Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside, Jeffrey Prevost, Judge. Super. Ct. Nos. RIF137059, RIF137060.
O'ROURKE, J.
A jury convicted defendant Kaleb Bennie Dominick of first degree burglary (Pen. Code, § 459; counts 1, 3 and 4), actively participating in a criminal street gang (§ 186.22, subd. (a); count 5), and receiving stolen property (§ 496, subd. (a); count 6). It found true allegations that defendant committed the crimes alleged in counts 3 and 4 for the benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant admitted allegations that he committed the count 6 offense while he was released from custody on bail within the meaning of section 12022.1, subdivision (b). The trial court sentenced him to a total prison term of 13 years and 4 months. It struck the section 12022.1 enhancement as to count 6.
All statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) admission into evidence of his responses to questions during his booking violated his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the trial court violated his federal and state constitutional rights of confrontation by admitting the testimony of the People's gang expert; (3) there is insufficient evidence to support the criminal street gang enhancement of section 186.22; (4) the trial court prejudicially erred by admitting portions of a police officer's interview of him as an adoptive admission and also by admitting evidence of prior uncharged crimes; (5) the trial court erroneously instructed the jury with CALCRIM No. 1400; (6) the prosecutor engaged in prejudicial misconduct throughout the case; and (7) the trial court failed to perform an adequate intracase proportionality analysis for purposes of sentencing. Defendant further contends, and the People agree, that the abstract of judgment must be corrected to reflect that his convictions were the result of jury verdicts.
We direct the trial court to modify the abstract of judgment as defendant requests. Otherwise, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
November 21, 2006 Burglary
On November 21, 2006, Riverside County Deputy Sheriff Kevin Lamb responded to a call regarding a suspicious person around a home in Moreno Valley. At the time, Lamb was a member of the sheriff department's gang unit and had become familiar with the Edgemont Criminals, a local criminal street gang, as well as defendant, who he had previously contacted in the company of other Edgemont Criminals gang members and had seen in photographs with Edgemont Criminals gang members. Deputy Sheriff Lamb saw a bicycle lying in the front of the house and parked his vehicle two houses away. After a minute, defendant exited the front door of the house, saw Lamb in his patrol car, became nervous, and left on the bicycle. Lamb caught and detained defendant. He found a large amount of jewelry in defendant's backpack and a wallet belonging to Angelita Perrino, who lived at the residence. Lamb saw that the front door to the residence had been kicked open and the bedrooms ransacked. The next day Lamb contacted the owners, who identified various items from defendant's backpack as their property.
In an interview with Deputy Sheriff Lamb at the police station, defendant admitted kicking in the front door of the Perrino's residence and told the officer he was going to sell the property he had taken. He also admitted "hanging out" with Edgemont Criminals members. When asked about another Edgemont Criminals gang member, Barry Tolbert, defendant responded, "Yeah, I kick it with him." Lamb asked defendant whether he had "ever done this before, " and he responded, "Yeah. Finally got caught." Defendant was familiar with the gang moniker ("Fat Boy") of another Edgemont Criminals gang member, Victor Mendoza.
March 2, 2007 Burglaries
On March 2, 2007, Linda Hunt arrived home to her Riverside residence to find the garage door open and her front door cracked with a broken jamb. Her home's interior was ransacked and missing were jewelry, computer games including an X-box and GameCube, and other items. Police were able to recover some of the items belonging to Ms. Hunt and her children.
That same day, Chris Nelson returned to her Fontana home to find her garage side door broken and the home's interior ransacked, with several items of jewelry missing.
Riverside County Sheriff's Sergeant Richard Heard was on duty that day and responded to a call about individuals attempting to pawn stolen items in a pawnshop on Perris Boulevard. Sergeant Heard parked his vehicle and approached a blue Ford Expedition in the pawnshop's parking lot. As he approached the vehicle, an African-American male exited from the passenger side and jumped a fence behind the lot. Sergeant Heard looked inside the vehicle and saw an X-box tower and GameCube, and items of jewelry. He and another deputy entered the pawnshop and confronted Christina Butler, Sharrelle Hawkins, and Nolan Taylor. Sergeant Heard had previously had contact with defendant in September 2006 and in a field interview report he had noted, among other information, that defendant was dressed in gang attire and was a gang affiliate. He wrote "Edgemont Criminals" in his report based on the circumstances including his prior contacts with the individuals, a tattoo on one of the individuals' forearm, his conversations with them, how they were dressed, and who they were with.
Defendant's Arrest and Interviews
On March 15, 2007, police located and arrested defendant after they found him hiding in a closet at his mother's home. Riverside County Sheriff's Investigator William Mooney read defendant his Miranda rights and spoke with him in a holding cell area for about five minutes. Defendant denied any involvement in the burglaries and stated he did not have any stolen jewelry.
Investigator Mooney then took defendant to an interview room where he and another detective interviewed him. Defendant declined another Miranda warning, stating he understood his rights. He told Mooney that his prior answers were "fucking bullshit" and began talking about the March 2, 2007 burglaries. He explained that they went to Fontana first, and that they would ring the doorbell, knock, and then kick in the door if nobody answered. Defendant stated that he thought he had kicked one door, but was unsure about the other. According to defendant, Hawkins and Butler were the lookouts, and the men and women would communicate with push-to-talk "chirp" phones. After the second burglary, they went to one pawnshop that only offered them $100, and then to the pawnshop on Perris Boulevard. At one point during the interview, defendant stated he was "real cool" with Tolbert. When asked if he knew Cedric Greer, another Edgemont Criminals gang member, defendant said yeah, that Greer was "cool."
Gang Expert Testimony
Riverside County Sheriff's Investigator Lance Colmer, who was assigned to the Moreno Valley Police Department Special Enforcement Team gang unit, testified at trial about the Edgemont Criminals gang. He recounted his experience and training, and testified he had investigated well over one hundred crimes involving that gang over the course of his career. He described the gang's background and history, and stated that it met the requirements for a criminal street gang under California law.
Investigator Colmer testified that in his experience, though some gang members openly flaunted their gang attire and tattoos, others were less likely to openly admit their gang membership to law enforcement. Members of the Edgemont Criminals gang used the terms EMCG, ECG, A-line, the letter "A, " or "SQAD 9." In November 2006 and March 2007, the Edgemont Criminals gang's primary activities were burglaries, robberies and narcotics sales. Investigator Colmer related various burglaries and offenses committed by Edgemont Criminals gang members in 2005 and 2006. According to him, Edgemont Criminals gang members typically would gain entry into a house through force: kicking in the front door or breaching a window.
