerned a participant involved in the case.

We next consider whether the basis for Corporal Kindorf's opinions regarding VNS gang members was inadmissible case-specific hearsay. Castano contends that Corporal Kindorf "did not testify that he had personal knowledge of their gang membership. For example, [Corporal] Kindorf did not testify that any of the seven admitted to him that they were VNS." This statement is not accurate because Corporal Kindorf testified both Sean Dunne and Justin Dunne admitted to him they were VNS members in the late 1990's and early 2000's. Nonetheless, admissions to VNS membership, whether told directly to Corporal Kindorf or to others, are out-of-court statements offered for the truth of their content. (Sanchez, supra, 63 Cal.4th at p. 674; Ochoa, supra, 7 Cal.App.5th at pp. 588-589.) As such, the admissions are hearsay, and inadmissible. The same problem applies regarding Corporal Kindorf's testimony about the VNS admissions of Simmons and Gutierrez.

4. The Court's Admission of Hearsay During Testimony Regarding the Gang Membership of Sean Dunne, Justin Dunne, and Simmons Did Not Prejudice Castano

" 'We review the erroneous admission of expert testimony under the state standard of prejudice.' " (Ochoa, supra, 7 Cal.App.5th at p. 589, quoting People v. Stamps (2016) 3 Cal.App.5th 988, 997.) Reversal is required if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Even though Corporal Kindorf's testimony regarding the self-admissions to VNS membership of Sean Dunne, Justin Dunne, and Simmons was inadmissible case-specific hearsay under Sanchez, we conclude this error was harmless. Based on Corporal Kindorf's other testimony regarding these three individuals, it is reasonably probable the jury would have concluded they were VNS gang members even if Corporal Kindorf had not testified regarding their self-admissions. We cannot draw the same conclusion regarding the testimony used to establish Gutierrez and Sheakley were gang members.

a. Sean Dunne

Contra Costa Sheriff's Department Deputy Erin Bai was involved in the detention of Sean Dunne at a residence in Antioch as part of the search for Castano. Deputy Bai identified a Facebook photograph of Sean Dunne. Corporal Kindorf was shown the photograph, and he testified that his personal observations of Sean Dunne's tattoos was better than the photograph, because the photograph showed only the "V" and the "N" of his "VNS" tattoo. Corporal Kindorf based his opinion that Sean Dunne was a VNS member in part on his personal observations of Sean Dunne's tattoos.

This testimony parallels the Sanchez court's example of admissible expert testimony. It relates case-specific facts regarding tattoos established by a witness who saw them. (Sanchez, supra, 63 Cal.4th at p. 677.) There is nothing in Sanchez to indicate the prosecution's expert witness cannot provide case-specific facts based on his or her personal knowledge. Under Sanchez, expert witnesses "can rely on information within their personal knowledge." (Sanchez, supra, 63 Cal.4th at p. 685; see People v. Vega-Robles (2017) 9 Cal.App.5th 382, 413 ["it is not error for a gang expert to testify about case-specific facts about which he has personal knowledge."].) Corporal Kindorf provided the jury with the background information that members of VNS "identify themselves as VNS, using those letters in their writings, sometimes in tattoos, and in their gang graffiti." They also identify with the number 14, which can be written in different ways, and with the Huelga bird. Corporal Kindorf then opined that based on his personal observation of Sean Dunne's tattoos, he was a VNS member. This expert testimony was admissible.

Corporal Kindorf also based his opinion Sean Dunne was a VNS member on having known Sean Dunne since the late 1990's. When being cross-examined, Corporal Kindorf testified: "Well, if there's one person who I would say is the senior person of Varrio North Side, who's not currently in custody, out on the street, if you will, it would be Shawn [sic] Dunne. He is an extremely influential member of that gang. He is a member with extreme power and respect . . . He is really the top guy, the top shot-caller. So for him to be personally involved with harboring a fugitive and being present where someone who has a warrant out for their arrest, felony warrant, is pretty significant. As I said, I don't think he would take that risk lightly." Corporal Kindorf recalled Sean Dunne's moniker was "Silent."

