Opinion
H046790
03-15-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMES CRAMER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 211208)
GROVER, J.
This appeal follows defendant James Cramer's retrial on a gang enhancement. The original jury convicted defendant of active gang participation and conspiring to sell methamphetamine for the benefit of a criminal street gang. A different panel of this court reversed the gang enhancement and the substantive gang count due to admission of unduly prejudicial evidence admitted in the first trial. On retrial, the jury found true the gang enhancement. Defendant argues in this appeal that the trial court gave the jury irrelevant instructions about coconspirator statements; that his trial counsel was ineffective for not objecting to prosecutorial misconduct during closing argument; and that changes to the gang enhancement statute compel reversal. Finding any error harmless beyond a reasonable doubt, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
Defendant's first trial occurred in 2008. He was convicted by jury of conspiring to sell methamphetamine (Pen. Code, § 182; Health &Saf. Code, § 11378, subd. (a)) for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)), and actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a); unspecified statutory references are to the Penal Code). In a bifurcated court trial on alleged prior convictions, the trial court found defendant had suffered 16 prior strike convictions (§ 667, subds. (b)-(i)) and three prior serious felony convictions (§ 667, subd. (a)). Defendant appealed and a different panel of this court affirmed the conspiracy conviction, but reversed the gang enhancement and substantive gang count because the trial court had admitted unduly prejudicial gang evidence. (People v. Cramer (Dec. 30, 2016, H034348) [nonpub. opn.].)
On remand, the substantive gang count was dismissed on the prosecution's motion. The matter proceeded to a jury trial solely on the gang enhancement.
A. Trial Evidence
Defendant's appellate issues relate only to a discrete portion of the evidence presented at trial. We therefore provide a truncated summary of the extensive testimony presented to the jury about the conspiracy and criminal street gangs.
1. Nuestra Familia and Defendant's Gang Affiliation
Campbell Police Sergeant Daniel Livingston testified as an expert in criminal street gangs, including Nuestra Familia (NF). He related NF was created in the 1960's to oppose another gang, the Mexican Mafia. NF is a structured, hierarchical organization, with three categories of members. The organization has a written constitution, which includes guidelines about how members are to operate both in and out of prison. NF leadership is housed at Pelican Bay state prison. Sergeant Livingston described the symbol for NF as a "sombrero with a dagger through it with three drops of blood coming off it." They also identify with the color red, the number 14; the Spanish words "Norte" (north) and "Norteno" (northerner); and the Spanish letter "ene." NF members are expected to remain in the organization for life. NF members may be referred to within the organization as "carnals" or "Cs." They often use code names, sometimes female names, to refer to one another in written communications. Selling controlled substances, including methamphetamine, is one of the primary NF activities.
NF created Nuestra Raza (NR) as a subgroup from which NF could recruit members. NR provides support to NF members in the mainline sections of prisons. Below NR members are Norteno criminal street gang members. NF members have complete authority over NR and Norteno street gang members.
Livingston testified that NF stripped NR of the NR name at some point, leading NR members to refer to themselves as Nortenos and street-level Nortenos to refer to themselves as Northerners. We will use the original organizational names to prevent confusion.
Because the highest-ranking NF members are incarcerated, they communicate directives via kites (small, concealed strips of tightly rolled paper) and letters. Members use "microwriting" to use all available space on kites. Members also communicate over the phone, using code words and three-way calls to try to evade law enforcement interception.
An individual who falsely claims to be an NF member is likely to be targeted for assault. If a member does something against the interests of the organization, he is placed on a "bad news" or "greenlight" list. NF members in good standing are supposed to assault or kill individuals on the bad news list if they encounter them. If an NF member is asked to kill for the organization, he is expected to do so without question.
NF members are expected to commit crimes for the organization upon release from prison. Street regiments are the "arm of the organization on the street," and are structured with a commander (who is usually an NF member), a second in command, and then members and associates below them. Regiments generate money for NF and its incarcerated members. Drug sales are a main source of street regiment income. Regiments are expected to send 25 percent of proceeds to incarcerated members of the organization. Regiment members are also individually required to pay $200 to $250 per month in dues. NF will often "front" drugs to regiments to sell. The fear of violence by the organization ensures that those debts are repaid. Regiment commanders are ultimately responsible for the cost of any drugs fronted to the regiment.