Specifically, he testified that Edgemont Criminals gang member Julius Green was convicted of burglarizing a home in May 2005 with another Edgemont Criminals gang member, Marquis Easley. Edgemont Criminals gang member Tolbert was charged in juvenile court for burglarizing a home in Moreno Valley in November 2006 with other gang members. Edgemont Criminals gang member Carlton Solin was convicted of first degree burglary of a Moreno Valley home in April 2006. Investigator Colmer testified he was familiar with other burglaries committed by Edgemont Criminals gang members acting alone, including the present case and one committed by Craisean Evans. The investigator was also familiar with other crimes resulting in convictions of other Edgemont Criminals gang members, including an attempted murder and possession of rock cocaine for sale.
Investigator Colmer explained that members "claimed" a gang or territory both verbally and by using graffiti. He also explained that people did not tend to claim a gang when they were not actually gang members. There were consequences for individuals throwing gang signs or wearing gang tattoos without actually being a member: they could be "disciplined" or beat up by gang members.
Investigator Colmer testified that gang members who committed crimes individually would share information about their crimes with the gang to affect their reputation, rank and level of respect within the gang. He explained that while shootings, homicides and violent felony assaults were the types of crimes that would achieve more respect within the gang, gang members would also obtain respect for committing first-degree burglaries because oftentimes such burglaries could result in the collection of firearms or money for the gang.
Investigator Colmer had contacted defendant in the past in the Edgemont Criminals gang turf and with other members of the Edgemont Criminals gang. He had photographed him wearing Edgemont Criminals gang indicia or symbols and reviewed police reports about defendant's commission of crimes with other gang members. Investigator Colmer identified photographs showing defendant throwing Edgemont Criminals gang signs alone and with other gang members. He identified a September 4, 2006 field interview card on which the officer noted defendant was wearing gang dress and in the presence of other active gang members. Based on his own contact with defendant in the neighborhood on September 29, 2006, he had filled out a field interview card indicating defendant was a "self-admitted" Edgemont Criminals gang member associating with other gang members. Investigator Colmer noted that defendant had tattoos "W, " "S" and "IE" on his arms as of November 2006, signifying "Westside Edgemont Criminals" and "Inland Empire" or gangs coming from the Inland Empire.
Investigator Colmer was shown November 21, 2006 and March 15, 2007 classification questionnaires filled out by sheriffs from the Riverside County Sheriff's Department that indicated defendant had identified himself as an Edgemont Criminals gang member and associate. The March 2007 questionnaire also indicated defendant's gang moniker, "K-Dub." Colmer explained the questionnaires were used to document the name and personal data, including gang affiliation, medical history and medical needs, of any person entering the jail system. He pointed out that defendant had reviewed and signed both forms.
Investigator Colmer was familiar with Nolan Taylor, who had been convicted of the March 2, 2007 burglaries and also suffered a gang enhancement as a result. Taylor had a gang moniker, "Problem Child, " as well as the tattoos "EM" and "CG" on his arms, and he had been identified by other law enforcement officers as an Edgemont Criminals gang member. In July 2005, defendant was specifically ordered not to have any contact with Taylor or associate with individuals known to be gang members or persons engaged in gang-related activities.
Based on the investigator's personal knowledge about the gang's history and the photographs, his personal contacts in the turf area, the gang's crimes with other validated gang members, field interviews, the classification questionnaire and information he had obtained concerning defendant's background, Investigator Colmer opined that defendant was a member of and active participant in the Edgemont Criminals gang on November 21, 2006 and on March 2, 2007. Colmer also relied on defendant's own admission that he was a member of the Edgemont Criminals. Presented with hypothetical questions about the detailed facts of defendant's March 15, 2007 offenses, the investigator opined that the burglaries were committed for the benefit of the Edgemont Criminals gang, in association with the gang, or at the direction of the gang, by a known gang member.
The investigator also opined that defendant's November 21, 2006 burglary was committed for the benefit of or in association with the Edgemont Criminals gang, but the jury rejected his opinion as to the gang-related nature of that particular burglary.
Defense
Defendant admitted burglarizing the homes in March 2007 with Nolan Taylor. However, he denied ever being an Edgemont Criminals gang member at any time, and he denied knowing whether Taylor was a member. He claimed that the pictures of him throwing gang signs were the result of his drinking too much alcohol and experiencing peer pressure. He testified that by burglarizing the homes he did not intend to benefit the Edgemont Criminals gang; he planned to use the proceeds of the March 2007 burglaries to help provide for his young daughter. According to defendant, his tattoos signified the Westside of Los Angeles, where he lived until he was 12 years old.
Rebuttal
In rebuttal, Deputy Sheriff Lamb testified that on March 2, 2007, Nolan Taylor told him he was a member of Edgemont Criminals, went by the moniker of Problem Child, and showed the officer gang tattoos on his forearms: "EM" for Edgemont and "CG" for criminal gang. Investigator Colmer reiterated that based on his review of field interviews, conversations with other law enforcement officers, contacts with other Edgemont Criminals gang members and rival gang members, Nolan Taylor was an active member of the Edgemont Criminals gang on March 2, 2007.
DISCUSSION
I. Admission of Appellant's Jail Booking and Classification Interview
Defendant contends the trial court prejudicially erred by admitting into evidence his statements from the jail classification interview after denying his in limine motion to exclude them. He maintains that to the extent the questionnaire contained his affirmative statements concerning his gang membership, they were obtained in violation of Miranda. The People respond that the evidence falls within an exception for questions pertaining to routine background or booking information, and that defendant was not prejudiced in any event - the admission of that evidence was harmless beyond a reasonable doubt - due to the other evidence relied upon by Investigator Colmer in reaching his conclusions.
We agree with the People's prejudice argument and thus need not address whether the trial court abused its discretion in admitting defendant's admissions on the jail classification questionnaire into evidence. That is, we agree admission of the evidence on this record, even assuming error, is harmless beyond a reasonable doubt. (People v. Jablonski (2006) 37 Cal.4th 774, 816, citing Chapman v. California (1967) 386 U.S. 18, 24; see People v. Coffman (2004) 34 Cal.4th 1, 60.) An error is harmless under this standard if the People show " 'that error [is] unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the... verdict actually rendered in this trial was surely unattributable to the error.' " (People v. Neal (2003) 31 Cal.4th 63, 86, italics omitted.)