We do not know how Corporal Kindorf learned Sean Dunne was VNS's top shot caller or how he learned Sean Dunne's moniker because Castano did not object to the testimony. Castano acknowledges that "the source of Kindorf's knowledge was difficult to know." He states that "the burden is on the prosecution to lay a foundation for its admissibility," and where it failed to do that, it failed to prove the gang crime and enhancement. We disagree with this approach. Castano " 'has the burden of demonstrating error and prejudice.' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364; Ochoa, supra, 7 Cal.App.5th at pp. 585-586.) The testimony regarding Sean Dunne being VNS's top shot-caller, and regarding Sean Dunne's moniker, did not relay out-of-court statements offered for their truth. Castano offers no basis, other than Sanchez, to argue the testimony was inadmissible. Therefore, he has not demonstrated the court erred by admitting this testimony. Based on the evidence regarding Sean Dunne's tattoos, moniker, and the testimony he was VNS's top shot-caller, it is not reasonably probable the jury would have concluded Sean Dunne was not a VNS member if the court excluded Corporal Kindorf's testimony regarding Sean Dunne's self-admission.

b. Justin Dunne and Simmons

A similar analysis applies to Corporal Kindorf's testimony regarding Justin Dunne and Simmons. Corporal Kindorf testified that Justin Dunne's moniker was "'Lil Silent." Corporal Kindorf based his opinion Justin Dunne was a VNS gang member on self-admissions in police reports, as well as "self-admissions that I heard from himself, from Mr. Dunne - actually, both Dunnes in the late '90s and early 2000's. And I also would base that on their VNS tattoos across their torsos."

Corporal Kindorf's statements regarding Justin Dunne's self-admissions were case-specific hearsay. (Sanchez, supra, 63 Cal.4th at pp. 676-677; Ochoa, supra, 7 Cal.App.5th at pp. 588-589.) But there is no basis in the record to conclude Corporal Kindorf's statements regarding Justin Dunne's moniker or his VNS tattoos were inadmissible. They appear to be statements based on Corporal Kindorf's personal knowledge, and he was not relaying out-of-court statements made by others. Based on this admissible testimony, it is not reasonably probable the jury would have concluded Justin Dunne was not a VNS gang member if the court excluded Corporal Kindorf's hearsay statements regarding Justin Dunne's self-admissions.

Corporal Kindorf testified Simmons was "an early member of VNS." Corporal Kindorf opined Simmons was a VNS member based on having tattoos for Varrio North Side, the Huelga bird, and he was "a self-admitted Norteno, VNS Member." The record is not developed regarding whether Corporal Kindorf had personal knowledge of Simmons's tattoos, but Castano did not object, so we presume this testimony was admissible. (Ochoa, supra, 7 Cal.App.5th at pp. 584-585.) Based on this testimony, it is not reasonably probable the jury would have concluded Simmons was not a VNS gang member if the court excluded Corporal Kindorf's hearsay statement regarding Simmons's self-admission.

c. Gutierrez and Sheakley

The same cannot be said of the testimony regarding Gutierrez and Sheakley. Corporal Kindorf testified Gutierrez "is a person that I know [to] be an active member of Varrio North Side . . . I know that he's a self-admitted member of the gang and, to my knowledge, also currently in state prison." Corporal Kindorf testified a prison gang investigator validated Gutierrez as an active Norteno gang member. There was no testimony regarding Gutierrez's tattoos, if any. Corporal Kindorf's testimony regarding Gutierrez's self-admission and prison validation were case-specific hearsay that should have been excluded. (Sanchez, supra, 63 Cal.4th at pp. 676-677; Ochoa, supra, 7 Cal.App.5th at pp. 588-589.) This was the only testimony Corporal Kindorf relied on to opine Gutierrez was a VNS gang member. As to Gutierrez, there was no admissible evidence to establish his VNS gang membership.

With regard to Sheakley, Corporal Kindorf opined he was a VNS member based on his tattoos. Corporal Kindorf stated Sheakley "has Norteno tattoos of a Huelga bird on one side of his upper chest. And I can't recall now, since it's been a few years since I've seen him, if he has a VNS-specific tattoo. I'm not sure." This testimony was not inadmissible under Sanchez, but we find it insufficient to show Sheakley was a VNS gang member. Possessing a tattoo of a Huelga bird would not distinguish Sheakley as a member of the VNS subset of Nortenos because, according to Corporal Kindorf, other Nortenos also identify with the symbol. This testimony was insufficient to establish Sheakley was a VNS gang member.

In summary, we conclude the evidence used to establish Sheakley's VNS membership was not hearsay, but it was insufficient, and the evidence used to show Gutierrez's VNS membership was inadmissible. While the hearsay evidence used to show Sean Dunne, Justin Dunne, and Simmons were VNS members — i.e. their self-admissions —was inadmissible, other admissible evidence provided a sufficient foundation to support Corporal Kindorf's opinions they were VNS gang members, especially his testimony regarding their tattoos.

5. The Record Is Not Sufficiently Developed to Conclude Corporal Kindorf's Hearsay Testimony Regarding Sean Dunne, Justin Dunne and Simmons Was Testimonial

Next, we consider whether the hearsay evidence used to show Sean Dunne, Justin Dunne, and Simmons were VNS gang members was testimonial. (Sanchez, supra, 63 Cal.4th at p. 680 [applying a two-step analysis].) Testimonial hearsay consists of "statements about a completed crime, made to an investigating officer by a nontestifying witness . . . unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Id. at p. 694.)