2. Evidence of Defendant's Conspiracy Conviction
Sammy Ramirez, an NF dropout, testified for the prosecution. Ramirez testified about operating an NF regiment selling methamphetamine in Santa Clara County starting in 2005. Ramirez identified defendant as an NF member. Ramirez indicated that defendant started a separate NF regiment in the county the same year. Defendant's regiment was less productive than other regiments.
Sergeant Livingston testified about interpreting coded language in documentary evidence and jail calls that led to defendant's conspiracy conviction. He was contacted by the Campbell Police Department in January 2007 about documentary evidence collected in a search of the home of an NR member named Jeremy Paigly. The evidence appeared to be pay/owe sheets, writing about NF, and a document containing a list of names and apparent aliases. Livingston opined that it was a roster for defendant's regiment. First on the list was "Jaime" and "Sarah," which Livingston testified referred to defendant. Next on the list was Rhino, which Livingston testified referred to Jeremy Paigly. Livingston testified that Paigly was an NR member and the second in command of defendant's regiment. Others on the list included "Chone," identified by Livingston as NR member Damian Mendez; "Shorte," identified by Livingston as NR member Ronald Wreath; and "Syces," identified by Livingston as NR member Paul Rios. Another document refers to "Shell," whom Livingston identified as regiment associate Shelby Thornhill. Based on that evidence, Livingston obtained recordings of jail calls from several people he expected were associated with the regiment.
Over 30 jail calls were admitted into evidence and played for the jury, with Livingston interpreting coded language used. The calls were made between January and March 2007. Many related to efforts to collect debts. In addition to calls made directly by defendant, several were initiated by other individuals that Livingston identified were members or associates of defendant's regiment. Livingston explained it is common for NF members to have subordinates make phone calls for them to evade scrutiny from law enforcement. Livingston interpreted a call between Paigly and Thornhill as Paigly referring to regimental debts and asking Thornhill to assist him with collections. Paigly informed Thornhill," 'It's not my money, other than the $300.'" Livingston opined that Paigly was "explaining it's organizational money" belonging to NF.
Two specific debts were the subject of multiple calls: $750 owed by Eric "Listo" Burns; and $800 that Livingston opined was owed by Paul Rios. Burns called his mother about his debt multiple times, instructing her to send money to Alysia Silva. (Livingston identified Silva as a regiment associate defendant tasked with collecting debts.) Livingston testified that during a call between Luis Rodriguez and Silva, Rodriguez appeared to be reading directives written by defendant. There was a reference in that call to $800 needing to be sent to" 'three of her own,'" which Livingston interpreted as a directive for $800 to be sent to three NF members. Rodriguez told Silva that the money needed to be sent or" 'else one of Sylvia's troubled children will miss their birthday,'" which Livingston interpreted as meaning that "somebody associated [with defendant's] regiment is going to be put in bad standing with the organization." Livingston opined the $800 debt was owed by Paul Rios to get back into good standing with NF, and that the $750 debt owed by Burns was being used to cover some of the Rios debt.
John Mendoza, an NF dropout, testified for the prosecution. Cramer entered the county jail while Mendoza was in custody. He overheard Cramer talking to Rudolfo Miramontes at the jail about regiment debts and efforts to collect them. Mendoza testified that he heard Cramer tell Miramontes that Burns owed money. Mendoza heard Miramontes respond that he would help collect the debt. Mendoza identified the following members or associates of defendant's regiment as NR members: Paigly, Mendez, Wreath, Rios, Burns, and Joshua Morreira.
Evidence of money orders sent to three individuals was admitted into evidence: Miramontes, Antonio Guillen, and Victor Esquibel. Livingston opined that the money orders were payments on behalf of defendant's regiment. According to Livingston, those three NF members were paid because Guillen was the NF member in charge of all NF regiments statewide, Miramontes was the NF member running the Santa Clara County jail, and Esquibel was likely defendant's primary NF contact while defendant was previously incarcerated at Pelican Bay.