Here, Investigator Colmer relied upon abundant evidence apart from the jail questionnaires to conclude that defendant was an active member of the Edgemont Criminals gang in March 2007, and, as we explain below, his testimony is not inadmissible as improperly based on testimonial hearsay. As we have summarized above, his opinion was based on matters including photographs of defendant throwing gang signs with other Edgemont Criminals gang members, defendant's tattoos, police reports relating his commission of other crimes with other gang members, and his own and other officers' field interviews with defendant in the neighborhood. Investigator Colmer testified that he had noted on his own September 2006 field interview card that defendant was a "self-admitted" member of the Edgemont Criminals gang. In relation to this evidence, the testimony concerning defendant's statements on jail booking questionnaires admitting his membership in or association with Edgemont Criminals was of minor importance. The statements certainly did not supply any missing link in the evidence. Under the prejudice standards summarized above, any error in admitting Investigator Colmer's testimony concerning those questionnaires, and any resulting Miranda error, was harmless beyond a reasonable doubt.
II. Confrontation Clause
Defendant contends he was denied his state and federal constitutional rights to confrontation when the trial court allowed the prosecution to prove the elements of the gang participation charge and the gang enhancement with Investigator Colmer's testimony, which assertedly relied "extensively" on testimonial hearsay. He correctly concedes that the use of expert testimony on this matter is well established, and that the subject matter of criminal street gang culture and habits is sufficiently beyond the common experience that expert testimony is of assistance to the trier of fact. However, arguing an expert's testimony is not admissible if it consists of inferences that can be drawn just as easily by the jury, he maintains Investigator Colmer's expert opinions as to the gang status of other various Edgemont Criminals offenders was not based on his gang expertise, and it was not proper to establish the gang status of those various individuals (Julius Green, Marquis Easley, Barry Tolbert, Donnie Gooden, and Carlton Solin) who had committed burglaries and other offenses because his conclusions were based on their admissions to him as well as information derived from other police sources. He accordingly argues the "jury could have assessed the credibility of the declarants as readily as could Colmer...." Defendant also complains he was given no opportunity to question the above-mentioned individuals as to whether they were members of the Edgemont Criminals gang, or any other out-of-court declarant such as the other police officers about the basis for the assertion that these individuals were gang members.
We agree with the People that as a threshold matter, by failing to raise these objections below, defendant has forfeited the objections now raised to Investigator Colmer's testimony about other predicate offenders. There is no indication in the record that defense counsel made either a hearsay or confrontation clause objection before trial, when the parties discussed the prosecutor's request to introduce certain predicate offense evidence on the gang charge and enhancement, or during trial, when Investigator Colmer testified. He has forfeited the constitutional claim. (People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant forfeited confrontation clause claim by failing to raise it at trial].)
To avoid a claim of ineffective assistance of counsel, we proceed to the merits of defendant's contention. As we explain, we conclude there was no confrontation clause violation by admission of Investigator Colmer's testimony. First, we disagree with the premise of defendant's argument: that Investigator Colmer "had no occasion to exercise any expertise" as to those individuals' gang membership and the "jury could have decided, as easily as Colmer, whether the sources of the information that the foregoing persons were gang members were telling the truth." This assertion forms the basis for defendant's contention that the out-of-court statements were therefore offered for their truth and not for the basis of Investigator Colmer's opinion, in violation of his confrontation rights. Based on settled authorities permitting gang experts such as Investigator Colmer to rely on precisely the sort of field interviews and other matters to form the basis of his opinions (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210), we decline to find error in admission of his testimony to the extent defendant argues it was on an issue within a juror's common knowledge and experience.
Further, even assuming the investigator relied on hearsay, it is established that such hearsay in support of his opinion as to the gang membership of various persons is "not the sort of testimonial hearsay the use of which Crawford [v. Washington (2004) 541 U.S. 36] condemned." (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427; see also People v. Thomas, supra, 130 Cal.App.4th at p. 1210 ["Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions"].)
Defendant argues, without authority, that "[p]olice-initiated contacts with suspected gang members, and statements taken therefrom, are clearly 'testimonial' in nature because they are undertaken by law enforcement in contemplation of pursuing criminal charges against particular persons, even if at a later date." We cannot agree with such a broad assertion as a matter of law, and the assertion is unsupported factually, as defendant has not demonstrated that the information gathered by Investigator Colmer (or the other officers) was in the context of custodial interrogations or otherwise gathered " ' under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 2532]; e.g., People v. McDaniels (1980) 107 Cal.App.3d 898, 905 [rejecting argument that gang expert relied on improper hearsay where defendant made no showing that matter "was other than of 'a type that reasonably may be relied upon by an expert' "]; contra United States v. Mejia (2nd Cir. 2008) 545 F.3d 179, 183, 187, 188, 197-199 [finding expert witness testimony about gang was improper to the extent the expert based his opinion on information from a "combination of both" custodial interrogations and other sources].)
Rather, the field interviews and statements relied upon by Investigator Colmer were used not for their truth but to form his expert opinion (see People v. Thomas, supra, 130 Cal.App.4th at p. 1210) and defendant had the opportunity to cross-examine Investigator Colmer about his qualifications and how he reached his opinions. There can be no violation of a defendant's confrontation rights where the challenged statement was not admitted for its truth. (Crawford, supra, 541 U.S. at p. 59, fn. 9 ["The [confrontation c]lause... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted"].) In reply, defendant urges us to hold that Thomas was decided incorrectly, but his arguments are again based on the premise that the police field interviews and other matters relied upon are testimonial hearsay admitted for their truth. He also asks us to rely on authorities that are inapposite (one that has since been granted review by the California Supreme Court - People v. Dungo, review granted December 2, 2009, S176886), as they involve reports containing laboratory analyses or autopsy reports. Thus, we are not persuaded by defendant's assertion that he was given no opportunity to question the gang members on whose statements Investigator Colmer relied. There was no confrontation clause violation.
III. Sufficiency of the Evidence of Gang Enhancement and Status of Edgemont Criminals as a Criminal Street Gang
Defendant contends the People did not prove beyond a reasonable doubt that his offenses were committed for the benefit of and with the specific intent to promote the Edgemont Criminals gang, or that the Edgemont Criminals qualified as a criminal street gang within the meaning of section 186.22. Specifically, he compares Investigator Colmer's testimony concerning the "primary activities" of the Edgemont Criminals to the evidence examined in In re Nathaniel C. (1991) 228 Cal.App.3d 990 and In re Alexander L. (2007) 149 Cal.App.4th 605.) Defendant also argues Investigator Colmer's opinions constituted improper profile evidence that was not substantial evidence to support the gang enhancement.
