Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 02CF2160, Frank F. Fasel, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Freddy Alfredo Curiel appeals from a judgment after a jury convicted him of special circumstance first degree murder and street terrorism, and found true allegations he committed the murder for the benefit of a criminal street gang and he was a gang member who vicariously discharged a firearm causing death. Curiel argues: (1) the trial court erroneously permitted the district attorney to amend the information to include a previously dismissed street terrorism enhancement; (2) the court erroneously denied his motion for acquittal on one of two murder counts; (3) the court erroneously admitted three pieces of evidence; (4) there were two instructional errors; (5) the special circumstance applies only to “actual killers” and not aiders and abettors, and the finding was supported by insufficient evidence; (6) the court’s imposition of a security fee violated federal and state ex post facto principles and Penal Code section 3; and (7) he was prejudiced by the cumulative effect of these errors. Although we agree with one of Curiel’s evidentiary claims and one of his instructional error claims, we conclude he was not prejudiced. None of his other contentions have merit, and we affirm the judgment.
FACTS
Murder of Andres Cisneros
Late one summer evening, Guillermina Alvarez was sitting outside her home when she saw 55-year-old Andres Cisneros park his car near his home and get out. Two Hispanic males in a blue car drove by and yelled, “‘You fucking old man, you better get out of the way[,]’” and “‘Hey, old man, you better fucking watch it[.]’” Cisneros looked away, the men laughed and drove away, and Cisneros went inside. Approximately one-half hour later, Cisneros was getting something from his car when the men drove by again and yelled, “‘Fucking old man, you better get out of the way.’” Cisneros did not respond and went inside.
A few hours later, early the next morning, George Alvarado was driving his car when he saw two men “arguing or fighting.” After Alvarado drove past the men, he heard a gunshot, looked in his rear view mirror, saw a man fall, saw the other man pick something up off the ground, and made a U-turn. Alvarado saw a white two-door Nissan on the east side of the street heading north. The man, wearing a black or blue and gray checkered shirt, black or blue pants, and a beanie, got into the car, and the driver made a U-turn and headed south. Alvarado saw two people in the car as he drove past them before making another U-turn to try to get the car’s license plate number. Unsuccessful, he returned to the area where the man lay dying and called 911 from a nearby store. Other than the clothing of the passenger, he could not describe either man. Cisneros died from a gunshot wound to the abdomen.
Murder of Cesar Tejada
Less than one-half hour later, and approximately one and one-half miles away from where Cisneros was shot, Cesar Tejada, Raul Ramirez, Lupe Olivares, Griselda Alfaro, Jeffrey (Jeff), and another man were standing in front of Tejada’s apartment socializing and drinking. Two men, one dressed in black and wearing a beanie (later identified as Curiel), and the other wearing a checkered shirt (later identified as Abraham Hernandez), angrily stared at them as they walked towards a nearby 7-Eleven. Ramirez went inside to use the restroom and went back outside.
The record did not provide a last name for Jeffrey.
When Ramirez went outside, the two men who had walked by were there, and Curiel was arguing with Tejada. Curiel asked Tejada, “‘Where are you from?’” Tejada replied, “‘I am from nowhere[.]’” Ramirez told the men to leave because they did not live there. Curiel said, “‘Shut the fuck up, get the hell out of here[,]’” and “‘This is not your problem, it is not your business.’” Olivares and Curiel argued. Hernandez pulled out a gun and pointed it at Jeff and chased him. Hernandez began arguing with Tejada and shot him at very close range. The men fled, and Ramirez went inside and called 911. Tejada died from a gunshot wound to the chest.
At Hernandez’s trial in November 2005, Ramirez testified it was Hernandez who asked Tejada where he was from.
A police report indicated Ramirez said it was Hernandez who told him to “‘shut the fuck up[.]’”
The Aftermath
Officer David Rondou and another officer interviewed Olivares at the police station approximately four hours after the shooting; she did not appear to be drunk or high. The interview was tape recorded. Olivares identified Curiel from a 7-Eleven security videotape and photographs as the second man who was present and did not shoot the gun. Olivares said the six of them were outside when two men, one of whom she recognized from the neighborhood, returned from 7-Eleven and started “mad-dog[ging]” Tejada. They asked Tejada “what the fuck are you looking at?” and “where he was from[?]” Tejada said this was his house and told them to go home. The man got angry and pushed Tejada, and Tejada pushed him back. Ramirez tried to defend Tejada by grabbing the man’s shirt and pushing him over a shopping cart lying on its side. The man she recognized started arguing with Ramirez. Olivares said this is not your neighborhood, and the man she recognized yelled it was his neighborhood and “OTH.” The other man pulled out a gun from his waistband and shot Tejada. The men ran away. Olivares said she saw the incident happen clearly right in front of her.
The audiotape was played for and transcripts of the interview were provided to the jury.
Later that morning, an officer arrested Curiel at his home approximately one mile away from where Tejada was shot and transported him to the police station. Officer Steven Lodge and another officer interviewed Curiel, and the interview was audio and videotaped. After being advised of his Miranda rights, Curiel said he was at a party until midnight, went to his ex-girlfriend’s house who was not home at 12:30 a.m., and then went home. When Lodge confronted Curiel with the video, he continued to deny any knowledge of the incident.
A DVD of the interview was played for and transcripts of the interview were provided to the jury.
Miranda v. Arizona (1966) 384 U.S. 436.
The following month, Rondou participated in a probation search of Andrew Lopez’s home. Officers found a letter from Curiel that was written from jail. Curiel was booked, and he called his sister, Lisa Curiel (Lisa). The telephone call was recorded. Curiel told her “something . . . happened yesterday,” and Lisa asked him whether he was there. Curiel responded, “Well, well yeah I was there. That’s why, that’s why they have me.” Lisa repeatedly told Curiel to not say anything and that her mom was going to get him a lawyer.
The compact disc of the telephone conversation was played for and transcripts of the conversation were provided to the jury.
Procedural History and Trial
An amended information charged Curiel with the murder of Cisneros (Pen. Code, § 187, subd. (a)) (count 1), the murder of Tejada (§ 187, subd. (a) (count 2), and street terrorism (§ 186.22, subd. (a)) (count 3). As to counts 1 and 2, the information alleged Curiel committed multiple murders. (§ 190.2, subd. (a)(3).) The information also alleged Curiel committed counts 1 and 2 for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Finally, as to count 2, the information alleged Curiel was a gang member who vicariously discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)), and he intentionally killed Tejada to further the criminal street gang’s activities (§ 190.2, subd. (a)(22)).