3. Evidence of Predicate Offenses
The trial court admitted evidence of two earlier prosecutions of NF regiments for conspiring to sell methamphetamine for the benefit of criminal street gangs, which resulted in several convictions.
We construe defendant's unopposed motion to augment the record to include the trial exhibits containing the indictments and certified records of conviction as an unopposed notice of designation under California Rules of Court, rule 8.224.
The first of those two indictments involved an NF regiment commanded by John Mendoza, who testified for the prosecution at defendant's trial. The 48-count indictment named 12 defendants. Count 1 alleged a conspiracy to sell methamphetamine for the benefit of a criminal street gang between January 2004 and April 2005. Certified records of conviction that included gang enhancements as to count 1 were admitted into evidence for eight individuals: John Mendoza, John Santa Ana, Roger Carranza, Arthur Hernandez, Luis Jose Perez, Martin Martinez, Eric Zarate, and Joe Abeyta. Some of the individuals were also convicted of other crimes.
John Mendoza testified that he became an NF member around 1994 after working his way up from criminal street gangs. He operated an NF regiment in Santa Clara County in 2004, which led to the 48-count indictment introduced into evidence. His regiment was earning about $30,000 per month in profit before the indictment. Mendoza sent 25 percent of the profits to NF, plus dues of $200 per month per regiment member. Mendoza identified coconspirators Martin Martinez and Joe Abeyta as NR members. Gang expert Sergeant Livingston classified Arthur Hernandez and Eric Zarate as NR members. Livingston indicated Louis Jose Perez was a street-level Norteno gang member. Livingston classified Santa Ana and Carranza as regiment associates.
The other indictment and associated convictions admitted into evidence involved an NF regiment that included Sammy Ramirez, who also testified for the prosecution at defendant's trial. The 43-count indictment named 20 defendants. Count 2 alleged a conspiracy to sell methamphetamine for the benefit of a criminal street gang between January 2002 and December 2008. Certified records of conviction that included gang enhancements as to count 2 were admitted into evidence for three individuals: Charlie Campa, Rudolfo Miramontes, and Sammy Ramirez. Marco Abundiz was convicted of the conspiracy without a gang enhancement. Some of the individuals were also convicted of other crimes.
Sammy Ramirez testified that he became an NF member in 1996 after working his way up from criminal street gang activity. One of the NF leaders, Antonio Guillen, instructed Ramirez to start an NF regiment in Santa Clara County upon his release from prison in 2005. Ramirez operated a regiment selling methamphetamine in Santa Clara County starting in 2005, which was part of the 43-count indictment admitted into evidence. He obtained methamphetamine from NF member Charlie Campa and gave proceeds to Campa monthly. Campa would then transmit the money to the NF organization. Ramirez identified Campa and Miramontes as NF members. Ramirez identified Abundiz as a Norteno.
B. Verdict and Sentencing
The jury found the gang enhancement true. Defendant was sentenced to an indeterminate term of 43 years to life in prison, consisting of 25 years to life for conspiring to sell methamphetamine as a third strike offense (§§ 182; 667, subds. (b)-(i); 1192.7, subd. (c)(28)); 3 years consecutive for the gang enhancement (§ 186.22, subd. (b)(1)(A)); and 15 years consecutive for three prior serious felony convictions (§ 667, subd. (a)).
II. DISCUSSION
A. Amendments to the Gang Statute (Assem. Bill No. 333)
Defendant argues he is entitled to benefit from ameliorative changes to section 186.22 enacted since his trial. The Attorney General concedes that those changes apply to defendant under the rule of In re Estrada (1965) 63 Cal.2d 740. But the Attorney General contends reversal is inappropriate because any deviation from the current law is in this case harmless beyond a reasonable doubt.
The jury was instructed on section 186.22 as it existed at the time of defendant's trial on the gang enhancement. An instruction defined "criminal street gang" as "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 sale of methamphetamine, possession of a firearm by a felon, and/or possession of a dangerous or deadly weapon; [¶] AND [¶] 3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity." "[P]attern of criminal gang activity" was defined for the jury as "1. The commission of, attempted commission of, or conspiracy to commit, or conviction of any combination of two or more of the following crimes: sale of methamphetamine, possession of a firearm by a felon, and/or possession of a dangerous or deadly weapon; [¶ 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 jury was instructed that the crimes that establish a pattern of criminal gang activity need not have been gang-related, and that defendant's conspiracy conviction in the current case could be used as a predicate offense.