Section 186.22, subdivision (b) reads in relevant part: "(1)... [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶]... [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years." Section 186.22, subdivision (f) describes a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated [in the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
A. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence on appeal, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Kraft, at p. 1053.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
We apply the same deferential standard to determine the sufficiency of the gang enhancement evidence (People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Killebrew (2002) 103 Cal.App.4th 644, 660 (Killebrew)) as well as convictions based largely on circumstantial evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518.)
B. Status of Edgemont Criminals as a Criminal Street Gang
A "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), [of section 186.22, ] having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) The enumerated offenses include burglary. (§ 186.22, subd. (e)(11).) Within the meaning of section 186.22, " 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [enumerated offenses] provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.... " (§ 186.22, subd. (e).)
Defendant acknowledges that Investigator Colmer testified that Edgemont Criminals qualified as a criminal street gang. Indeed, Colmer explained that as of November 2006 and March 2007, it was an ongoing organization with well over 30 members, which had a common name, as well as identifying signs and symbols, and whose primary activities were burglaries, robberies and narcotics sales. (See In re Alexander L., supra, 149 Cal.App.4th at p. 611.) Rather, defendant faults the investigator's testimony about the circumstances of the crimes constituting the Edgemont Criminals gang's primary activities, arguing there were no "specifics" and asserting that Colmer's testimony about the police investigations into those crimes was conclusory and does not show any more than the occasional commission of specified crimes. We disagree.
Investigator Colmer testified about the primary activities of the Edgemont Criminals gang and opined they were criminal activities that constituted predicate crimes under the gang statute. His opinion was based on his discussions with original founding members of the gang and other Edgemont Criminals gang members knowledgeable about the gang's beginnings, his own personal investigations of over 20 Edgemont Criminals burglaries, his knowledge of other Edgemont Criminals gang burglaries that were investigated by other law enforcement officers at his station, his experience with the gang, and his review of police reports and statistics kept at their station regarding the gang. Thus, the investigator's testimony is not comparable to the testimony found insubstantial in In re Nathanial C., supra, 228 Cal.App.3d990, which constituted "nonspecific hearsay of a suspected shooting of one [gang] member by another" by an officer with "no personal knowledge of the incident" and who "only repeated what San Bruno police told him they believed about the shooting." (Id. at p. 1003.) The appellate court concluded that "[s]uch vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred." (Ibid.) Unlike the officer in In re Nathanial C., Investigator Colmer gave specific examples of crimes (residential burglaries, sales of rock cocaine, attempted murder) committed by other Edgemont Criminals gang members. There was no indication that these were the only cases with which he was familiar.
Nor is the expert's testimony at all like that given in In re Alexander L., supra, 149 Cal.App.4th at page 611. When the gang expert in that case was asked about the gang's primary activities, he testified that "he 'kn[e]w' that the gang had been involved in certain crimes. No specifics were elicited as to the circumstances of these crimes, or where, when, or how [he] had obtained the information. He did not directly testify that criminal activities constituted" the gang's primary activities. (Id. at pp. 611-612.) Thus, the reviewing court held the expert's testimony lacked foundation. (Id. at p. 612.)
In contrast to In re Alexander L., supra, 149 Cal.App.4th 605, here, Investigator Colmer had over 130 hours of gang-related training and seven years of experience in the Moreno Valley gang unit, patrolling gang turf areas on a daily basis and keeping a database of every gang member he contacted. He provided training to other law enforcement officers, the school district, chamber of commerce and city hall, and had testified as a gang expert more than 50 times. He testified regarding how he had obtained the information about Edgemont Criminals and provided further information as to the circumstances of its activities. We conclude his testimony regarding the Edgemont Criminals gang's primary activities was sufficient to support the jury's finding that the Edgemont Criminals was a criminal street gang. (Accord, People v. Martinez (2008) 158 Cal.App.4th 1324, 1330; People v. Vy, supra, 122 Cal.App.4th at p. 1226.).
C. For Benefit of and Specific Intent to Promote the Gang
Comparing Investigator Colmer's testimony to that of the experts in Ferraez, supra, 112 Cal.App.4th 925, In re Frank S. (2006) 141 Cal.App.4th 1192, and Killebrew, supra, 103 Cal.App.4th 644, defendant contends there is insufficient evidence that he committed any crimes for the benefit of or in association with the Edgemont Criminals gang, with the intent to benefit the gang. We conclude otherwise.
Investigator Colmer testified that both defendant and Nolan Taylor, with whom defendant committed the March 2, 2007 burglaries, were members of Edgemont Criminals, testimony that the jury obviously credited. He further testified that burglary was a primary activity of the Edgemont Criminals gang, and he gave specific examples of burglaries (and other crimes) committed by other gang members and the circumstances under which they were committed. Evidence that defendant committed his burglaries with Nolan Taylor, another gang member, and that they and their lookouts immediately attempted to pawn the items for money, further supports an inference that the crime was in association with the Edgemont Criminals gang. There was evidence that defendant had been the subject of a July 2005 court order requiring him to not associate with Taylor or any other gang members, and thus the jury could readily infer that defendant was well aware of Taylor's gang status, rejecting defendant's testimony to the contrary. Investigator Colmer provided evidence that the Edgemont Criminals gang would benefit from these burglaries because money and sometimes firearms were obtained for the gang's use. "Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) In Morales, the appellate court held a jury could reasonably infer both the requisite benefit/direction/association element and the specific intent element of the gang enhancement by evidence that a crime was committed by a gang member acting with fellow gang members. (Id. at p. 1198.) Evidence that the defendant intended to commit robberies and intended to commit them in association with persons who he knew to be members of his gang allowed the court to conclude it was "fairly inferable" that he had such specific intent. (Ibid.) The evidence here is similar, and it supports the finding that defendant committed the March 2, 2007 burglaries in association with the Edgemont Criminals gang, and for its benefit. (People v. Martinez, supra, 158 Cal.App.4th at p. 1332 [evidence that defendant knowingly commits the charged crime in association with another gang member is sufficient to support the jury's findings on a gang enhancement]; People v. Morales, at p. 1179.).