The record is not sufficiently developed to determine if the self-admissions of Sean Dunne, Justin Dunne, and Simmons were testimonial hearsay. (See People v. Giordano (2007) 42 Cal.4th 644, 666 [" ' "error must be affirmatively shown" ' "].) Corporal Kindorf knew Sean and Justin Dunne since the 1990's. He testified Simmons was "an early member of VNS," and Corporal Kindorf had contacts with hundreds of Norteno gang members, including conducting probation checks and searches. Sean Dunne, Justin Dunne, and Simmons may have made their admissions in the course of Corporal Kindorf's informal interactions with them, rather than as part of an investigation to memorialize facts relating to past criminal activity. (People v. Valadez (2013) 220 Cal.App.4th 16, 36 ["Day in and day out such information would be useful to the police as part of their general community policing responsibilities quite separate from any use in some unspecified criminal prosecution"].) Accordingly, Castano has not demonstrated their self-admissions violated the confrontation clause. (Ochoa, supra, 7 Cal.App.5th at pp. 583, 585.)

6. The Certified Records of Conviction of Sean Dunne, Justin Dunne, and Simmons Were Admissible

Having determined the prosecution's evidence that Sean Dunne, Justin Dunne, and Simmons were VNS gang members survives Castano's Sanchez challenge, we next consider the admissibility of their certified records of conviction. The prosecution relied on these records to show the VNS gang members committed enumerated offenses. (Duran, supra, 97 Cal.App.4th at p. 1458 [to show pattern of criminal activity, prosecution can rely on gang members' convictions for enumerated offenses].)

The prosecution introduced certified records of two convictions of Sean Dunne for assault by force likely to produce great bodily injury. (§§ 186.22, subd. (e)(1); 245, subd. (a)(4).) With regard to Justin Dunne, the prosecution relied on a certified record of conviction for first degree residential burglary. (§§ 186.22, subd. (e)(11); 459/460, subd. (a).) The prosecution relied on conviction records of Simmons for voluntary manslaughter (§§ 186.22, subd. (e)(3); 192, subd. (a)), and for being a convicted felon in possession of a firearm. (§ 186.22, subd. (e)(31); former § 12021, subd. (a)(1).)⁵

5 At the time of Simmons's conviction, the Penal Code section for the offense of being a felon in possession of a firearm was section 12021. Effective January 1, 2012, section 12021, subdivision (a) was repealed and reenacted without substantive change as section 29800, subdivision (a). (Stats. 2010, ch. 711, § 6.)

Castano does not argue the certified records of conviction were themselves inadmissible. Under California law, they were admissible based on the hearsay exception created by Evidence Code section 452.5. (Duran, supra, 97 Cal.App.4th at p. 1461 ["we conclude that Evidence Code section 452.5 states a new hearsay exception for certified official records of conviction, which may be offered to prove not only the fact of a conviction, but the commission of the underlying offense"].) California courts have also held records of conviction do not violate the confrontation clause. (Meraz, supra, 6 Cal.App.5th at p. 1176, fn. 10; People v. Taulton (2005) 129 Cal.App.4th 1218, 1225; People v. Moreno (2011) 192 Cal.App.4th 692, 710-711.)

Here, we have determined the errors in the admission of hearsay evidence used to show Sean Dunne, Justin Dunne, and Simmons were VNS gang members were harmless, and Castano has not shown this hearsay evidence was testimonial. For these three gang members, the prosecution introduced admissible evidence they were convicted of enumerated offenses, including assault by force likely to produce great bodily injury, burglary, voluntary manslaughter, and being a felon in possession of a firearm. This evidence was sufficient to show VNS gang members engaged in a pattern of criminal activity. (Duran, supra, 97 Cal.App.4th at pp. 1457-1458.) Accordingly, Sanchez does not require reversal of the gang crime conviction or the gang enhancement.

III.

The Court's Failure to Orally Instruct the Jury on the Elements of the Gang

Enhancement Did Not Prejudice Castano

Castano contends the jury's true finding on the gang enhancement must be reversed because the court failed to orally instruct the jury on its elements. We conclude the court's failure to read the jury instruction on the gang enhancement did not prejudice Castano.

A. The Oral and Written Instructions on the Gang Crime and Enhancement

When it started reading the jury instructions, the court told the jury it would provide them with a written copy. The court read the instruction for count two, the crime of active participation in a criminal street gang, in accordance with CALCRIM 1400. (§ 186.22, subd. (a).) Then the court read the instruction on the firearm use enhancement to count one, consistent with CALCRIM 3149. But the court skipped, and failed to read, the instruction on count one's gang enhancement allegation.