The prosecutor argued in closing that the pattern of criminal activity element was "actually proved up by the facts" of defendant's conspiracy conviction because five defendants were convicted. But the prosecutor continued that "we can go beyond that" because the certified records of conviction for several individuals from the Mendoza and Ramirez indictments had also been admitted into evidence.
Defense counsel did not contest the existence of the Nuestra Familia gang during closing argument. Counsel argued that defendant was selling drugs for himself and therefore was "not doing it for the benefit of, at the direction of, or associated with a criminal street gang."
1. The Jury Instructions Are Inconsistent with Amended Section 186.22
Assembly Bill No. 333 (2021-2022 Reg. Sess.) amended section 186.22 in several substantive areas. (Stats. 2021, ch. 699, § 3.) It changed the definition of a "criminal street gang" in section 186.22 to require collective (as opposed to individual) criminal acts forming "a pattern of criminal gang activity" by gang members. (§ 186.22, subd. (f).) It similarly narrowed the "pattern of criminal gang activity" used to establish predicate offenses by requiring that "(1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity" not include the currently charged offense. (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran); § 186.22, subd. (e)(1), (2).) And it "narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.' (§ 186.22, subd. (g).)" (Tran, at p. 1206.)
The parties agree that the jury instructions were accurate when provided, but they did not reflect the elements of the gang enhancement as it now exists after Assembly Bill No. 333. The prosecutor's closing argument was similarly inconsistent with the current law. For example, the prosecutor argued the jury could use defendant's conspiracy conviction in this case as a predicate offense, which is no longer permissible under section 186.22 as amended.
2. The Error is Harmless Beyond a Reasonable Doubt
The Supreme Court recently confirmed that because the error implicates defendant's federal constitutional right to a jury trial, we review this error for prejudice under Chapman v. California (1967) 386 U.S. 18. (Tran, supra, 13 Cal.5th at p. 1207.) Under that standard, we review whether it is clear beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Quartermain (1997) 16 Cal.4th 600, 621.) "In other words, the alleged error must be 'unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.'" (People v. Low (2010) 49 Cal.4th 372, 392-393.) "[T]he appropriate inquiry is 'not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.'" (Quartermain, at p. 621.)" 'One situation in which instructional error removing an element of the crime from the jury's consideration has been deemed harmless is where the defendant concedes or admits that element.'" (People v. Merritt (2017) 2 Cal.5th 819, 831.)
Defendant did not contest the existence of NF; instead he argued to the jury that his participation in the conspiracy was not for the benefit of the organization. In his opening brief in this court (filed before Assembly Bill No. 333 was enacted) defendant similarly acknowledged "there was no dispute in this case that [defendant] was a member of Nuestra Familia." That acknowledgement is understandable in light of the overwhelming evidence presented to support the gang enhancement. The evidence involved Nuestra Familia itself, not a minor gang subset whose existence was contested. The jury heard a great deal of evidence about NF, from a gang expert as well as two NF dropouts (Mendoza and Ramirez). The substantial testimony pertained to NF generally, including the role of street regiments in generating money for the organization. The testimony also pertained specifically to two conspiracies to sell methamphetamine that were introduced as predicate offenses.
Mendoza testified about running an NF regiment in Santa Clara County. He was indicted along with several codefendants for activities from January 2004 to April 2005, leading to the convictions of Mendoza and seven others for conspiring to sell methamphetamine with gang enhancements. Mendoza and five codefendants were identified as gang members by either Mendoza himself or the gang expert; the remaining two were identified as associates. Ramirez testified about running his own NF regiment in Santa Clara County. He was indicted along with 19 codefendants for activities from January 2002 to December 2008, leading to the convictions of Ramirez and three others for conspiring to sell methamphetamine. Three of the four were identified as NF members by Ramirez or Livingston, and the fourth was identified as a street-level Norteno.