The foregoing evidence is also sufficient to support the jury's finding that defendant had the "specific intent to promote, further, or assist in any criminal conduct by gang members.... " (§ 186.22, subd. (b)(1).) Commission of a crime in concert with known gang members is enough to support an inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. (Villalobos (2006) 145 Cal.App.4th 310, 322; Morales, supra, 112 Cal.App.4th at p. 1198 [specific intent to benefit the gang is not required].) Investigator Colmer's testimony, given through his responses to hypothetical questions, was not tantamount to an expression of his " ' "general belief as to how the case should be decided" ' " as criticized by the court in Killebrew, supra, 103 Cal.App.4th at page 651. (Accord, People v. Ward (2005) 36 Cal.4th 186, 210-211.) His testimony was not like that of the expert in Killebrew, in which the expert presumably addressed the specific defendant's subjective state of mind (see People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3 [discussing uncertainty on this point]) and opined "that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun." (Killebrew, 103 Cal.App.4th at p. 652, fn. omitted.) But "Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator's intent; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial." (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551; see also Gonzalez, 38 Cal.4th at pp. 946-947, fn. 3.)
Investigator Colmer's testimony was based on proper hypotheticals and his conclusions were supported by a proper foundation as well as bolstered by the fact defendant acted with another known gang member in committing the March 2, 2007 burglaries. Accordingly, we are not compelled to reject Investigator Colmer's testimony under either Ferraez, supra, 112 Cal.App.4th 925 or In re Frank S., supra, 141 Cal.App.4th 1192. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 659-660 [reading Ferraez to hold that expert testimony that is "unsubstantiated" and lacking foundation is insufficient by itself to justify a true finding on a gang enhancement].)
D. Claim of Improper Profile Evidence
Defendant contends Investigator Colmer's opinions concerning what he believed was typical of gang members, as well as his testimony that the charged offenses were done with the specific intent to promote, further and/or assist members of the Edgemont Criminals gang, constitutes improper profile evidence "which does not amount to substantial evidence supporting the gang enhancement."
We find no authority for the proposition that so-called "profile evidence" - if admitted by the trial court without objection from the defendant - cannot be considered substantial evidence to support a gang enhancement allegation. Indeed, our high court explains that profile evidence "is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks foundation, or is more prejudicial than probative." (People v. Smith (2005) 35 Cal.4th 334, 357; see also People v. Prince (2007) 40 Cal.4th 1179, 1226.) Smith explains that "[p]rofile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt." (Smith, at p. 358.) Accordingly, absent some showing that defendant asserted timely and specific objections on proper grounds that would permit us to hold the challenged opinions inadmissible, we will not ignore Investigator Colmer's opinions in our review for substantial evidence. (See Evid. Code, § 353, subd. (a); People v. Rogers (1978) 21 Cal.3d 542, 548 ["questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal"].)
We nevertheless reject defendant's contention on grounds Investigator Colmer's opinion was not improper profile evidence. "A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime, " and "[p]rofile evidence is generally inadmissible to prove guilt" because it is " 'inherently prejudicial' " due to " 'the potential of including innocent people as well as the guilty' " within the profile. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084-1085.) Profile evidence unfairly relies upon the syllogism that "criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal." (Id. at p. 1085.) Such evidence invites the jury "to conclude that, because the defendant manifested some characteristics, he committed a crime." (Id. at pp. 1086-1087.) In Robbie, the appellate court concluded the trial court erred in admitting expert opinion testimony offered to prove the defendant's conduct was consistent with being a rapist. (Id. at pp. 1077, 1081.) The expert had testified that it was common for offenders to: (1) engage in small talk with their victims; (2) acquiesce to the victim's request not to have sexual intercourse and to negotiate with her regarding other sex acts; (3) return the victim to her neighborhood and ask questions about her life; and (4) compliment the victim. (Id. at p. 1082.)
Here, Investigator Colmer's testimony did not suggest defendant was guilty of any particular offense because he fit a certain pattern or profile that may be just as consistent with innocent conduct. The effect of the investigator's testimony was to help the jury objectively evaluate the prosecution's evidence concerning whether the offenses were gang related for purposes of the 186.22, subdivision (b) enhancement. Accordingly, he was permitted to answer hypothetical questions based on the facts of the burglaries in this case as to whether the offenses were Edgemont Criminals' gang-related activity committed for the benefit the gang. (See e.g., People v. Gardeley (1996) 14 Cal.4th 605, 617 [gang expert may testify to habits and customs of criminal street gangs beyond the common experience of most jurors]; People v. Gonzalez, supra, 38 Cal.4th at pp. 946-947.) These hypotheticals involved gang-relatedburglaries unlike facts in a profile such as driving a particular car on a particular road at a particular time, which may be entirely innocuous.
IV. Evidentiary Challenges
A. Adoptive Admission
Defendant contends the trial court erred by admitting as an adoptive admission his interview statement - "Yeah" - made to Investigator Mooney after Mooney recounted the types of irreplaceable and sentimental family heirloom items stolen from the victims and explained to defendant that they wanted them back. Specifically, defendant maintains his response to the investigator had no particular meaning, the evidence was cumulative, and the statement did not constitute an adoptive admission.
As recounted by the prosecutor, in questioning defendant following his arrest, Investigator Mooney had tried to get him to disclose the location of the items without success, and defendant never denied knowing about such items. Over defendant's relevance objection, the trial court allowed the prosecutor to question Mooney about defendant's statement and his ensuing failure to deny taking such items, reasoning that the defendant made an adoptive admission by implication when he "was pressed with specific items, and there was no denial...."
We need not decide whether defendant's statement met the requirements of an adoptive admission. (See People v. Combs (2004) 34 Cal.4th 821, 842-843 [explaining doctrine]; People v. Riel (2000) 22 Cal.4th 1153, 1189 [same].) As defendant acknowledges, by the time his statement was admitted into evidence, Investigator Mooney had already testified that defendant had confessed to committing the burglaries. The jury had already heard, through Mooney's testimony, that defendant had explained the chronological order of the March 2, 2007 burglaries, and described how he and the others entered the homes, using Hawkins and Butler as the lookouts and using phones to communicate. He admitted going to pawn shops in an attempt to sell the stolen goods. We conclude admission of the investigator's testimony about defendant's reaction to the sentimental nature of the stolen items was harmless under any standard of prejudice. (See People v. Carter (2003) 30 Cal.4th 1166, 1197.)