The written instruction for count two provided as follows:

"The defendant is charged in Count Two with participating in a criminal street gang in violation of Penal Code section 186.22(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant actively participated in a criminal street gang;

2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;

AND

3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by:

a. directly and actively committing a felony offense;

OR

b. aiding and abetting a felony offense.

"At least two members of that same gang must have participated in committing the felony offense. The defendant may count as one of those members if you find that the defendant was a member of the gang.

[¶] Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. [¶] The People do not have to prove that the defendant devoted all or a substantial part of his time or efforts to the gang, or that he was an actual member of the gang. [¶] A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal:

1. That has a common name or common identifying sign or symbol;

2. That has, as one or more of its primary activities, the commission of

Assault with deadly weapon or with force likely to cause great bodily injury 245(a)(1) (4)PC

Robbery 211PC, Grand theft 487 PC or Burglary 459 PC

Unlawful Homicide 187/192PC

Criminal Threats 422PC or The intimidation of witnesses and victims 136.1PC

Sale or Possession for Sale of Controlled Substance 11352(a)HS, 11351.5HS, 11379HS, or 11378HS

Evading Police in a Vehicle 2800.2(a)VC

Unlawful Possession of Firearm 12021(a)PC, 29800PC, 29610PC

Carrying a Conceal[ed] Firearm 12025PC, 25400PC

Carrying a Loaded Firearm in Public 12031PC, 25850PC

Carjacking 215PC or Unlawful Taking of Vehicle 10851(a)VC

Shooting at an inhabited dwelling or occupied motor vehicle (246PC)

Discharging or permitting the discharge of a firearm from a motor vehicle 26100(a) and (b) PC

AND

3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.

"In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group. [¶] A pattern of criminal gang activity, as used here, means:

1. [A]ny combination of two or more of the following crimes/, or two or more occurrences of one or more of the following crimes:

Assault with deadly weapon or with force likely to cause great bodily injury 245(a)(1) (4)PC

Robbery 211PC, Grand theft 487 PC or Burglary 459 PC

Unlawful Homicide 187/192PC

Criminal Threats 422PC or The intimidation of witnesses and victims 136.1PC

Sale or Possession for Sale of Controlled Substance 11352(a)HS, 11351.5HS, 11379HS, or 11378HS

Evading Police in a Vehicle 2800.2(a)VC

Unlawful Possession of Firearm 12021(a)PC, 29800PC, 29610PC

Carrying a Conceal[ed] Firearm 12025PC, 25400PC

Carrying a Loaded Firearm in Public 12031PC, 25850PC

Carjacking 215PC or Unlawful Taking of Vehicle 10851(a)VC

Shooting at an inhabited dwelling or occupied motor vehicle (246PC)

Discharging or permitting the discharge of a firearm from a motor vehicle 26100(a) and (b) PC

2. At least one of those crimes was committed after September 26, 1988;

3. The most recent crime occurred within three years of one of the earlier crimes;

AND

4. The crimes were committed on separate occasions or were personally committed by two or more persons.

"The People need not prove that every perpetrator involved in the pattern of criminal gang activity, if any, was a member of the alleged criminal street gang at the time when such activity was taking place. [¶] The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related. [¶] If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved. [¶] You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed, but you do not have to all agree on which crimes were committed. [¶] As the term is used here, a willful act is one done willingly or on purpose.

[¶] Felonious criminal conduct means committing or attempting to commit any of the following crimes:

Assault with deadly weapon or with force likely to cause great bodily injury 245(a)(1) (4)PC

Robbery 211PC, Grand theft 487 PC or Burglary 459 PC

Unlawful Homicide 187/192PC

Criminal Threats 422PC or The intimidation of witnesses and victims 136.1PC

Sale or Possession for Sale of Controlled Substance 11352(a)HS, 11351.5HS, 11379HS, or 11378HS

Evading Police in a Vehicle 2800.2(a)VC

Unlawful Possession of Firearm 12021(a)PC, 29800PC, 29610PC

Carrying a Conceal[ed] Firearm 12025PC, 25400PC

Carrying a Loaded Firearm in Public 12031PC, 25850PC

Carjacking 215PC or Unlawful Taking of Vehicle 10851(a)VC Shooting at an inhabited dwelling or occupied motor vehicle (246PC) Discharging or permitting the discharge of a firearm from a motor vehicle 26100(a) and (b) PC

"To prove that the defendant aided and abetted felonious criminal conduct by a member of the gang, the People must prove that:

1. A member of the gang committed the crime;

2. The defendant knew that the gang member intended to commit the crime;

3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime;

AND

4. The defendant's words or conduct did in fact aid and abet the commission of the crime.

"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."