The foregoing evidence established the existence of Nuestra Familia under section 186.22, as amended by Assembly Bill No. 333. The date range for the last predicate offense (the Ramirez conspiracy) occurred within three years of the date range for the prior predicate offense (the Mendoza conspiracy) and within three years of the date range of the charged conspiracy. Each predicate offense was committed by two or more gang members. And the offenses benefited NF by providing financial support to the organization. Under the unique circumstances of this case-which included detailed testimony about the predicate offenses by individuals who were convicted of those offenses-we find the error harmless beyond a reasonable doubt.
Defendant's arguments to the contrary are unpersuasive. He argues there is a "virtual certainty that at least one juror ... chose the current offense as one of the predicate offenses" because the prosecutor instructed the jurors that they could do so. But defendant did not contest the existence of NF at trial, instead arguing that his actions did not benefit the gang.
Defendant argues the temporal requirements of amended section 186.22 would not be satisfied if jurors relied on certain crimes included in the predicate offense indictments. But he focuses on the crimes alleged in the indictments rather than the convictions that were actually achieved. And the main convictions focused on by the prosecution-the Mendoza and Ramirez drug conspiracies-meet the amended statute's temporal requirements.
Defendant also argues that not every individual indicted in the Mendoza and Ramirez drug conspiracies were gang members. Again, the proper focus is on convictions rather than all individuals mentioned in the indictments. And the evidence before the jury indicated the vast majority of the individuals convicted of conspiring to sell drugs for the benefit of Nuestra Familia were gang members. Of the eight individuals convicted in the Mendoza conspiracy, six were identified as gang members (either NF, NR, or Norteno) and two were identified as associates; all four individuals convicted in the Ramirez conspiracy were identified as gang members.
Given the foregoing evidence, we find the error harmless beyond a reasonable doubt under the unique circumstances of this case.
B. Jury Instructions on Coconspirator Statements
Defendant argues the trial court improperly instructed the jury based on CALCRIM Nos. 418 and 419 because those instructions were irrelevant and "imported principles of derivative and vicarious liability in conspiracy law." As the issue presents a pure question of law, we will consider this claim despite defendant's failure to object at trial. (People v. Olivas (2016) 248 Cal.App.4th 758, 772 (Olivas); § 1259.)
The prosecution moved in limine to admit certain hearsay statements of defendant and his coconspirators. The court ruled "witnesses can testify about statements concerning [defendant], and it sounds like there's going to be evidence that is sufficient to show that there's this conspiracy and that he's part of the conspiracy of NF to sell meth and to be involved in criminal activities."
Based on CALCRIM No. 418, the jury was instructed: "In deciding whether the People have proved that the gang allegation is true as to the defendant, you may not consider any statement made out of court by any person other than the defendant unless the People have proved by a preponderance of the evidence that: [¶] 1. Some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made; [¶] 2. The person was a member of and participating in the conspiracy when he or she made the statement; [¶] 3. The person made the statement in order to further the goal of the conspiracy; [¶] AND [¶] 4. The statement was made before or during the time that defendant was participating in the conspiracy. [¶] A statement means an oral or written expression, or nonverbal conduct intended to be a substitute for an oral or written expression. [¶] Proof by a preponderance of the evidence is a different standard of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] You may not consider statements made after the goal of the conspiracy had been accomplished." Based on CALCRIM No. 419, the jury was instructed: "The defendant is not responsible for any acts that were done before he joined the conspiracy. [¶] You may consider evidence of acts or statements made before the defendant joined the conspiracy only to show the nature and goals of the conspiracy. You may not consider any such evidence to prove the gang allegation is true as to the defendant before he joined the conspiracy." Defendant did not object to those instructions.
1. The Instructions Were Relevant
A trial court in a criminal case must instruct the jury, sua sponte, "on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) If the admissibility of a piece of evidence is dependent on the existence of one or more foundational preliminary facts, the trial court "[m]ay, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist." (Evid. Code, § 403, subd. (c)(1).)
Much of the evidence supporting the gang enhancement here was in the form of hearsay statements by individuals who were defendant's alleged coconspirators. The jury heard dozens of jail calls and were presented with items written by individuals other than defendant that were obtained in searches of residences allegedly connected with defendant's regiment. Contrary to defendant's argument that the instructions "had no legal bearing on the gang allegation," CALCRIM Nos. 418 and 419 were relevant to instruct the jury about the admissibility and proper use of those hearsay statements. The instructions in fact aided defendant by explaining that the hearsay statements could be used only for specific purposes and only in limited ways relative to defendant's actual participation in the conspiracy.