All further statutory references are to the Penal Code, unless otherwise indicated.
The original information had charged Curiel and Hernandez, but their trials were severed.
At trial, the district attorney offered Olivares’s testimony. On direct examination, Olivares testified she was in custody for failure to appear. As she did in another case, Olivares stated she was “drunk and . . . high” and did not remember what happened. Olivares answered “no” to numerous questions, including whether she saw the two men “mad-dog[ging]” their group, whether she saw the man shoot Tejada, and whether she identified Curiel to the police. On cross-examination, Olivares testified she did not see who shot Tejada, but she explained it was Hernandez who started the confrontation with Tejada, and Curiel told Hernandez to “chill out.” On redirect-examination, Olivares admitted she previously testified in another case that when she came out, Tejada had already been shot and she was drunk and high and did not remember anything.
The district attorney offered the testimony of Officer Otto Laufer. Laufer testified he responded to the shooting and spoke with Olivares. Laufer said Olivares responded to his questions, appeared to be alert and aware of her surroundings, and did not appear to be drunk or high.
A forensic firearm and tool mark examiner testified the bullet extracted from Cisneros and the bullet extracted from Tejada were fired from the same gun.
Finally, the district attorney offered the testimony of Lodge, a gang expert. After detailing his background, training, and experience, Lodge testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs. He explained how turf-oriented gangs claim a particular location and do not like non-gang members in their territory. He stated how the concept of respect is the “life blood” of gangs, and gang members instill fear in their communities. He also said gang members are expected to back up each other or there will be consequences.
Over objection, Lodge testified concerning the importance of guns in gangs and that based on his training and experience with criminal street gangs, “if there is a gun within a group, that it is expected that everybody knows if there is a gun and who has it.” Lodge stated that he was familiar with a gang called “On The Habit,” or “OTH” (OTH), which was a turf-oriented gang located in the City of Santa Ana. During Lodge’s testimony, the parties stipulated OTH was a criminal street gang within the meaning of section 186.22. Lodge said the areas where Cisneros and Ramirez lived were both in OTH territory.
Based on his review of police reports, witness statements, Hernandez’s statement to police concerning this incident, correspondence between Hernandez and Curiel while in custody where they referred to each other as “homies,” and Hernandez’s trial regarding these incidents, Lodge opined Hernandez was a member of OTH with a moniker of “Clumsy” at the time of these incidents. Again, during Lodge’s testimony, the parties stipulated Curiel was an active member of OTH with a moniker of “Champ” at the time of the incidents. During his investigation, Lodge did not find any evidence Cisneros or Tejada were gang members.
Based on a hypothetical mirroring the facts of the Cisneros shooting, Lodge opined the shooting was done for the benefit of, at the direction of, and in association with that criminal street gang, and to promote, further, and assist the criminal conduct of that criminal street gang. Based on a hypothetical mirroring the facts of the Tejada shooting, Lodge opined the shooting was done for the benefit of, at the direction of, and in association with that criminal street gang, and to promote, further, and assist the criminal conduct of that criminal street gang.
Curiel offered the testimony of Officer Gustavo Moroyoqui, who interviewed Ramirez near his apartment. Ramirez told him he was walking when he saw two men arguing with Tejada, but he could not understand them because they were arguing in English. Ramirez told them to stop arguing, and one of the men pulled out a gun, and he ran away and heard one gunshot. When he returned a few minutes later, he saw Tejada lying on the ground.
Curiel also offered the testimony of Officer Fidencio Zepeda, who interviewed Ramirez at the police station. Ramirez told him that he walked away from his friends to retrieve a beer can that was on the sidewalk when he saw two men walking towards the 7-Eleven. Ramirez did not tell him the men said anything or “mad-dogged” him. When he returned approximately 15 minutes later, the two men were arguing with his friends in English. Ramirez told the men to leave, and one of the men told him to, “‘Shut the fuck up[,]’” pulled out a gun and pointed it at the group. Tejada grabbed Jeff and used him as a shield. The other man told Ramirez “the problem” was with Tejada and not him. Ramirez heard one gunshot, fled, and returned to find Tejada on the ground.
Curiel offered the testimony of Felix Barrera who lived near where Tejada was shot. Barrera testified he heard one gunshot and looked outside. He saw two men running down the street and one of them excitedly or surprisingly said, “‘You killed him.’” Barrera’s wife, Nancy Reyes, testified she heard one gunshot and a man say, “‘You killed him, you killed him.’” She disagreed that the man sounded surprised.
Curiel offered the testimony of defense investigator Martin Dante. He testified it took between four and seven minutes to drive from where Cisneros was shot to Robles’s house following the route testified to by Ramirez. He stated it took approximately four minutes to walk from Robles’s house to the 7-Eleven, and less than one minute to walk from the 7-Eleven to where Tejada was shot.
Finally, Curiel testified on his own behalf. Curiel met Felix Robles when he was five or six years old and met Eric Jimenez when he was a teenager. Jimenez called him “Champ” because they danced together and Curiel won competitions. Curiel began skating and dancing with Robles when he got older. Curiel stated he did not have a driver’s license or own a car, but he once had a learner’s permit and knew how to drive. The afternoon before the incident, Curiel rode his bicycle to Robles’s house and “hung around” until Hernandez arrived; Curiel had met him twice. They smoked marijuana. Curiel decided to walk to 7-Eleven, and Hernandez asked if could join him. As they walked to 7-Eleven, they saw Olivares with some other people. Hernandez asked Curiel who they were, and Curiel said they were from the neighborhood. They proceeded to 7-Eleven, and then headed home.
As they approached Olivares’s group, Hernandez separated from Curiel, crossed the street, and approached Tejada; Ramirez was not there. Curiel followed him. Hernandez spoke to Tejada, who nodded in a “no” motion, and then said something to Olivares. Tejada said, “‘You are making the area hot[,]’” and “‘You can’t be coming around here.’” Hernandez replied, “‘Who the hell are you? You don’t live here,’” and “‘Yeah, we kick it here. We kick it here every weekend.’” Olivares said, “‘You know what, you don’t live here either, this is -- this is Little Hood’s neighborhood.’” Ramirez arrived. Hernandez told Olivares to “‘Shut the fuck up, bitch.’” Ramirez told Curiel and Hernandez, “‘Yeah, you guys don’t live here. Get the hell out of here,’” and Curiel replied, “‘Chill out[.]’” Curiel denied saying, “‘This is OTH’” or “‘This is my neighborhood.’” Tejada pushed Hernandez over a shopping cart. Hernandez got up and quickly shot Tejada once. Curiel yelled, “‘Man, you shot him, you killed this guy[,]’” and he ran away directly home. Curiel testified he did not know Hernandez was armed and stated he was shocked and surprised. He also denied handling the gun Hernandez used to shoot Tejada. He denied being involved in the Cisneros murder.