After reading this lengthy instruction on the substantive gang offense (count two), the court failed to read the next instruction on count one's gang enhancement. Instead, the court skipped to the instruction on count one's firearm enhancement. However, the written instructions contained an instruction on count one's gang enhancement based on CALCRIM 1401. It provided as follows:

"If you find the defendant guilty of the crime charged in Count One . . . you must then decide whether . . . the People have proved the additional allegation that the defendant committed that crime for the benefit of at the

direction of, or in association with a criminal street gang. [¶] To prove this allegation, the People must prove that:

1. The defendant committed or attempted to commit the crime for the benefit of at the direction of, or in association with a criminal street gang;

AND

2. The defendant intended to assist, further, or promote criminal conduct by gang members.

"The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related. [¶] The People need not prove that the defendant is an active or current member of the alleged criminal street gang. [¶] If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved. [¶] You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed, but you do not have to all agree on which crimes were committed. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."

B. The Court's Failure to Orally Instruct the Jury on the Gang Enhancement Was Harmless

Castano contends we should review the court's failure to read the jury instruction on the gang enhancement under the harmless error test of Chapman v. California (1967) 386 U.S. 18 (Chapman). Castano argues he was prejudiced by the failure to read the gang enhancement instruction because, "[u]nlike the gang crime . . . , the gang enhancement must be gang related." Castano surmises that if the jury "learned that the gang enhancement must be gang-related," then it might have concluded Castano shot Fernando G. "not for the gang but for personal reasons—to get back at the person who killed his best friend."

The Attorney General responds the court did not fail to instruct the jury on the gang enhancement because the written instructions control when there is a discrepancy between the written and oral instructions. The Attorney General argues the instructional error, if any, should be subject to the Watson standard of review. Applying Watson, supra, 46 Cal.2d at p. 836, the Attorney General argues the record evidence and the jury's verdict on the substantive offense demonstrate the court's failure to orally instruct the jury on the gang enhancement was harmless.

We first address the appropriate standard of review. In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court stated "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.) Based on Apprendi, the California Supreme Court determined "a trial court's failure to instruct the jury on an element of a sentence enhancement provision . . . is federal constitutional error if the provision 'increases the penalty for [the underlying] crime beyond the prescribed statutory maximum.' [Citation]. Such error is reversible under Chapman . . . unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (Sengpadychith, supra, 26 Cal.4th at p. 326.) However, when the gang enhancement provision "merely prescribes the minimum period the defendant must serve before becoming eligible for parole . . . [then] instructional error on an element of the gang enhancement provision does not violate the federal Constitution [citation], but only California law, making the error reviewable under the [Watson] standard . . . ." (Id. at p. 327.)

Relying on Alleyne v. United States (2013) 570 U.S. ___, 133 S.Ct. 2151, 2158, Castano argues the United States Supreme Court extended Apprendi to "any findings that trigger mandatory minimums, that is, any finding that elevates the minimum term above that otherwise available for the base offense." The gang enhancement provision provides in part that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22, subd. (b)(5).) Therefore Castano suggests the Chapman standard, not the Watson standard, should apply. We disagree.

In People v. Nunez and Satele (2013) 57 Cal.4th 1 (Nunez), the California Supreme Court determined when the gang enhancement applies to convictions for first degree murder, "Alleyne does not alter our conclusion that the court's instructional error violated only state law." (Id. at p. 39, fn. 6.) A person convicted of first degree murder who is sentenced to a prison term of 25 years to life is not eligible for parole before serving a minimum of 25 years in prison. (Id., citing § 190. subd. (e).) For this reason, the gang enhancement's mandatory minimum of 15 years does not increase the statutory minimum sentence, and, as a result, any instructional error as to the gang enhancement in cases involving a conviction of first degree murder does not violate the Sixth Amendment right to a jury trial. (Ibid.)

Here, the jury found Castano guilty of first degree murder. Based on the murder conviction, the court sentenced Castano to 25 years to life with the possibility of parole. Under section 190, subdivision (e), Castano is not eligible for parole until he serves 25 years in prison. Therefore Castano is not correct when he states the jury's true finding on the gang enhancement "elevated" the minimum parole period to 15 years. Even without the enhancement, Castano's minimum parole period was already 25 years. (Nunez, supra, 57 Cal.4th at p. 39, fn. 6.) Because the gang enhancement did not increase Castano's statutory minimum sentence, we review the court's failure to read the gang enhancement instruction to the jury under the state law standard articulated in Watson.

Under Watson, we must determine whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.) For the gang enhancement to apply, the prosecution had to prove Castano committed murder "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." (§ 186.22, subd. (b)(1).) In other words, the prosecution had to prove the murder was gang related. (Albillar, supra, 51 Cal.4th at p. 60.) We conclude it is not reasonably probable the jury would have found the gang enhancement allegation "not true" if the court read the gang enhancement instruction to the jury.