Defendant appears to argue that CALCRIM No. 418 was not relevant because the court had already determined the legal question of admissibility of a coconspirator's hearsay statements (Evid. Code, § 1223 [hearsay exception for coconspirator statements]), and defendant had already been convicted of the conspiracy. But the trial court stated on the issue raised in limine that "it sounds like there's going to be evidence that is sufficient to show that there's this conspiracy," suggesting it had not conclusively decided the issue of admissibility. Evidence Code section 403, subdivision (c)(1) specifically vests the court with discretion to allow the jury to decide whether any required foundational facts had been shown. CALCRIM No. 418 was also relevant to make clear that hearsay statements by others could be considered only if the jury found the declarant was part of the conspiracy-defendant's conspiracy conviction did not automatically render other individuals part of the conspiracy. We see no abuse of discretion in the trial court's decision to instruct the jury using CALCRIM No. 418.
2. It is Not Reasonably Likely the Jury Misapplied the Instructions
Defendant contends the challenged instructions created a substantial risk of misleading or confusing the jurors by "inject[ing] into the jury's consideration a principle whereby [defendant] could be held responsible as a matter of law for statements of other gang members in his own and in other Nuestra Familia conspiracies, when the only issue to be decided was his intent to promote or benefit Nuestra Familia in his methamphetamine sales." "When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.) Our review is de novo. (Olivas, supra, 248 Cal.App.4th at p. 772.)
As we have already discussed, both challenged instructions benefitted defendant by limiting the jury's use of coconspirator hearsay statements. CALCRIM No. 418 instructed the jurors not to consider any hearsay statements by alleged coconspirators unless the jurors found by a preponderance of evidence that the foundational facts existed. CALCRIM No. 419 instructed the jury that defendant was not responsible for acts before he joined the conspiracy and that it could not "consider any such evidence to prove the gang allegation is true as to the defendant before he joined the conspiracy."
Defendant argues it is reasonably likely the jury interpreted those instructions to mean that "conspiratorial acts can be imputed to defendant to create ... derivative liability for the gang allegation, specifically a derivative and vicarious replacement for the specific intent to benefit and promote the gang." He contends a reasonable juror would read the instructions as implying that the "acts and statements of any or all coconspirators during [defendant's] participation in the underlying crime is material to prove the gang enhancement - when in fact it is not." But the jury was properly instructed as to the specific intent necessary for the gang enhancement, requiring proof beyond a reasonable doubt that "defendant intended to assist, further, or promote criminal conduct by gang members." Nothing in the challenged instructions modified the required mental state. No reasonable juror would understand the challenged limiting instructions as negating the required mental state or modifying it to include derivative or vicarious concepts. The challenged instructions merely described how hearsay statements could be used in deciding whether the gang enhancement was true.
Because we find the challenged instructions were relevant and were not reasonably likely to confuse the jury, trial counsel's performance was not deficient for not objecting. (People v. Ochoa (1998) 19 Cal.4th 353, 463 (Ochoa) [no ineffective assistance when attorney does not make a meritless objection].) And because we find the instructions did not suppress or obscure the mental state element of the gang enhancement, defendant's federal constitutional argument also fails.
C. The Prosecutor'S Closing Argument
Defendant argues his trial counsel was ineffective for not objecting to an alleged misstatement of law by the prosecutor during closing argument. To establish ineffectiveness in violation of the right to counsel under the Sixth Amendment to the United States Constitution, a defendant must show both a deficiency in counsel's performance and a prejudicial effect of the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
The prosecutor commented in closing argument about the mental state required to prove the gang enhancement: "So when you go to the specific intent - and I'm going to go back to that third element, that the crime was done to assist in criminal conduct by gang members. The law does not require that I prove that the defendant specifically intended to assist a gang. What the law says, that the law requires that the specific intent to assist in any criminal conduct by gang members. In other words, I don't have to prove that the beneficiary of the criminal act was the Nuestra Familia. If I can prove that the defendant, in his crime, committed it with the intent to assist in any criminal conduct by gang members, then that's enough to support that third element."