Curiel testified he lied to the police because he did not want to say anything to jeopardize himself or his family. Curiel explained he was friendly with Hernandez and wrote him letters while they were in custody because they saw each other in court and he did not want to hold a grudge. He used the word “homie” as a “general word.” Curiel admitted he wrote the letter found in Lopez’s home and stated he had to write in code “‘So the [district attorney] won’t try to bust a scandalous one on me.’” Curiel stated he wore a beanie on his head when he danced and did not leave it at Robles’s house. The parties stipulated officers found a black beanie at Robles’s house.
On cross-examination, Curiel admitted he and Robles were OTH gang members. After Curiel denied ever passing a gun to avoid the police finding it, the district attorney asked Curiel about a letter he had written two months before this incident while he was in custody on another matter. Curiel wrote Andy Escutia, Robles’s cousin, a letter in which Curiel told Escutia that he had given the gun Escutia had asked him to hold to Robles because he anticipated being arrested. Curiel admitted having the gun, but said it was only for a few hours and he believed it was legally registered to Robles’s cousin.
The jury could not reach a verdict on count 1 having deadlocked six-to-six votes, and the trial court declared a mistrial on that count. Pursuant to the district attorney’s motion, the court dismissed count 1. The jury convicted Curiel of first degree murder on count 2, and count 3. As to count 2, the jury found true the allegations he committed the murder for the benefit of a criminal street gang, he was a gang member who vicariously discharged a firearm causing death, and he intentionally killed Tejada to further the criminal street gang’s activities. The jury did not make a finding on the multiple murder allegation.
The trial court sentenced Curiel to life without the possibility of parole on count 2 and a 25-year consecutive term on the firearm allegation. The court did not impose the street gang enhancement as to count 2 pursuant to section 12022.53, subdivision (e)(2), and the court stayed the sentence on count 3 pursuant to section 654.
DISCUSSION
I. Amend Information Count 1
Relying on section 1009 and California Constitution, article I, section 14, Curiel argues the trial court erroneously allowed the district attorney to amend the information to include a street terrorism enhancement as to count 1, and he was denied his Fourteenth Amendment right to a fair trial because although he was not convicted of count 1 and its corresponding street terrorism enhancement, Lodge’s expert testimony regarding criminal street gangs concerning count 1 prejudiced him as to count 2. Anticipating the Attorney General’s waiver argument, he alternatively claims he received ineffective assistance of counsel when his defense counsel did not move to set aside the amended information. As we explain below, we conclude Curiel was not prejudiced by defense counsel’s failure to move to set aside the amended information.
Section 1009 generally permits a criminal information to be amended at any stage of the proceedings provided the amendment does not prejudice the substantial rights of the defendant, and does not “charge an offense not shown by the evidence taken at the preliminary hearing.” (People v. Winters (1990) 221 Cal.App.3d 997, 1004-1007 (Winters).)
California Constitution, article I, section 14, states, “Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.”
A. Procedural Facts
As relevant to this issue, the second amended consolidated felony complaint charged Curiel with the murder of Tejada in count 1, the murder of Cisneros in count 2, and alleged street terrorism enhancements as to both counts. At the conclusion of the preliminary hearing, defense counsel moved to dismiss the Cisneros murder count and its corresponding street terrorism enhancement. The magistrate denied the motion as to the Cisneros murder count, but granted the motion as to the street terrorism enhancement. The information renumbered the counts and charged Curiel with the murder of Cisneros in count 1 and the murder of Tejada in count 2 and alleged street terrorism enhancements as to both counts. Curiel moved to dismiss the information pursuant to section 995, the district attorney opposed the motion, and Curiel replied. The trial court denied the motion as to the Cisneros murder, but granted the motion as to its corresponding street terrorism enhancement. The first amended information included the street terrorism enhancement as to count 1, the Cisneros murder. Defense counsel stated he had read the amended information, he waived further reading and advisement, and plead not guilty and denied all allegations.
B. Waiver
A defendant may not raise on appeal the contention that the trial court erred in allowing an amendment to the information unless the defendant objected for the same reason in the trial court. (People v. Spencer (1972) 22 Cal.App.3d 786, 799-800; see also People v. Bright (1996) 12 Cal.4th 652, 671, disapproved on another ground in People v. Seel (2004) 34 Cal.4th 535, 540-543 [adequacy of notice from charging documents waived where defendant failed to object on that ground at trial]; People v. Newlun (1991) 227 Cal.App.3d 1590, 1604 [waiver of due process argument where defendant convicted of offense not shown at preliminary hearing].) Curiel had the opportunity to object to the amended information, but failed to do so, and instead, waived further reading. He concedes as much, and he cannot now be heard to complain. We must, therefore, address Curiel’s claim he received ineffective assistance of counsel.
C. Ineffective Assistance of Counsel
“In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel’s performance prejudiced defendant’s case in such a manner that his representation ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citation.] Moreover, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41.)
Here, we conclude Curiel has failed to demonstrate he was prejudiced by counsel’s performance and, therefore, we need not determine whether counsel’s performance was inadequate. The amended information charged Curiel with street terrorism and alleged a street terrorism enhancement as to count 2, the Tejada murder, and the district attorney was required to establish the required elements. To satisfy its burden, the district attorney offered Lodge’s testimony. And, Curiel stipulated he was an active member of OTH. Most, if not all, of the criminal street gang evidence would have been admitted regardless of whether the amended information alleged a street terrorism enhancement as to count 1.
The only evidence Curiel points to that would not have been admitted is a hypothetical question mirroring the facts of the Cisneros murder where the district asked Lodge to assume the two men were gang members and they were backing each other up. Lodge’s opinion concerning count 1 would not have prejudiced Curiel as to count 2. We agree with Curiel there was no evidence the murder of Cisneros was gang related, and the evidence Curiel was involved in that murder was weak, as evidenced by the jury’s failure to reach a verdict. The weight of an expert’s opinion is only as good as the facts or information upon which the expert relied, and the court instructed the jury accordingly. The evidence as to count 2 and its corresponding street terrorism enhancement, however, was strong. There was evidence Curiel “mad-dog[ged]” the group, Curiel asked Tejada “‘where [he] was from,’” Curiel told Ramirez to “‘[s]hut the fuck up,’” and Curiel claimed he was OTH. There was also evidence gang members know when other gang members possess a gun—Curiel admitted he was an OTH gang member, and Lodge opined Hernandez was too. Thus, we cannot conclude Lodge’s opinion concerning the hypothetical mirroring the facts of the Cisneros murder prejudiced Curiel as to the Tejada murder.