B. Admission of Prior Uncharged Crimes under Evidence Code Section 1101, Subdivision (b)
Defendant contends the trial court erred by admitting into evidence his statement, "Yeah. Finally got caught, " made in response to Deputy Sheriff Lamb's question: "First time you ever done that [committed a burglary]?" Over defense counsel's objection under Evidence Code section 352, the trial court ruled the evidence went to defendant's "intent." Defendant maintains the statement is inadmissible evidence of his prior crimes, with only the "slightest tendency to prove anything, " and admitted on an issue - intent - that was not actually in dispute.
We observe that what the jury heard about defendant's statement differs from the transcript of Investigator Colmer's interview, which shows the statement by defendant, in actual context, is ambiguous. The transcript indicates Investigator Colmer asked the defendant whether it was the first time he had ever committed a burglary; defendant responded, "Yeah. Finally got caught." (Italics added.) Because defendant began by answering the question in the affirmative, it is not clear that he admitted to committing prior burglaries. During trial, the prosecutor asked Investigator Colmer if during the interview he had asked defendant "if he had ever done this before, something to that effect?" The investigator then testified that defendant responded, "Yeah. Finally got caught." For purposes of assessing prejudice, we will assume defendant's statement was an acknowledgement that he had committed prior burglaries.
Again, we resolve this evidentiary contention on grounds defendant cannot establish prejudice from admission of the statement based on the entirety of the record, even if we assume its admission was an abuse of discretion. Defendant bases his prejudice argument on grounds the evidence of his active participation in a criminal gang and gang enhancement evidence was close. Citing numerous cases, beginning with People v. Bain (1971) 5 Cal.3d 839 and People v. Stein (1979) 94 Cal.App.3d 235, he argues that "even if the evidence is adjudged sufficient to support the verdict, the rule is that any substantial error tending to discredit the defense or corroborate the prosecution must be deemed prejudicial." He maintains that because the evidence was so prejudicial, the jury was "probably left with the feeling that [he] had 'gotten off easy'[] since the prior burglaries had not been prosecuted" and "may well have been tempted to 'redress' this situation by ensuring that he received the additional penalties which flowed" from the gang conviction and enhancement. He also maintains the jury was left with the impression that he should be punished as a bad character.
The arguments do not persuade us. Defendant's statement - "Finally got caught" - is simply not the sort of express or specific evidence of uncharged offenses from which there is inherent or substantial prejudicial effect. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404, superceded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) Further, as to the count 5 criminal street gang offense and the March 2, 2007 burglary offenses on which the jury found the gang enhancements true, we disagree that the state of the evidence allows us to conclude it was "extremely close" to invoke the so-called "refinement" of the Watson prejudice rule expressed in the California Supreme Court cases relied upon in People v. Stein, supra, 94 Cal.App.3dat page 240. (See People v. Babbitt (1988) 45 Cal.3d 660, 689 [declining to decide whether Watson was modified but rejecting in any event the application of the rule where the case was not close].) Finally, Investigator Colmer's testimony on this point, in which he states he asked the question and took defendant's statement "to see if he'd admit to any other burglaries he might have committed, " took only one page of the reporter's transcript of a multi-day jury trial. It was not a highlight of the People's case, and the statement was not emphasized or mentioned during the People's closing argument. Indeed, the jury found not true the gang enhancement allegation attached to count 1, so we can readily say the jury did not accept the gang evidence and any purported prior crime evidence uncritically. (Accord, People v. Williams (2009) 170 Cal.App.4th 587, 612-613.) Defendant has not shown it is reasonably probable he would have had a more favorable result absent admission of the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Williams, at pp. 612-613 [applying Watson standard to prior crimes evidence in gang case].) On this record, any assumed error is harmless.
V. Instruction with CALCRIM No. 1400
Defendant contends CALCRIM No. 1400, given by the trial court in this case, is an argumentative, pinpoint instruction that favors the prosecution, requiring reversal of his conviction for active participation in a criminal street gang (§ 186.22, subd. (a)). He challenges only the portions of the instruction that describe what the People do not have to prove (see italicized portions of footnote 8, ante), arguing they are "unnecessary and duplicative" because the language is covered in other portions of the instruction as were the challenged instructions in People v. Gurule (2002) 28 Cal.4th 557 (Gurule) and People v. Bolden (2002) 29 Cal.4th 515 (Bolden). He maintains that by commenting on matters that do not have to be proven, the trial court essentially made the prosecution's argument for the prosecutor. He maintains the erroneous instruction was prejudicial again because the case was assertedly "close."
In relevant part, CALCRIM No. 1400 was read to the jury as follows: "Defendant is charged in Counts 2 and 5 with participating in a criminal street gang in violation of Penal Code [s]ection 186.22, [s]ubdivision (a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] First, the defendant actively participated in a criminal street gang; [¶] Secondly, when the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] Thirdly, defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: [¶] Directly and actively committing a felony offense; [¶] Or [¶] (b) aiding and abetting a felony offense. [¶] Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. [¶] The People do not have to prove that the defendant devoted all or a substantial part of his time or efforts to the gang or that he was an actual member of the gang. [¶] A criminal street gang is an ongoing organization, association, or group of three or more persons, whether formal or informal, that: [¶] First, has a common name or common identifying sign or symbol; [¶] Secondly, it has as one or more of its primary activities the commission of burglary, possession for sales of controlled substances, or attempted murder; [¶] Thirdly, whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity. [¶] In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group. [¶]... [¶] The People do not need to prove that every perpetrator involved in a pattern of criminal gang activity, if any, was a member of the alleged criminal street gang at the time when such activity was taking place. [¶] The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related. [¶] If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime, and whether a pattern of criminal gang activity has been proved. [¶] You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed, but you do not have to all agree on which crimes were committed." (Italics added.)
Defendant is correct that a court may not give an argumentative or duplicative jury instruction. (See People v. Kraft, supra, 23 Cal.4th at p. 1062; Bolden, supra, 29 Cal.4th at p. 558.) However, we disagree with defendant's assertion that the challenged portions of CALCRIM No. 1400 are either duplicative or an argumentative pinpoint instruction. "An instruction is argumentative when it recites facts drawn from the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law. [Citation.] 'A jury instruction is [also] argumentative when it is " 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.' " ' " (People v. Campos (2007) 156 Cal.App.4th 1228, 1244; see People v. Lewis (2001) 26 Cal.4th 334, 380.) On their face, the challenged portions of CALCRIM No. 1400 do not recite facts drawn from the evidence, or impermissibly invite the jury to draw any inferences favorable to the prosecution from specified items of evidence.