First, when " 'a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.' " (People v. Mills (2010) 48 Cal.4th 158, 200-201 (Mills), quoting People v. Wilson (2008) 44 Cal.4th 758, 803; People v. Majors (1998) 18 Cal.4th 385, 409-410 (Majors).) We "presume that the jurors were guided by the written version" of the instructions. (People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2 (McLain).) Here, although the court failed to read the jury instruction on the gang enhancement, the court stated it would provide the jury with a written copy, and there is no indication the court failed to do so. The written instruction on the gang enhancement stated the prosecution had to prove Castano committed the crime "for the benefit of at the direction of, or in association with a criminal street gang," and that he "intended to assist, further, or promote criminal conduct by gang members." It properly instructed the jury they had to find the murder was gang related.⁶

6 In a footnote, Castano contends the written instruction was inadequate because it left out "numerous elements" and did not "even cross-reference the elements that were defined by the earlier instruction for the gang crime." The Attorney General argues Castano waived any objection to the written instruction because he failed to provide a legal argument with citations to authorities on the points made. We do not consider Castano's argument waived or forfeited, but we are not persuaded by it. Although the written instruction, based on CALCRIM 1401, did not define a "criminal street gang" or a "pattern of criminal gang activity," those terms were defined in the immediately preceding instruction on the substantive gang offense. The written instruction on the gang enhancement was sufficient to apprise the jury of what they had to find to conclude the murder was gang related.

Second, the jury's verdict form supports the conclusion Castano was not prejudiced by the court's failure to read the jury instruction on the gang enhancement. The verdict form provided that "[w]e, the jury further find . . . the offense was committed by [Castano] for the benefit, at the direction of, and in association with 'VNS' Varrio North Side and the Nortenos, a criminal street gang, and with the specific intent to promote, further and assist in criminal conduct by gang members." This verdict form supports the conclusion the jury read and considered the correct written instruction on the gang enhancement allegation and that the court's failure to read the instruction did not prejudice Castano. (Majors, supra, 18 Cal.4th at p. 410 [relying in part on verdict form to conclude any error in oral instruction was harmless].)

Third, there was ample evidence Castano's shooting of Fernando G. was gang related. Castano concedes there was substantial evidence he "wanted to be a member of VNS." There was also testimony regarding a rivalry between VNS and the Shore Acres Boys, and Castano's victim was rumored to have previously killed another VNS member. Based on a hypothetical consistent with the facts of this case, Corporal Kindorf opined Castano's murder of Fernando G. benefited VNS and was done with the specific intent to promote criminal conduct of gang members because it avenged the death of a fellow gang member, sent a message VNS was "not to be messed with," strengthened the gang's influence in its community, and intimidated potential witnesses. Having someone unknown to law enforcement commit the shooting benefited the gang because it drew suspicion away known gang members. Based on this evidence showing the offense was gang related, it is not reasonably probable Castano was prejudiced by the court's failure to read the jury instruction on the gang enhancement.⁷ (People v. Andrews (1989) 49 Cal.3d 200, 215-216 [finding error in jury instruction on accomplice testimony was harmless based in part on strong evidence corroborating the accomplice testimony].)

7 In his reply brief, Castano cites for the first time a federal case, People of the Territory of Guam v. Marquez (9th Cir.1992) 963 F.2d 1311, 1315-1316, to support his conclusion he was prejudiced by the court's failure to read all the jury instructions, even if the instructions were also provided in written form. Ordinarily, we do not consider authority presented for the first time in a reply brief. (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 693.) In any event, this federal case is not binding on state courts. (People v. Cummings (1974) 43 Cal.App.3d 1008, 1019.) In contrast, we are compelled to follow the decisions of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), which has consistently held the written instructions control when there is a discrepancy between the written and oral instructions. (Mills, supra, 48 Cal.4th at pp. 200-201; People v. Crittenden (1994) 9 Cal.4th 83, 138; People v. Garceau (1993) 6 Cal.4th 140, 189-190; McLain, supra, 46 Cal.3d at p. 111, fn. 2.)

IV.

The Court's Erroneous Inclusion of "Evading a Police Officer" in Its List of Enumerated

Offenses Was Harmless

Castano asserts another instructional error: the court defined a "pattern of criminal gang activity" and a gang's "primary activities" as including "evading police in a vehicle," but this offense is not an enumerated offense under subdivision (e) of the STEP Act. Castano contends he was prejudiced by this instructional error because a conviction for this offense was the most common one the prosecution introduced into evidence. Exhibits 94, 95, 96, and 165 included convictions for evading a police officer in violation of Vehicle Code section 2800.2, subdivision (a). Castano contends his convictions under the substantive gang offense and the gang enhancement should be reversed because the convictions may have been based on "a legally unauthorized theory."