We remind Curiel’s appellate counsel and the Attorney General to heed the California Rules of Court and provide this court with citations to the record to support factual assertions. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
Curiel also cites to a number of instances where the district attorney argued the murders were gang related, Curiel was part of a gang death squad, and the murders were linked. But, attorneys’ argument is not evidence, and the court admonished and instructed the jury on this principle. Therefore, there is not a reasonable probability that absent the amended information the jury would have had a reasonable doubt respecting Curiel’s guilt on count 2 and its corresponding street terrorism enhancement.
II. Motion for Acquittal Count 1
Curiel contends the trial court erroneously denied his motion for acquittal on count 1 because there was insufficient evidence on identity and the “synergistic effect of deciding the joint charges and the prosecutor’s argument [he] was part of a gang death squad and a double murderer[]” prejudiced him as to count 2. We disagree.
Section 1118.1 provides in relevant part: “In a case tried before a jury, the court on motion of the defendant . . ., at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”
“In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, ‘“whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” [Citations.]’ [Citation.] ‘Where the section 1118.1 motion is made at the close of the prosecution’s case-in-chief, the sufficiency of the evidence is tested as it stood at that point.’ [Citations.] [¶] . . . [¶] We review independently a trial court’s ruling under section 1118.1 that the evidence is sufficient to support a conviction. [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)
Within his argument, Curiel analogizes to cases involving joinder of crimes. He moved to sever count 1 from counts 2 and 3, but the trial court denied the motion. Both parties spend a fair amount of time discussing whether joinder principles are instructional here, but in his reply brief, Curiel concedes he is not challenging the court’s ruling on his joinder motion. Therefore, we will not discuss joinder or the cases interpreting the joinder statute further. We limit our discussion to the court’s denial of Curiel’s motion for acquittal, and its appropriate standard of review.
We note, had the trial court granted Curiel’s motion for acquittal on count 1, that would not have cured any alleged prejudice Curiel now complains of. The jury had heard all the evidence. Assuming the court granted the acquittal motion, the only additional references to count 1 the jury would not have heard is the district attorney’s arguments, which as we explain above is not evidence. Curiel’s real complaint appears to be the denial of his severance motion, an issue he does not raise on appeal.
Based on the entire record, we conclude there was sufficient circumstantial evidence for the jury to conclude beyond a reasonable doubt Curiel aided and abetted Hernandez in the Cisneros murder. Alvarado said he saw a man wearing a checkered shirt and a black beanie argue with a man. He heard a gunshot, and he saw the man in the checkered shirt stand over the fallen man, reach down, and grab something. The evidence was overwhelming Hernandez, who was wearing a checkered shirt, shot Tejada, and the gun that was used to shoot Tejada was the same gun used to shoot Cisneros. This was sufficient evidence for a jury to conclude Hernandez shot both Cisneros and Tejada.
As for Curiel, he testified he did not have a driver’s license and never owned a car, but he admitted having had a learner’s permit and knowing how to drive. Ramirez told the interviewing officer he did not get a good look at the driver, but Ramirez testified he saw two men in the car as it drove past him, and Alvarez testified she saw two men twice drive by Cisneros and threaten him. Ramirez testified that when he followed the car, they drove west on either Anahurst Street or St. Gertrude, toward the area where Hernandez shot Tejada. Dante testified it took between four and seven minutes to drive from where Hernandez shot Cisneros to Robles’s house, and it took approximately five minutes to walk from Robles’s house to the 7-Eleven, and less than one minute to walk from the 7-Eleven to where Tejada was shot. Tejada was shot approximately 25 minutes after Cisneros. Curiel admitted he was present at the Tejada shooting, 25 minutes later, and less than two miles away. Lodge opined based on his investigation, Hernandez was an OTH member, and Curiel stipulated he was an active OTH gang member. Based on this evidence, the jury could conclude Curiel and Hernandez were patrolling OTH territory when they harassed Cisneros, and Curiel manned the getaway car while Hernandez shot him.
Curiel makes much of the fact that witnesses testified Hernandez was wearing a black beanie when he shot Cisneros, but Curiel was wearing a black beanie when Hernandez shot Tejada. It is reasonable for a jury to conclude Hernandez wore the beanie to disguise his identity when he shot Cisneros while Curiel drove the getaway car, and Hernandez returned the beanie to Curiel before walking to the 7-Eleven. Therefore, the trial court properly denied Curiel’s motion for acquittal.
III. Evidentiary Issues
Curiel raises several evidentiary issues. We will address each in turn.
A. Curiel’s Telephone Conversation with Lisa
Curiel claims the trial court abused its discretion in admitting his telephone conversation with Lisa because it was irrelevant and prejudiced him in violation of his Fifth, Sixth, and Fourteenth Amendment rights. We disagree.
Relevant evidence is “evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Although “‘there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution[.]’” (People v. Freeman (1994) 8 Cal.4th 450, 491.)
Evidence Code section 352, however, authorizes a trial court to exclude relevant evidence. “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “We review a challenge to a trial court’s choice to admit or exclude evidence under [Evidence Code] section 352 for abuse of discretion. [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
As we explain above, Lodge interviewed Curiel after the incident. Curiel said he was at a party, went to his ex-girlfriend’s house, and went home; he denied any involvement in the incident. In the DVD of the interview played for, and the transcripts provided to the jury, Lodge tells Curiel they know what happened, but they did not know the extent of his involvement or what he was thinking. Lodge asked Curiel if he understood, and Curiel shook his head affirmatively. The interview ended.
After the interview ended, Curiel called Lisa. We provide the entire conversation for context:
“Lisa: Hello[.]
“Curiel: Hello.
“Lisa: Freddy.
“Curiel: Yeah.
“Lisa: What happened?
“Curiel: Um, look, it’s because something, some shit happened yesterday, fucking[.]
“Lisa: You were not there, were you?
“Curiel: Well, well yeah I was there. That’s why, that’s why they have me.”
Curiel concedes to this point the conversation was relevant, and the trial court properly admitted it. He contends, however, the remainder of the conversation was irrelevant and prejudicial.