Nor are the challenged portions of CALCRIM No. 1400 at all similar to the defense-proffered instructions found duplicative in Gurule, supra, 28 Cal.4th at page 660 [proposed instruction that the "absence of mitigating evidence could not be considered aggravating" was duplicative of instruction that specified factors can "only be considered by you" as mitigating or aggravating] or Bolden, supra, 29 Cal.4th at pages 558-559 [defendant's requested special instruction as to burden of proof on robbery element of lack of consent to taking was duplicative of accurate and complete instructions of prosecution's burden of proof and elements of robbery; the point of the requested instruction was readily apparent from instructions given, and circumstances of case did not suggest a need for additional clarification]. Rather, instructing the jury that the People do not have to prove that "the defendant devoted all or a substantial part of his time or efforts to the gang, or that he was an actual member of the gang" clarifies for the jury the active participation element in the language of section 186.22, subdivision (i). The point of that part of the instruction is not "readily apparent" (Bolden, at p. 559) from the other portions of instruction, and it helps the jury understand what constitutes involvement in a way " 'that is more than nominal or passive' " (see People v. Castenada (2000) 23 Cal.4th 743, 752) - without merely reiterating language from the remaining parts of CALCRIM No. 1400. Likewise, telling the jury that the People need not prove "every perpetrator involved in the pattern of criminal gang activity... was a member of the alleged criminal street gang at the time when such activity was taking place" and that the crimes establishing a pattern of criminal gang activity need not be gang-related, clarifies or explains the elements of the offense without merely reiterating or restating other portions of the instructions. Defendant's claim of instructional error is without merit.
VI. Claims of Prosecutorial and "Government" Misconduct
Defendant contends the prosecutor, as well as sheriff's officers, committed numerous acts of prejudicial misconduct during trial and closing arguments. In particular, he maintains the prosecutor committed misconduct during the trial by attempting to elicit his testimony about whether he would be "surprised" that another Edgemont Criminals gang member committed various burglaries; seeking to tarnish his character by attempting to recount details of a prior attempted robbery he had committed with Nolan Taylor; attempting to play on the jury's sympathies by admitting a portion of tape of his interrogation in which the officer stated the items stolen from the victims had sentimental value; asking a series of assertedly leading and argumentative questions during Investigator Colmer's examination and during defendant's cross-examination designed to give the prosecutor an additional chance to argue her case to the jury; engaging in improper means to prove he was an Edgemont Criminals gang member by asking questions about information that she assertedly knew Investigator Colmer had obtained from confidential informants; asking questions calling for irrelevant information including other crimes evidence, advice of his probation officer about how he should change his lifestyle, and whether his daughter was on welfare; asking a question of Investigator Colmer calling for a legal conclusion; asking him questions calling for speculative answers; asking Investigator Colmer questions purportedly lacking a proper foundation about his contacts with other rival gang members; attempting to get defendant to repeat details of the March 2, 2007 burglaries after eliciting his testimony that he had not talked with the other cohorts in advance about them; and attempting to introduce improper rebuttal evidence via Deputy Sheriff Lamb and Investigator Colmer. He also contends the prosecutor committed misconduct in her closing argument by making an argument about his refusal to answer certain questions.
Defendant's first example of an assertedly argumentative question was asked by defense counsel during Investigator Colmer's cross-examination: "Why is he [defendant] going to confess to a residential burglary but deny it's for a gang? How is that second - how is that self-serving and you can't believe that?" The prosecutor objected to the question as argumentative and the trial court sustained the objection. The claim of prosecutorial misconduct in that instance is patently without merit.
With very few exceptions, these contentions involve questions to which the trial court sustained defense counsel's objections or struck the objectionable testimony. Absent a showing otherwise, we presume the jury followed the trial court's cautionary instructions not to consider testimony that was the subject of a successful objection. (See People v. Mills (2010) 48 Cal.4th 158, 199; People v. Smithey (1999) 20 Cal.4th 936, 961, citing CALJIC No. 1.02; see CALCRIM No. 222 ["Nothing that the attorneys say is evidence.... [¶] During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose"].) We also presume the jury followed the court's instruction that the attorneys' questions are not evidence. In those instances, the defendant's challenges on grounds of misconduct are meritless.
Further, a claim of prosecutorial misconduct must be raised by timely and specific objection on misconduct grounds and request for admonition that the jury disregard the impropriety. (People v. Parson (2008) 44 Cal.4th 332, 359; People v. Gray (2005) 37 Cal.4th 168, 215; People v. McDermott (2002) 28 Cal.4th 946, 1001.) To avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) Defendant acknowledges he did not make a timely request for a curative jury admonition, and we observe that in no instance did he raise any objection on the specific ground of misconduct. He has thus forfeited these claims.
However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request." (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
Of course, defendant maintains he should be excused from requesting an admonition because a prompt jury admonition assertedly "could not have unrung the bell" given the "many instances of prejudicial questions and comments by the prosecution." However, "[a] defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough." (People v. Panah (2005) 35 Cal.4th 395, 462.) To assess his claim of futility, we have reviewed the record in detail. In particular, it demonstrates that the trial court was especially receptive to defense counsel's objections as it sustained virtually all of them and granted defense counsel's requests to strike. Defendant points to nothing in the record showing the court somehow gave its imprimatur to counsel's statements or otherwise indicated it was disinclined to consider further action. (E.g., People v. Hill (1998) 17 Cal.4th 800, 821-822.) Had counsel sought jury admonishments from the trial court as he should have done, we have little doubt the trial court would have granted his request. There is no indication the court would have declined to take appropriate action on a claim of misconduct.