The Attorney General concedes the court erroneously included in its substantive gang crime jury instruction the crime of evading a police officer. The Attorney General also concedes the error is subject to review under Chapman's harmless error standard. The test is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.) In other words, "if it can be said beyond a reasonable doubt that the jury's verdict . . . was not affected by the erroneous instruction," then the error was harmless and reversal is not required. (Pope v. Illinois (1987) 481 U.S. 497, 502 (Pope).)

Here, we conclude beyond a reasonable doubt the verdicts on the gang crime and the gang enhancement were based on valid grounds. To find Castano guilty of the substantive gang offense, the jury had to find in part that VNS gang members engaged in "a pattern of criminal gang activity." (Rodriguez, supra, 55 Cal.4th at p. 1130 [outlining elements of substantive offense].) To find VNS was a criminal street gang, the jury had to find in part that one of the group's primary activities was the commission of one or more enumerated offenses. (Duran, supra, 97 Cal.App.4th at p. 1457.)

Corporal Kindorf testified VNS members engaged in a pattern of criminal activity by committing "homicides, robberies, assaults with deadly weapons, shooting at occupied dwellings or occupied vehicles, carjackings . . . [and] weapons possession." As we have explained, Corporal Kindorf testified based on admissible evidence that persons including Sean Dunne, Justin Dunne, and Simmons were VNS gang members, and the prosecution introduced certified records of their convictions for enumerated predicate offenses. None of their convictions were for evading a police officer in a vehicle; instead, Sean Dunne was twice convicted of assault by force likely to produce great bodily injury (§§ 186.22, subd. (e)(1); 245, subd. (a)(4)), Justin Dunne was convicted of first degree residential burglary (§ 186.22, subd. (e)(11); 459/460, subd. (a)), and Simmons was convicted of voluntary manslaughter (§§ 186.22, subd. (e)(3); 192, subd. (a)), and for being a convicted felon in possession of a firearm (§ 186.22, subd. (e)(31); former § 12021, subd. (a)(1).) These are predicate offenses under the STEP Act. Accordingly, it is clear beyond a reasonable doubt the jury's verdicts on the substantive gang offense and the gang enhancement were not affected by the erroneous jury instruction. (Pope, supra, 481 U.S. at p. 502.)

The prosecution also introduced exhibits 94, 95, and 96, which consisted of records of conviction of Daniel Griego and Kevin Torres for violations of Vehicle Code section 2800.2, subdivision (a).⁸ In addition, the prosecution introduced exhibit 165, showing Sheakley was convicted for offenses including unlawfully carrying a loaded firearm in public (§§ 12031, subd. (a)(1); 186.22, subd. (e)(33)),⁹ and evading a police officer in a vehicle (§ 2800.2, subd. (a)). Based on the court's erroneous instructions, Castano argues the jury may have relied on the convictions for evading police in a vehicle when determining the primary activities of VNS, or when finding it engaged in a pattern of criminal activity.

8 Exhibit 96 is a duplicate of exhibit 94; both provide records of conviction of Griego. Based on Corporal Kindorf's testimony it appears the prosecution intended for one of these exhibits to include records of conviction for another individual, Alonzo Hernandez. However, the prosecution failed to do so, instead duplicating Griego's records.

9 Sheakley was convicted of carrying a loaded firearm under former section 12031, subdivision (a). Effective January 1, 2012, section 12031, subdivision (a) was repealed and reenacted without substantive change as section 25850, subdivision (a). (Stats. 2010, ch. 711, § 6.) --------

The test is whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." (Neder v. United States (1999) 527 U.S. 1, 18 (Neder).) We conclude they would have. First, no rational juror should have relied on the conviction records for Griego and Torres because Corporal Kindorf never testified they were VNS gang members. Instead, he testified that Griego was a Norteno gang member who did not identify with a particular subset, such as VNS. Corporal Kindorf was not asked, and did not testify, that Torres was a VNS gang member. Second, as explained above, the evidence was not sufficient to support Corporal Kindorf's opinion Sheakley was a VNS gang member because Corporal Kindorf could not recall if Sheakley had "a VNS-specific tattoo." In sum, the jury should not have considered the conviction records of Griego, Torres, and Sheakley when determining the primary activities of VNS, or its pattern of criminal activity.

Absent the erroneous instruction and the conviction records in exhibits 94, 95, 96 and 165, the jury still had a basis to find Castano guilty of the substantive gang crime and to find true the gang enhancement allegation. As explained above, there was admissible evidence Sean Dunne, Justin Dunne, and Simmons were VNS gang members, and they were convicted of enumerated offenses including voluntary manslaughter, assault, and burglary. There was admissible evidence Castano's murder of Fernando G. was gang related. This evidence was sufficient for the jury to conclude enumerated offenses were among the "primary activities" of VNS, and that it engaged in a "pattern of criminal activity." In other words, the erroneous jury instruction was harmless because "the jury verdict would have been the same absent the error." (Neder, supra, 527 U.S. at p. 17.)