“Lisa: Don’t say nothing Freddy. Did they talk to you already?
“Curiel: Uh yeah. You know what they’re trying to get me for, right?
“Lisa: The, that, they kill someone.
“Curiel: Yeah.
“Lisa: Oh, my God. Were you there?
“Curiel: Yeah, I was there, but you know fucking[.]
“Lisa: Just don’t say nothing my mom’s gonna get you a lawyer. And um, just don’t say nothing at all. Then we’ll see what happens. I mean, like the cop told me it wasn’t you. He goes it was someone else, so[.]
“Curiel: Is that what the cop said?
“Lisa: Yeah.
“Curiel: Well, see they know, you know just that fuckin I was, I was there and shit.
“Lisa: I know cause I told, he told me he’s like well, hold on. The only thing he told me is you know what, um, there was a shooting last night. And da, da, da. I’m like oh, my God. Gang, and then he said gang affiliated. I’m like he doesn’t, he’s not even in a gang.
“Curiel: Um hum.
“Lisa: So, I, I mean, then I told them, what happened? They go well it wasn’t your brother. You know, someone else pulled the trigger. If he cooperates with us, you know, we’ll get this sooner whatever process and you know, that’s it.
“Curiel: Cause.
“Lisa: Just, wait, hold on. Where, where are you at?
“Curiel: Right here at the um, Santa Ana, Santa Ana jail, I think.
“Lisa: The Santa, where on Civic Center?
“Curiel: Yeah. I’m right here like in the little rooms and shit.
“Lisa: Okay. So just don’t say nothing. Just wait until my mom gets you a lawyer. Someone you can speak to. Okay. Cause you have that right.
“Curiel: Yeah.
“Lisa: Okay. No matter how much they pressure you. No matter how much they say, oh, you know what someone else is in the other room and they’re saying this about you. You know that, what happened with Chris.
“Curiel: Yeah.
“Lisa: So just don’t say nothing at all.
“Curiel: They’re booking me though for, for that. For the murder.
“Lisa: No, they, they can’t do that now, with, without proof. They’re, they’re gonna try to scare you. Only the judge can say that. That they they’re trying to scare you. So just don’t say nothing. Let, you know, my mom get the lawyer. Okay.
“Curiel: Yeah.
“Lisa: So just don’t say nothing. They’re gonna pressure you. They’re gonna do all this stuff, but just be, you know what, plead the fifth.
“Curiel: Did my mom know already?
“Lisa: Yeah. She’s coming home right now.
“Curiel: Alright.
“Lisa: Okay, I’m glad I got to talk to you before they, anything’s said. I mean whatever happens. You’re gonna talk to the lawyer and let the lawyer, he’s gonna present you in court. Okay?
“Curiel: Alright then.
“Lisa: Alright then.
“Curiel: Alright.
“Lisa: Hey.
“Curiel: Yeah.
“Lisa: If you can’t call us back later on, call my mom, what the hell.
“Curiel: Alright then.
“Lisa: Bye.
“Curiel: Alright, bye.”
Curiel’s statements he was “there” were relevant to prove he was at the scene of the Tejada murder and on the issue of his credibility because he had previously told Lodge that he was not involved in the incident. Curiel concedes as much. And, he did not say it just once. He repeated it, twice, and prior to the second instance, Lisa had already told him to remain silent and wait for an attorney. Contrary to Curiel’s claim, Lisa’s statements could not be redacted because her statements provided context to the entire telephone conversation. (Evid. Code, § 356.)
Lisa’s statements to Curiel to remain silent and wait for an attorney were not unduly prejudicial. The jury did not hear evidence Curiel invoked his constitutional right to counsel at the end of his interview with Lodge or that he told Lisa that he invoked that right. Those statements were redacted. Curiel’s suggestion the jury would have inferred he invoked his constitutional rights from the abrupt manner in which his interview with Lodge ended, and Lisa’s insistence he remain silent and wait for an attorney, is unpersuasive. The jury could have also inferred Curiel refused to provide any further explanation, Lodge and his colleague left, and the interview ended. We cannot conclude the jury would infer that because Lisa told Curiel to remain silent and wait for an attorney and Curiel agreed, that he had previously invoked his constitutional rights when the interview ended. Additionally, the fact it was his sister insisting he remain silent and wait for an attorney does not convince us otherwise. Lisa’s statements do not implicate Curiel’s constitutional rights. A reasonable jury would not conclude Lisa’s statements pointed to either innocence or guilt, but were merely a sister’s plea to her brother to do the prudent thing and wait for professional assistance because of what happened to “Chris.” Therefore, the telephone conversation’s relevance was not outweighed by any undue prejudice. The trial court properly admitted evidence of the conversation, and Curiel was not denied his Fourteenth Amendment right to a fair trial.
B. Curiel’s Testimony Regarding Giving Gun to Gang Associate
Curiel argues the trial court abused its discretion in admitting the letter Curiel wrote to Escutia because it was irrelevant, highly prejudicial propensity evidenceand its admission violated his Fourteenth Amendment right to a fair trial after the district attorney “reneged” on his pretrial agreement to not use the letter in exchange for a “gang” stipulation. Although we agree with the latter contention, we conclude he was not prejudiced by the letter’s admission.
Before trial, defense counsel represented to the trial court the district attorney would not seek to admit Curiel’s letter to Escutia (Curiel Letter). The district attorney explained the Curiel Letter was “not related to any of the homicides in this case[]” and he was not seeking to admit it because Curiel was going to stipulate to being an active OTH gang member. The parties stipulated: “‘Both parties stipulate that on August 4, 2002, . . . Curiel, was an active participant in OTH, a criminal street gang, with knowledge that members of OTH engage in and have previously engaged in a pattern of criminal gang activities.’”
On direct examination, Curiel testified he did not know Hernandez was armed, he did not know Hernandez was going to shoot Tejada, and he was shocked and surprised. During cross-examination, Curiel repeated that after the shooting, he ran straight home and did not go anywhere to hide the gun. He agreed with the district attorney’s characterization of his testimony that he had no idea Hernandez was going to shoot Tejada. When the district attorney asked Curiel about a “gang gun,” defense counsel objected and asked to approach. When defense counsel deferred to the district attorney to make his offer of proof, the district attorney sought to introduce the Curiel Letter as to his credibility, bias, and knowledge. Defense counsel objected on relevance and prejudice grounds, and the trial court stated, “Well, I see a lot of relevance.” The court excused the jury to conduct an Evidence Code section 402 hearing.