Further, the record is not indicative of purposeful misconduct, it reflects in large part the prosecutor's inartful and objectionable form of questioning. We cannot characterize the record as one where the prosecutor asked questions with the apparent intent to elicit references to matters that had already been excluded from evidence. Nor can we agree that the questioning is comparable to the circumstances of People v. Hill, supra, 17 Cal.4th 800, in which the prosecutor committed "continual misconduct" that was "coupled with the trial court's failure to rein in her excesses" that resulted in the court's conclusion that any defense requests for jury admonitions would be futile and counterproductive to his client. (Id. at p. 821.) Hill differs in important respects from this case. There, the misconduct was monumental, ranging in type from misstatements of the evidence that rose to "outright falsehoods, " to misstatements of law to sarcastic comments about the defendant and defense counsel. In Hill, the defense counsel had "repeatedly but vainly objected to try to curb" the "extreme" and "pervasive" misconduct. (People v. Hillhouse (2002) 27 Cal.4th 469, 501, 502.) Our Supreme Court concluded under such circumstances it would have been futile and counterproductive to continue making objections. (Hill, 17 Cal.4th at p. 821.) The prosecutor's questions in this case do not establish " 'a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process" ' " nor did they render the trial fundamentally unfair by involving the use of reprehensible methods. (Hill, at p. 819; accord, Hillhouse, at pp. 501-502; People v. Dykes (2009) 46 Cal.4th 731, 774-775.)
Defendant does raise as misconduct a point during his cross-examination where defense counsel unsuccessfully asserted continuing objections on grounds they were irrelevant, improper, and would "inflame the passions of the jury." In that instance, the prosecutor asked the defendant a line of questions about his actions in kicking in the door of the Perrino home and damaging it in November 2006, and got him to confirm he went through the rooms of the home looking for various items of value. Because the prosecutor was seeking to demonstrate for the jury that the Edgemont Criminals gang committed burglaries in particular ways, the questions as to how defendant went about burglarizing the home sought relevant evidence and they did not constitute misconduct. In any event, these questions were not so "intemperate, egregious, or reprehensible as to constitute prosecutorial misconduct under state law or federal constitutional law." (People v. Mills, supra, 48 Cal.4th 158, 199, citing People v. Abilez (2007) 41 Cal.4th 472, 494.)
Even if we assume defendant properly preserved the issues for appeal, and some of the prosecutor's questions and argument amounted to misconduct, we can find no prejudicial misconduct on this record. The prosecutor's single remark during closing argument touching on defendant's refusal to answer certain questions was fleeting, and the trial court sustained defense counsel's objection in any event. As for the prosecutor's questions, he has not demonstrated a reasonable possibility a result more favorable to him would have been reached without them. (People v. Crew (2003) 31 Cal.4th 822, 839.) Again, we presume the jurors followed the trial court's cautionary instructions in this regard. Although some of the prosecutor's questions that defendant now complains about were less than artful, and some were persistent in her attempt to elicit information, they did not seek information in violation of any court order and when viewed in the context of this case as a whole, such remarks and argument cannot be shown to have been prejudicial. (Ibid.)
VII. Sentencing
Defendant contends the trial court erred in sentencing him by failing to conduct an adequate intracase proportionality analysis, suggesting his sentence may violate the proscription against cruel and unusual punishment under Article 1, Section 6 of the California Constitution. According to defendant, the trial court should have compared his sentence to that given to Nolan Taylor, who was an "equal participant" in the March 2, 2007 burglaries. Defense counsel pointed out to the trial court that Taylor received a seven-year prison term, while defendant was facing a longer sentence, and he asked that defendant be sentenced to 10 years and 4 months. The trial court sentenced defendant to 13 years and 4 months in prison, consisting of a four-year midterm plus a consecutive five-year gang enhancement on count 3, a consecutive one-third midterm on count 4 (1 year, 4 months) and its accompanying gang enhancement (1 year, 8 months), a consecutive one-third midterm on the count 1 burglary (1 year, 4 months), a concurrent two-year midterm on count 5, and a two-year midterm, stayed under section 654, on count 6. Defendant asks that we reverse the judgment and remand the case to the trial court for resentencing to give "due weight" to intracase proportionality.
We cannot say the trial court failed to give due weight to Taylor's sentence. After defense counsel urged the court to consider Taylor's lesser sentence, the prosecutor argued it was not an appropriate consideration in sentencing defendant, explaining at length the procedural differences between Taylor's circumstances and acceptance of responsibility versus those relating to defendant. The trial court disagreed with her: "I recognize - I don't believe it's inappropriate... to give some consideration to penalties given to other co-defendants in similar situations. I recognize it's not exactly the same situation with respect to [defendant], but I tend to think that he was sincere in thinking that he doesn't have gang involvement." The court nevertheless proceeded to sentence defendant to 13 years and 4 months.
Furthermore, defendant is incorrect about the nature of intracase proportionality. Such review is directed to an assessment of defendant's personal culpability; it does not include a review of Taylor's sentence. (See People v. Ledesma (2006) 39 Cal.4th 641, 744 ["Although [intracase] proportionality analysis takes into account the defendant's relative responsibility for the crime as compared to others who were involved, the disposition of codefendants' cases is not part of the analysis"]; People v. Vieira (2005) 35 Cal.4th 264, 303; People v. Anderson (2001) 25 Cal.4th 543, 602; People v. Riel, supra, 22 Cal.4th at p. 1223.) In Riel, our Supreme Court explained that other authorities should not be interpreted as holding such an analysis is required. (Riel, at p. 1224, fn. 12 [limiting People v. Cox (1991) 53 Cal.3d 618, 691 (disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), which in turned relied on People v. Dillon (1983) 34 Cal.3d 441].)
Here, defendant does not meaningfully analyze the circumstances of the offense including its motive, the extent of his involvement, the manner in which the crime was committed, the consequences of his acts, and his personal characteristics including age, prior criminality, and mental capabilities. (People v. Rogers (2006) 39 Cal.4th 826, 894 [reciting factors to determine whether defendant's sentence is disproportionate to his individual culpability]; People v. Steele (2002) 27 Cal.4th 1230, 1269.) Citing People v. Dillon, supra, 34 Cal.3d at page 488, he merely argues because he received 12 years for the same offenses warranting a 7 year sentence for Taylor, it is "apparent that 'the excessiveness of [appellant's] punishment is underscored by the [lesser punishment handed out to the... other [defendant] who participated with him in the same offenses.' " He has not shown any sentencing error.
VIII. Correction of Abstract of Judgment
Defendant points out that the abstract of judgment erroneously shows that his convictions were the result of guilty pleas rather than jury verdicts. We agree, as does respondent, that the abstract is in error on that point. Accordingly we direct the trial court to correct the abstract of judgment to reflect that his convictions were by jury verdicts.
DISPOSITION
The judgment is affirmed as modified to show defendant's convictions are the result of jury verdicts. The trial court is directed to prepare a corrected abstract of judgment in accordance with this opinion and forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P.J., NARES, J.