Castano relies on People v. Chiu (2014) 59 Cal.4th 155, 167, to argue "[t]he record fails to establish that the jury necessarily relied on a valid theory." Chiu is distinguishable. In Chiu, the California Supreme Court held an aider and abettor cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine, but can still be convicted of this offense based on direct aiding and abetting principles. (Id. at pp. 166-167.) The jury was instructed on both theories, one of which was invalid. (Ibid.) The record indicated the jury may have relied on the invalid theory because the trial court removed a holdout juror bothered by it. (Id. at p. 168.) Based on this record, the court could not conclude beyond a reasonable doubt the jury based its first degree murder verdict on the valid theory that defendant directly aided and abetted the murder. (Ibid.)

Here, we are not dealing with two theories of guilt, one of which is valid and the other invalid. Instead, the jury instruction on the substantive gang crime listed the primary activities of a criminal street gang, and its pattern of criminal activity, as consisting of one or more of a list of approximately 25 predicate offenses. It was an error to include one of them in the jury instruction because "evading police in a vehicle" is not an enumerated offense. (See § 186.22, subd. (e).) This instructional error is more like the error of omitting or improperly describing an element of the offense, than like the error of presenting an invalid theory of guilt to the jury. In cases where the instructions omit or improperly describe an element of the offense, we ask whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." (Neder, supra, 527 U.S. at p. 18; see People v. Gonzalez (2012) 54 Cal.4th 643, 662-663.)

Here, if the court had not included "evading police in a vehicle" in its list of predicate offenses, then based on the convictions of Sean Dunne, Justin Dunne, and Simmons, and based on the evidence Castano's shooting of Fernando G. was gang related, the jury would still have found VNS engaged in a pattern of criminal activity and that its primary activities involved the commission of enumerated offenses. (Duran, supra, 97 Cal.App.4th at p. 1457 [defining "pattern of criminal activity"]; Sengpadychith, supra, 26 Cal.4th at pp. 323-324 [defining "primary activities"].) We can say "beyond a reasonable doubt that the jury's verdict . . . was not affected by the erroneous instruction." (Pope, supra, 481 U.S. at p. 502.) The error does not require reversal of Castano's conviction for the substantive gang offense or the gang enhancement.

V.

The Sentence Must Be Modified

Castano contends the court erred by sentencing him to an additional 10-year term for the criminal street gang enhancement under section 186.22, subdivision (b)(1)(C), instead of imposing a minimum parole period of 15 years pursuant to section 186.22, subdivision (b)(5). The court sentenced Castano to 25 years to life for first degree murder, a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d), and the court imposed an additional term of 10 years for the criminal street gang enhancement (§ 186.22, subd. (b)(1)(C)).

In People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the California Supreme Court held "first degree murder is a violent felony that is punishable by imprisonment in the state prison for life and therefore is not subject to a 10-year enhancement under section 186.22(b)(1)(C)." (Id. at p. 1004.) The Attorney General concedes the facts here are "nearly identical" to the facts in Lopez, and the Attorney General agrees with Castano that his sentence should be modified to 50 years to life, with a 15-year minimum parole eligibility period. Accordingly, we will require modification of the sentence.

However, pursuant to section 190, subdivision (e), Castano is ineligible for parole before serving a minimum of 25 years in prison. (Nunez, supra, 57 Cal.4th at p. 39, fn. 6.) Therefore, the 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5) will have no practical effect. (People v. Harper (2003) 109 Cal.App.4th 520, 527 ["the 15-year minimum parole eligibility has little effect since it is subsumed in the 25-year minimum parole eligibility imposed for the underlying murder conviction"].) Nonetheless, consistent with the statutory language and the Supreme Court's holding in Lopez, supra, 34 Cal.4th at p. 1004, the sentence imposed must be modified to delete the additional 10-year term, and to impose a minimum parole eligibility period. For this reason, we reverse the judgment but only to the extent of requiring the sentence be modified to delete the additional 10-year term under the gang enhancement. In all other respects we affirm.

DISPOSITION

The judgment is affirmed in part, and reversed in part. The trial court must modify the sentence to 50 years to life, with a 15-year minimum parole eligibility period under Penal Code section 186.22, subdivision (b)(5). To avoid confusion, the modified sentence should also state Castano is ineligible for parole before serving 25 years pursuant to Penal Code section 190, subdivision (e). In all other respects, the judgment is affirmed. We direct the trial court to prepare an amended abstract of judgment showing this modification. We order the trial court to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

/s/_________

Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.