During the hearing, Curiel testified he wrote the letter while he was in custody a few months before this incident. The letter states: “‘I think Sergio ratted something on me because I was supposed to come out on Friday that Wednesday, then I got locked up. But, then they gave me a felony charge. But, fuck it, fuck those fools anyways. [¶] ‘Hey, I was going to get caught with your gun, but Felix [Robles] had it. I was, like, who, fuck that, remember you told me that, hold on to the gun, and you come back from work. That’s why I had it. But, then, that shit happened and Felix [Robles] ran with it. Hopefully you have it already and that -- and that he hasn’t done nothing stupid with it.’” Curiel explained the gun was Escutia’s and he gave it to Robles before he was arrested. He did not know what happened to the gun Hernandez used to shoot Tejada.
After hearing argument, the trial court stated it saw a “disconnect” with respect to the district attorney’s offer of proof and suggested it might be admissible as to impeachment, and the district attorney agreed. The hearing continued.
Curiel testified gang members are not always expected to be loyal to fellow gang members or help gang members by passing guns around. He admitted passing the gun to Robles, but said it was not out of loyalty to Robles. He stated gang members do not necessarily back each other up by passing guns around.
The trial court overruled Curiel’s objection without prejudice subject to the district attorney laying a proper foundation. Defense counsel again objected on relevance and prejudice grounds, and said the Curiel Letter was “highly prejudicial.” The court responded, “It sure is.”
When cross-examination resumed, Curiel testified he and Robles were OTH gang members and depending on the circumstances, he was expected to be loyal to other OTH gang members. He denied loyalty involved passing a gun to other gang members to avoid police detection or that he had ever done so. Curiel responded he did not remember ever writing a letter saying he passed a gun so the police would not find it. When confronted with the letter, Curiel admitted he wrote it and admitted he did not want Robles to be caught with the gun, but this was not due to gang loyalty. He denied it was a gang gun. When Curiel stated he did not know what happened to the gun Hernandez used to kill Cisneros and Tejada, the district attorney asked, “Who did you pass it to, just like you had passed that gun? Who did you pass that gun --” Curiel answered, “I never got ahold of it.” The trial court admitted the letter into evidence over defense counsel’s objection based on relevance and prejudice.
We need not decide whether the Curiel Letter was relevant or unduly prejudicial as we conclude the Attorney General cannot satisfy the threshold question of whether the district attorney should even have been permitted to seek admission of the evidence in violation of its promise not to do so.
“A criminal prosecutor’s function ‘is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial.’ [Citation.] His or her goal must be ‘not simply to obtain a conviction, but to obtain a fair conviction.’ [Citation.] ‘Although the prosecutor must prosecute with earnestness and vigor and “may strike hard blows, he is not at liberty to strike foul ones.”’ [Citations.]” (In re Sakarias (2005) 35 Cal.4th 140, 159.) “When [a] prosecution makes a ‘deal’ within its authority and the defendant relies on it in good faith, the court will not allow the defendant to be prejudiced as a result of that reliance. [Citation.]” (U.S. v. Shapiro (9th Cir. 1989) 879 F.2d 468, 471 (Shapiro).)
As we explain above, when defense counsel indicated the district attorney would not seek to admit the Curiel Letter in light of the stipulation, the district attorney responded, “That’s correct. It is a letter relating to a gun issue that’s not related to any of the homicides in this case. And I told [c]ounsel, in light of the stipulation, I am not going to seek to introduce it.”
The district attorney promised it would not use the Curiel Letter if Curiel stipulated to being an active OTH gang member, OTH was a criminal street gang, and he knew OTH engaged in a pattern of criminal gang activity. The district attorney did not qualify its promise on Curiel not testifying, or on any other condition that would permit use of the Curiel Letter for impeachment purposes. (People v. Quartermain (1997) 16 Cal.4th 600, 620 (Quartermain); Shapiro, supra, 879 F.2d 472.) We disagree that “is a fair assessment of the pretrial agreement.” To use the Curiel Letter after Curiel admitted several elements of the street terrorism substantive offense and enhancement and the special circumstance and thereby relieved the district attorney of its constitutional burden of proving those elements was a violation of due process and fundamentally unfair. (See Quartermain, supra, 16 Cal.4th 620 [holding it was fundamentally unfair and violation of due process for prosecutor “to use at trial defendant’s earlier, statement in breach of the prosecutor’s promise not to do so”].) The Attorney General cites to no cases to support its claim admission for impeachment was proper.
Because we have concluded Curiel was denied his federal constitutional right to due process by the district attorney’s use of the Curiel Letter, we must decide whether it is clear beyond a reasonable doubt that use of the letter did not contribute to the verdict. “Under this test, the appropriate inquiry is ‘. . . whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ [Citation.]” (See Quartermain, supra, 16 Cal.4th at p. 621.)
Here, we conclude the guilty verdicts in this case were unattributable to the error. We disagree with Curiel’s claim the letter was improper propensity evidence from which the jury could conclude that after Hernandez shot Tejada, he gave the gun to Curiel to hide. There was no evidence Hernandez gave the gun to Curiel after he shot Tejada, nor was there any evidence the gun referred to in the Curiel Letter was the gun used in the Cisneros and Tejada shootings. The major issue the jury had to decide was whether Curiel knew Hernandez had a gun before he shot Tejada, not whether Hernandez gave him the gun after he shot him. Lodge’s testimony, which we will address anon, provided the jury with sufficient evidence for the jury to conclude gang members know when other gang members posses weapons. (People v. Zavala (2005) 130 Cal.App.4th 758, 766.)
Additionally, the trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 316, which provided: “If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.” “‘“Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.”’” (People v. Carey (2007) 41 Cal.4th 109, 130.) We disagree the jury would not have known a gang member possessing a firearm was a crime or misconduct.
C. Lodge’s Expert Testimony Concerning Guns in Gangs
Curiel contends the trial court abused its discretion in admitting Lodge’s expert testimony that if one gang member has a gun other gang members will know the gang member is armed. Not so.
An expert witness is a person who “has special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject” of his or her testimony. (Evid. Code, § 720, subd. (a).) An expert may offer opinion testimony if the subject “is sufficiently beyond common experience that” it would assist the jury. (Evid. Code, § 801, subd. (a).) The opinion testimony must be “[b]ased on matter . . . perceived by or personally known . . . or made known to” the witness before or at the hearing and “is of a type that reasonably may be relied upon . . . in forming an opinion upon the subject” of his or her testimony. (Evid. Code, § 801, subd. (b).) It is well established, “[t]he subject matter of the culture and habits of criminal street gangs[]” is the proper subject of expert testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
Expert testimony is admissible even though it encompasses the ultimate issue in the case. (Evid. Code, § 805; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) “This rule, however, does not permit the expert to express any opinion he or she may have. [Citation.] ‘“Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided . . . .”’ [Citation.]” (Ibid.) “‘There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. “We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved[.]”’”