Defendant argues the prosecutor misstated the law in that the mental state required for the gang enhancement is an intent to benefit a gang, not merely gang members. Defendant's position is contrary to both the plain language of the statute and Supreme Court cases applying it. Section 186.22, subdivision (b)(1) defines the enhancement as applying to any "person who is convicted of a felony committed 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 criminal conduct by gang members." The foregoing has been described as having two prongs: the first requires the felony to have been committed for the benefit of, at the direction of, or in association with a criminal street gang; the second requires that the defendant committed the "gang-related felony 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Albillar (2010) 51 Cal.4th 47, 64 (Albillar).)
The Supreme Court recently emphasized in People v. Renteria (2022) 13 Cal.5th 951 (Renteria) that gang members are the proper focus of the gang enhancement's mental state requirement. Renteria considered the "showing the prosecution must make to establish that Penal Code section 186.22 gang enhancements or penalties apply to a crime committed by a gang member who acts alone." (Renteria, at p. 957.) The court confirmed the statute "requires proof that the defendant committed the underlying felony (1) for the benefit of the gang, and (2) with specific intent to promote, further, or assist the criminal conduct of gang members." (Id. at p. 965.) Focusing on the intent element, the court identified two features as being particularly relevant in lone-actor prosecutions. "First, the specific intent to aid the criminal activities of a gang's members implies knowledge of the nature of at least some of those activities." (Ibid.) "Second, the statute refers to the intent to promote 'criminal conduct by gang members' (§ 186.22(b)(1), (4), italics added), the most natural reading of which means the promotion of criminal conduct by more than one member of the gang ([citation])- which, in a lone-actor case, necessarily means the promotion of conduct other than the commission of the underlying felony." (Id. at pp. 965-966.) The court concluded that in lone-actor prosecutions, the prosecution must demonstrate an intent to promote criminal activity by gang members other than the activity at issue in the charged offense. (Id. at p. 966.) That the specific intent is to promote criminal conduct by gang members was thus crucial to the conclusion in Renteria.
Defendant points to language in other Supreme Court opinions that he contends supports his argument that the required specific intent is to benefit a gang rather than gang members. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138 [lead opinion of Corrigan, J.] ["The enhancement under section 186.22(b)(1) punishes gang-related conduct, i.e., felonies committed with the specific intent to benefit, further, or promote the gang."]; People v. Sanchez (2016) 63 Cal.4th 665, 698-699 ["evidence of defendant's membership and commission of crimes in Delhi's territory bolstered the prosecution's theory that he acted with intent to benefit his gang, an element it was required to prove."]; People v. Valenzuela (2019) 7 Cal.5th 415, 420, fn. 3 [gang "enhancement 'punishes gang-related conduct, i.e., felonies committed with the specific intent to benefit, further, or promote the gang.' "].) But read in context, each reference was merely shorthand for the gang enhancement and did not purport to provide a comprehensive definition of the statutory requirements. Where the Supreme Court has interpreted the gang enhancement's required mental state in depth-as in Albillar and Renteria-it has consistently adhered to the statutory language requiring a "specific intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1); Albillar, supra, 51 Cal.4th at p. 64; Renteria, supra, 13 Cal.5th at p. 965.)
Defendant contends his interpretation is supported by Assembly Bill No. 333's amendments to section 186.22. But Assembly Bill No. 333 did not materially change the mental state element of the gang enhancement. Defendant points to the addition of section 186.22, subdivision (g), which states that "to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational." He notes the Legislature included "benefit" in the same list as "promote, further, or assist" even though those items are separately listed in the first and second prongs, respectively, of the gang enhancement. From this, he speculates that the Legislature "has either confirmed its understanding of the previous law or has conferred a new understanding on (b)(1), departing from [Albillar]." We interpret the new subdivision as making reputational benefit categorically inapplicable to any part of the statute, without otherwise changing the elements of the gang enhancement.
D. No Cumulative Prejudice
As we have found only one independently harmless error, there is no other error to accumulate and defendant's cumulative prejudice claim fails.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Greenwood, P. J., Lie, J.