(Id. at pp. 651-652.)
“‘As a general rule, a trial court has wide discretion to admit or exclude expert testimony. An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]’” (People v. Valdez (1997)
58 Cal.App.4th 494, 506, citations omitted.)
Here, during direct examination, the district attorney asked Lodge the following question: “Based on your training and your experience, what would be the expectation of gang members based on what you have learned in you career when there is a weapon to be used and the group of gang members committing a crime?” After the trial court overruled defense counsel’s objection, Lodge responded, “Based on my training and experience and conversations with specific gang members, and listening to conversations between gang members, if there is a gun within a group, that it is expected that everybody knows if there is a gun and who has it.”
During redirect examination, building on a hypothetical question defense counsel asked Lodge, the district attorney stated: “Let’s play along with A and B. A has a gun and he is walking along with B. What would you expect A to tell B about the gun?” Lodge responded, “Make sure he knows that he is armed.”
Lodge’s opinion concerning criminal street gangs’ culture and habits regarding guns was the proper subject of expert testimony. As Curiel concedes, Lodge did not express an opinion on whether he thought Curiel was innocent or guilty of the charged offenses and enhancements. Lodge responded to hypothetical questions about the significance of guns in gangs, and he did not testify as to Curiel’s knowledge or intent with respect to the gun, which is prohibited. (People v. Gonzalez (2006) 38 Cal.4th 932, 946 & fn. 3 (Gonzalez) [characterizing Killebrew as “somewhat unclear” and limiting its holding to prohibiting an expert from testifying “‘to his or her opinion of the knowledge or intent of a defendant on trial’”].) Lodge did not testify that because Hernandez and Curiel were both OTH members and Hernandez had a gun, Curiel knew he had a gun. Instead, he stated that based on his background, training, and experience, it is generally expected that if one gang member has a gun, other gang members are aware of that fact. This type of expert opinion testimony concerning gang culture has reputedly been ruled admissible. (Gonzalez, supra, 38 Cal.4th at p. 944.) The trial court properly admitted Lodge’s expert testimony concerning the significance of guns in criminal street gangs. Because we conclude the trial court properly admitted Lodge’s expert testimony, we also find Curiel was not denied his Fourteenth Amendment right to fair trial.
IV. Jury Instructions
Curiel claims the trial court erroneously instructed the jury on the natural and probable consequences theory because there was no evidence he aided and abetted Hernandez in carrying a concealed weapon, one of the target offenses. He also claims the court compounded the error by instructing the jury on constructive possession. We agree the instruction on constructive possession was erroneous, but conclude the error was harmless. His other contention has no merit.
A. Natural and Probable Consequences Doctrine
“Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator. [Citation.] [¶] . . . [¶] [A]n aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; . . . (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense[; and] (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’” (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).)
In Prettyman, supra, 14 Cal.4th 248, the Supreme Court reiterated the principles of natural and probable consequences. “‘[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . Thus, . . . a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (Id. at p. 261.)
“Therefore, when a particular aiding and abetting case triggers application of the ‘natural and probable consequences’ doctrine . . . the trier of fact must find that the defendant, act[ed] with (1) knowledge of the unlawful purpose of the perpetrator; . . . (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that[;] (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (Prettyman, supra, 14 Cal.4th at p. 262, fn. omitted.)
“The trial court should grant a prosecutor’s request that the jury be instructed on the ‘natural and probable consequences’ rule only when (1) the record contains substantial evidence that the defendant intended to encourage or assist a confederate in committing a target offense, and (2) the jury could reasonably find that the crime actually committed by the defendant’s confederate was a ‘natural and probable consequence’ of the specifically contemplated target offense.” (Prettyman, supra, 14 Cal.4th at p. 269.)
Here, the trial court instructed the jury on both aiding and abetting and the natural and probable consequences theory. As relevant here, the trial court instructed the jury with CALCRIM No. 403, “Natural and Probable Consequences (Only Non-Target Offense Charged),” which stated: “To prove that the defendant is guilty of [m]urder under the theory of [a]iding and [a]betting: [n]atural and [p]robable consequences, the People must prove beyond a reasonable doubt that: [¶] 1. The defendant is guilty of [d]isturbing the [p]eace or of [c]arrying a [c]oncealed [f]irearm by a [g]ang [m]ember; [¶] 2. During the commission of the crime of [d]isturbing the [p]eace or the crime of [c]arrying a [c]oncealed [f]irearm by a [g]ang [m]ember, the crime of [m]urder was committed; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the [m]urder was a natural and probable consequence of the commission of the crime of [d]isturbing the [p]eace or of the crime of [c]arrying a [c]oncealed [f]irearm by a [g]ang [m]ember.
[¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the [m]urder was committed for a reason independent of the common plan to commit the crime of [d]isturbing the [p]eace or the crime of [c]arrying a [c]oncealed [f]irearm by a [g]ang [m]ember, then the commission of [m]urder was not a natural and probable consequence of [d]isturbing the [p]eace. [¶] To decide whether crime of [m]urder was committed, please refer to the separate instructions that I will give you on that crime.” The court instructed the jury with CALCRIM No. 2688, “Disturbing the Peace: Fighting or Challenging Someone to Fight,” and CALCRIM No. 2520, “Carrying Concealed Firearm On Person By A Gang Member.”
Although we agree with Curiel there was no evidence he carried the gun, there was sufficient evidence from which the jury could conclude he aided and abetted Hernandez in carrying a concealed firearm. Curiel and Hernandez were both OTH gang members in OTH territory, and Lodge explained the importance of gang members providing back up for each other. Curiel testified that when he and Hernandez walked to 7-Eleven, Hernandez asked who the group of people were. He also stated that when Hernandez crossed the street, he followed him. There was testimony Curiel yelled, “‘This is OTH’” and “‘This is my neighborhood[.]’” Finally, Lodge testified that based on his background, training, and experience, when one gang member has a gun, the other gang members know. This was sufficient evidence for the jury to conclude Curiel aided and abetted Hernandez in carrying a concealed firearm.
B. Constructive Possession
Curiel complains the trial court compounded the error it made when instructing the jury with CALCRIM No. 2520, when it instructed the jury on constructive possession. We agree the trial court erroneously instructed the jury on possession, but conclude any error was harmless.
Immediately after the trial court instructed the jury with CALCRIM No. 2520, the court instructed the jury with “2520A,” at the district attorney’s request, which stated, “[T]here are two kinds of possession: actual possession and constructive possession. [¶] Actual possession requires that a person knowingly exercise direct physical control over a thing. [¶] Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [¶] A person cannot have constructive possession of a thing without the knowledge that the thing is actually possessed by another. [¶] One person may have possession alone, or two or more persons together may share actual or constructive possession.”
Section 12025, subdivision (a)(2), provides, “A person is guilty of carrying a concealed firearm when he or she does any of the following: [¶] . . . [¶] (2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.” To commit this offense, the defendant must (1) carry a firearm, (2) substantially concealed upon his or her person, and (3) know he or she was carrying the firearm (§ 20). Unlike possessing a firearm, carrying a concealed firearm cannot be constructive. The firearm must actually be concealed upon the person of the defendant who is carrying or transporting the firearm. There was no evidence Curiel carried a firearm upon his person, and to instruct the jury it could find he constructively possessed a firearm Hernandez carried and concealed was erroneous. That does not end our inquiry, however, because we must now determine whether Curiel was prejudiced by the instruction. We conclude he was not.
Because Curiel claims his Fourteenth Amendment right to a fair trial was violated, and instruction 2520A would allow a jury to find, incorrectly, that Curiel could be convicted of carrying a concealed weapon if it found he constructively possessed that weapon, thereby lessening the district attorney’s burden of proof, we will review the instruction for federal constitutional error. In the context of the natural and probable consequences doctrine, the California Supreme Court has stated that “‘in reviewing an ambiguous instruction . . ., we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.]” (Prettyman, supra, 14 Cal.4th at p. 272.)
As we explain above, there was sufficient evidence for the jury to find Curiel aided and abetted Hernandez in carrying a concealed firearm. There was no evidence he actually possessed the firearm and there was no evidence he exercised control over the firearm, directly or through Hernandez. Lodge testified when a gang member possesses a weapon, the other gang members know the gang member is armed, but he did not opine the non-armed gang member exercises control over the firearm. We conclude no reasonable juror would have concluded Curiel exercised control over a weapon Hernandez carried and concealed. Additionally, there was overwhelming evidence Curiel aided and abetted in disturbing the peace, and the jury’s verdict convinces us that no reasonable jury would have concluded Curiel did not aid and abet that crime. The jury convicted Curiel of street terrorism. No reasonable juror would have convicted him of street terrorism, but found he did not aid and abet a disturbing the peace charge. Therefore, there is no “reasonable likelihood” that the jury misapplied the trial court’s instructions on the “natural and probable consequences” doctrine, and thus, no federal constitutional error occurred.
V. Special Circumstance
Curiel raises two issues regarding the special circumstance allegation. We will address each in turn.
A. Aider & Abettor?
Curiel claims the jury’s true finding on the section 190.2, subdivision (a)(22), special circumstance must be reversed because it only applies to the “actual killer” and not an aider and abettor. Not so.
Section 190.2 states: “(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under [s]ection 190.4 to be true: [¶] . . . [¶] (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of [s]ection 186.22, and the murder was carried out to further the activities of the criminal street gang.” (Italics added.)
Based on the above italicized language, Curiel claims section 190.2, subdivision (a)(22), only applies to an “actual killer” because of its use of the active voice (“defendant intentionally killed”), and not the passive voice (“a murder was committed by a gang member”), and use of “kill,” and not “murder.” Although Curiel acknowledges the plain language of section 190.2, subdivision (c), authorizes such a finding, he claims, through creative statutory parsing, that it only applies if the below italicized condition precedent is first found true.
Section 190.2, subdivision (c), provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under [s]ection 190.4.” (Italics added.)
The plain language of section 190.2, subdivision (c), authorizes death or life in prison without the possibility of parole for a person who is not the actual killer (Curiel) who aided and abetted the actor (Hernandez) in the commission of a first degree murder if the defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. We reject Curiel’s invitation to read an exception into the statute where the Legislature has not included one.
B. Sufficiency of the Evidence
Focusing solely on the evidence favorable to him, and ignoring the appropriate standard of review, Curiel argues insufficient evidence supports the jury’s true finding on the section 190.2, subdivision (a)(22), special circumstance because there was no evidence he possessed the requisite intent. Again, we disagree.
“To determine the sufficiency of the evidence to support a special circumstance finding, we apply the same test used to determine the sufficiency of the evidence to support a conviction of a criminal offense. We ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 790-791.) An aider and abettor’s intent may be proven circumstantially from his “volitional acts with knowledge of their probable consequences.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
There was sufficient circumstantial evidence from which the jury could conclude Curiel possessed the requisite intent to kill. As we explain above, Curiel and Hernandez were OTH gang members walking in OTH gang territory when Hernandez asked Curiel who the group of people were. Lodge explained the culture and habits of criminal street gangs, including gang territory, respect, hit-ups, and backing each other up. Lodge testified that based on his background, training, and experience, when one gang member has a gun, the other gang members know. Curiel admitted that when Hernandez crossed the street, he followed him. There was testimony Curiel yelled, “‘This is OTH’” and “‘This is my neighborhood[.]’” And, there was evidence Curiel confronted and argued first with Tejada, and then with Ramirez. This was sufficient evidence for the jury to conclude Curiel possessed the requisite intent to kill.
VI. Court Security Fee
Curiel argues the trial court’s imposition of the $20 court security fee pursuant to section 1465.8, subdivision (a)(1), violated federal and state ex post facto principles and section 3. While this appeal was pending, the California Supreme Court decided People v. Alford (2007) 42 Cal.4th 749 (Alford). We invited the parties to file supplemental letter briefing addressing the impact of Alford on this case, which the parties did. The Alford court rejected claims similar to the one Curiel makes here. Curiel concedes we must follow Alford, but reserves his claim to permit federal court review of the issue. Therefore, the court’s imposition of the $20 court security fee did not violate federal and state ex post facto principles or section 3.
VII. Cumulative Effect
Curiel claims, in his conclusion, the cumulative effect of the alleged errors prejudiced him. We have found there were two errors, but concluded Curiel was not prejudiced. Thus, his claim of prejudicial cumulative error has no merit.
JUDGMENT
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.IKOLA, J.